Fikri v. Best Buy, Inc.

[Cite as Fikri v. Best Buy, Inc., 2013-Ohio-4869.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
ERGUN FIKRI, :
Plaintiff-Appellant, : CASE NO. CA2013-06-051
: OPINION
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:
BEST BUY, INC., et al., :
Defendants-Appellees. :
CIVIL APPEAL FROM MASON MUNICIPAL COURT
Case No. CVI00098
Ergun Fikri, 12128 S. Pine Drive, Apt. 295, Cincinnati, Ohio 45241, plaintiff-appellant, pro se
Mannion & Gray Co., L.P.A., Judd R. Uhl, Katherine L. Kennedy, 909 Wright's Summit
Parkway, Suite 230, Ft. Wright, KY 41011-2783, for defendants-appellees, Best Buy and
Timothy Roberson
RINGLAND, P.J.
{¶ 1} Plaintiff-appellant, Ergun Fikri, appeals from the Mason Municipal Court
decision granting judgment to defendant-appellee, Best Buy Co. For the reasons discussed
below, we affirm the judgment of the trial court.1
1. Pursuant to Loc.R. 6(A), we sua sponte remove this case from the accelerated calendar and place it on the
regular calendar for purposes of issuing this opinion.
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{¶ 2} This action was filed in response to a number of computer-related problems
and technical support issues that appellant experienced while a customer at Best Buy. On
February 4, 2012, appellant purchased a Toshiba laptop computer from the Best Buy store
located in Mason, Ohio. The computer came with a one-year manufacturer's warranty, which
was limited to correcting defects in the computer's hardware. In addition, appellant
purchased a separate two-year service contract with Best Buy to provide technical support on
the new Toshiba computer and his existing Dell computer.
{¶ 3} Appellant began experiencing problems with his Toshiba computer within the
first several months of his purchase and contacted Best Buy. On July 16, 2012, Best Buy
diagnosed the problem as a corrupt operating system and recommended that his computer
be sent to its Louisville, Kentucky center for warranty repairs. Since appellant could not be
without his computer at that time, he elected to take the computer home and wait to fix it at a
more convenient time.
{¶ 4} On August 16, 2012, appellant returned to the store to have his computer
serviced. In the Best Buy service order dated the same day, the service technician noted
problems with the internet and also that the computer "makes loud noises on startup and
waking from sleep." The service technician at Best Buy also performed a spyware and virus
screen, in which he noted that the scan detected nineteen spyware programs. As a result of
the problems appellant was experiencing with the computer, Best Buy sent the machine to its
Chicago facility which replaced the mother board, HDD hard drive, and Wi-Fi hardware
systems. Pursuant to the manufacturer's warranty still in place, appellant was not charged
for any of those services.
{¶ 5} On August 28, 2012, appellant received his computer back from Best Buy.
Appellant testified at trial that the software and spyware problems were corrected following
the replacement of those parts. However, appellant was dissatisfied with the work done and
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raised a number of complaints regarding his experience with Best Buy. Appellant alleged
that Best Buy negligently or intentionally replaced his Toshiba power cord and battery with a
used and defective power cord and battery. He also disagreed with Best Buy's decision to
replace the Toshiba hardware, rather than just delete the spyware, which he believed would
have corrected the problem. In essence, appellant alleged that Best Buy's actions were
motivated by a scheme to harvest component parts for re-use and re-sale for its own
pecuniary gain.
{¶ 6} In addition to his complaints regarding the Toshiba computer, appellant also
alleged that Best Buy failed to service his Dell computer, which was also covered under the
two-year services contract with Best Buy. According to him, Best Buy declined to work on the
Dell laptop computer, which was also infected with spyware. That computer was
subsequently repaired by Office Depot and billed to appellant.
{¶ 7} On October 29, 2012, appellant filed this action, pro se, in the Mason Municipal
Court, Small Claims Division, alleging violations of the Ohio Consumer Sales Protection Act
for Best Buy's actions with respect to the Toshiba and the Dell computers. The case was
heard before a magistrate on February 6, 2013. The magistrate found appellant failed to
establish any theory of liability and entered judgment in favor of Best Buy. The trial court
adopted the magistrate's decision. Appellant now appeals the decision of the Mason
Municipal Court, raising the following two assignments of error:
{¶ 8} THE TRIAL COURT ERRED IN ITS APPLICATION OF OHIO SALES
PRACTICES ACT [sic] 1345.02 AND 1345.03 TO THIS CASE.
{¶ 9} THE TRIAL JUDGE AND THE MAGISTRATE, IN THE LOWER COURT,
ERRED IN THEIR FACTS, AS WELL AS THEIR APPLICATION OF 1345.02 AND 1345.03
RESULTING IN THEIR WRONG [sic] VERDICT
{¶ 10} As an initial matter, we note that appellant raises two assignments of error,
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which essentially address the same issue. However, in his brief, appellant makes a number
of additional arguments unrelated to his assignments of error, but which relate to arguments
he raised at trial. Therefore, it appears that appellant is contesting the ultimate decision
made by the trial court, and not solely the issues relating to the Consumer Sales Protection
Act.
{¶ 11} In light of appellant's pro se status and Ohio's policy that cases should be
decided on their merits, we allow pro se litigants "reasonable leeway" in their pleadings so as
to decide the issues on the merits, as opposed to the technicalities. Bramel v. Lawhun, 12th
Dist. Brown No. CA98-03-006, 1998 WL 789640 (Nov. 16, 1998), at *3; see also Sherlock v.
Myers, 9th Dist. Summit No. 22071, 2004-Ohio-5178, at ¶ 3. However, "a pro se litigant is
presumed to have knowledge of the law and correct legal procedures so that he remains
subject to the same rules and procedures to which represented litigants are bound. He is not
given greater rights than represented parties, and must bear the consequences of his
mistakes. Murphy-Kesling v. Kesling, 9th Dist. Summit No. 24176, 2009-Ohio-2560, at ¶13.
{¶ 12} This case was adjudicated after a full hearing in the Mason Municipal Court. As
an appellate court, our review of a trial court's decision is limited to whether the judgment is
against the manifest weight of the evidence. Jones v. Homes, 12th Dist. Butler No. CA2012-
07-133, 2013-Ohio-448, ¶ 24. The Ohio Supreme Court has confirmed that when reviewing
the manifest weight of the evidence, an appellate court conducts the same analysis in both
criminal and civil cases. Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, ¶ 12. As
such, we weigh the evidence and all reasonable inferences, consider the credibility of
witnesses, and determine whether in resolving conflicts in the evidence, the finder of fact
"clearly lost its way and created such a manifest miscarriage of justice that the [judgment]
must be reversed and a new trial ordered." Id. at ¶ 20, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387 (1997).
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{¶ 13} If the evidence presented to the trial court is susceptible to more than one
interpretation, we are bound to give it the construction that is consistent with the trial court's
judgment and finding of facts. Jones v. Holmes, 12th Dist. Butler No. CA2012-07-133, 2013-
Ohio-448, ¶ 24. A reviewing court should not reverse a decision simply because it holds a
different opinion concerning the credibility of the witnesses and the evidence submitted
before the trial court. Artisan & Truckers Cas. Co. v. JMK Transp., L.L.C., 12th Dist.
Clermont No. CA2013-01-004, 2013-Ohio-3577, ¶ 25. The underlying rationale of this
deferential standard rests with the understanding that "the trial judge is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony." Mike Castrucci Ford
Sales, Inc. v. Hoover, 12th Dist. Clermont No. CA2007-02-022, 2008-Ohio-1358, at ¶ 19,
quoting Seasons Coal Co., Inc. v. City of Cleveland, 10 Ohio St.3d 77, 80 (1984).
{¶ 14} The thrust of plaintiff's action involves Best Buy's alleged violation of the Ohio
Consumer Sales Protection Act. The CSPA provides, "[n]o supplier shall commit an unfair or
deceptive act or practice in connection with a consumer transaction. Such an unfair or
deceptive act or practice by a supplier violates this section whether it occurs before, during,
or after the transaction." R.C. 1345.02(A); Smedley v. Drug Mart, Inc., 12th Dist. Fayette No.
CA2010-05-010, 2010-Ohio-5665, ¶ 18. The CSPA generally defines "'unfair or deceptive
consumer sales practices' as those that mislead consumers about the nature of the product
they are receiving, while 'unconscionable acts or practices' relate to a supplier manipulating a
consumer's understanding of the nature of the transaction at issue." Whitaker v. M.T.
Automotive, Inc., 111 Ohio St.3d 177, 2006-Ohio-5481, at ¶ 10, quoting Johnson v. Microsoft
Corp., 106 Ohio St.3d 278, 2005-Ohio-4985, at ¶ 24. A nonexhaustive list of practices
defined as "unfair" or "deceptive" is contained in R.C. 1345.02(B). Schneble v. Stark, 12th
Dist. Warren Nos. CA2011-06-063, CA2011-06-064, 2012-Ohio-3130, ¶ 47.
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{¶ 15} At trial, appellant testified on his own behalf as to the problems he experienced
with both his Toshiba and Dell computers. He testified that he had purchased his Toshiba
computer from Best Buy, and elected to put both his Toshiba computer and his Dell computer
under the service contract with Best Buy. He also testified as to the defects associated with
both computers, the potential causes of those defects, the hardships he experienced in
resolving those issues, as well as his own theories accounting for Best Buy's actions.
Matthew Konn, the general manager of the Best Buy store located in Mason, Ohio testified
on behalf of Best Buy. His testimony largely related to the standard practices and
procedures of the company.
{¶ 16} After considering the evidence presented, the trial court concluded that
appellant failed to prove his case by a preponderance of the evidence. Based on our review
of the record, there is competent, credible evidence to support the trial court's factual findings
and its decision was not against the manifest weight of the evidence. Accordingly, we affirm
the judgment of the trial court.
{¶ 17} Appellant alleges three different acts under his first assignment of error, which
he believes constitute "unconscionable" or "deceptive" actions under the CSPA. Namely,
appellant points to the number of defects in the computer that he purchased, an allegation
that Best Buy ordered replacement parts under his manufacturer's warranty in order to further
a "harvesting" scheme, and the failure of Best Buy to inform him about the spyware that was
found on his computer. In its decision, the trial court briefly summarized appellant's
testimony, which "included theories of unnecessary replacement parts, a suspicion that Best
Buy had returned a defective power cord to him so that he would have to buy a new one, and
a Wikipedia description of Spyware. Further, his only other testimony presented for unfair or
deceptive sales practices were other customer reviews with the Better Business Bureau."
{¶ 18} With respect to the quality of his computer, appellant first argues that the
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definition of "deception" under R.C. 1345.02 is met in the present case based on the
"magnitude and total number of defects" associated with his laptop. The trial court heard
appellant's testimony as to the numerous problems that he experienced with his computer
and the steps taken to resolve the issue. Appellant testified at length about the stress, loss
of business productivity, and numerous trips to the store that he had to make in order to
resolve the issue.
{¶ 19} However, merely because a customer experiences difficulties with a product
after its purchase does not invariably mean that the CSPA was violated. The burden of proof
is on the party bringing the action to prove the facts necessary for his case by a
preponderance of the evidence. Adaptable Custom Homes, Inc. v. Affordable Luxury
Homes, Inc., 12th Dist. Clinton No. CA91-05-008, 1992 WL 29236 (Feb. 18, 1992). In this
case, appellant failed to present any evidence that the computer problems were caused by
Best Buy. To the contrary, Best Buy proffered testimony showing that spyware can come
onto any computer through a number of ways, including simple web browsing. After having
considered all of the evidence introduced on this matter, we find the trial court's decision that
there was no violation of the CSPA based on the defects in the computer was not against the
manifest weight of the evidence.
{¶ 20} Appellant next asserts that Best Buy engaged in unconscionable sales
practices under R.C. 1345.02(B)(7) in the sale of his laptop by unnecessarily replacing
component parts of his computer when they were not needed. In support, appellant entered
a work order into the record, which shows handwritten notes by a Best Buy employee
indicating that Best Buy conducted a spyware and virus scan of his computer, but failed to
remove the spyware that was found. Appellant alleges that Best Buy chose to obtain
replacement parts under his warranty with the manufacturer, instead of simply deleting the
problematic spyware software. Appellant's theory is that Best Buy took these actions in order
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to further a self-dealing, "harvesting" arrangement whereby Best Buy would order
unnecessary replacement parts from a manufacturer under the manufacturer's warranty and
then re-use those component parts in their own operations. He attempts to support this
allegation with another exhibit that states in the fine print of a service document that Best Buy
is authorized to "[u]se new or rebuilt replacement parts that perform to the factory operational
specifications of the product."
{¶ 21} Best Buy denied those allegations at trial, offering testimony that the notes
made by the employee were only preliminary notes and did not reflect the actual removal of
spyware. Best Buy also introduced testimony that the spyware was removed at a later time.
Other than appellant's own theory, there was no evidence placed in the record demonstrating
that Best Buy was involved in an illegal harvesting scheme. As a result, the trial court
weighed the conflicting evidence of the two sides and found that appellant had not proven his
case by a preponderance of the evidence. Based on our review of the record, we find the
trial court's conclusion that Best Buy did not violate the CSPA is supported by competent,
credible evidence and is not against the manifest weight of the evidence.
{¶ 22} Finally, appellant contends that the trial court erred in not finding Best Buy's
actions unconscionable because they allegedly failed to inform him of the existence of
spyware until ten days after it was discovered on his computer. However, appellant failed to
present any evidence demonstrating why this constitutes an unconscionable action or that a
ten-day time period was unreasonable or excessive. Accordingly, the trial court's decision
finding that appellant failed to prove a violation of the CSPA was not against the manifest
weight of the evidence.
{¶ 23} Under appellant's second assignment of error, he raises three additional issues
concerning the trial court's decision.
{¶ 24} First, appellant argues that his power cord and battery were switched and
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replaced while the computer was in the possession of Best Buy. He contends that the trial
court erred when it concluded that Best Buy was not liable for the damages associated with
the purchase of a new power cord. Appellant testified that, when he gave the computer to
Best Buy, the power cord and battery were new and undamaged. However, he claimed that
when the computer was returned to him, the power cord and battery both needed to be
replaced. He alleged that Best Buy was responsible for this because "a power cord does not
wear out in six months, let alone in ten days when it was in their possession." Accordingly,
appellant argued that Best Buy had intentionally or negligently exchanged his power cord
with this defective power cord.
{¶ 25} At trial, Best Buy introduced testimony showing that there were internal
procedures in place for preventing a switch in component parts. According to testimony
offered at trial, Best Buy places stickers on each customer item to ensure that the proper
component parts stay together. Best Buy also introduced testimony that the power cord
appeared to be damaged as a result of normal wear and tear. The trial court concluded that
appellant failed to demonstrate by a preponderance of the evidence that the items were
actually switched. Our review of the record demonstrates sufficient, competent and credible
evidence to support the trial court's decision. Accordingly, the trial court's decision was not in
error.
{¶ 26} Next, appellant argues that the trial court erred in finding that there was no
breach of contract with respect to the service contract covering both his Toshiba and Dell
computers. Under the breach of contract argument, appellant raises a number of issues
including: failure to install printer drivers, failure to remove spyware, failure to service the Dell
computer, as well as an allegation that work was performed on his computer without his
consent.
{¶ 27} The trial court concluded that appellant failed to establish that Best Buy
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breached any contract. While the trial court found that appellant had purchased a two-year
service contract with Best Buy, the court determined that appellant did not introduce sufficient
evidence to show that Best Buy breached that service contract. After careful consideration,
we cannot conclude that the trial court erred in finding that Best Buy did not breach its service
contract with appellant. The record demonstrates that Best Buy serviced appellant's
computers multiple times pursuant to the service agreement in place between the parties.
Appellant testified that the software issue is now corrected on both computers. While
appellant ultimately took his Dell laptop to another store to be fixed, he did not present any
evidence showing that Best Buy refused to honor its service contract. Simply, as noted by
the trial court, appellant's "trial evidence provided no coherent explanation linking his Dell
computer to a claim for damages against Best Buy." Accordingly, there was no error in the
trial court's determination that Best Buy did not breach the service contract with appellant.
{¶ 28} Finally, appellant argues that the trial court erred in deciding that his damages
were not proven or justified. While a prevailing party is entitled to damages under the CSPA,
it is incumbent on the plaintiff to prove by a preponderance of the evidence that a prohibited
act has occurred. Since plaintiff failed to prove that he is entitled to recovery for the alleged
violations by Best Buy, he is not entitled to any money damages.
{¶ 29} Accordingly, appellant's second assignment of error is overruled.
{¶ 30} Judgment affirmed.
PIPER and M. POWELL, JJ., concur.
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