[Cite as Fikri v. Best Buy, Inc.,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

ERGUN FIKRI, :

Plaintiff-Appellant, : CASE NO. CA2013-06-051

: OPINION - vs - 11/4/2013 :

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. Warren CA2013-06-051

{¶ 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 -2- Warren CA2013-06-051

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, -3- Warren CA2013-06-051

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,

(Nov. 16, 1998), at *3; see also Sherlock v.

Myers, 9th Dist. Summit No. 22071,

. 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,

, 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,

. 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,

,

. 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,

(1997). -4- Warren CA2013-06-051

{¶ 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,

. 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,

,

quoting Seasons Coal Co., Inc. v. City of Cleveland,

(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,

, ¶ 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.,

,

, at ¶ 10, quoting Johnson v. Microsoft

Corp.,

,

, 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,

, ¶ 47. -5- Warren CA2013-06-051

{¶ 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 -6- Warren CA2013-06-051

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,

(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 -7- Warren CA2013-06-051

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 -8- Warren CA2013-06-051

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 -9- Warren CA2013-06-051

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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