COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69495 NANCY FERJUTZ : : Plaintiff-appellant : : JOURNAL ENTRY -vs- : AND : OPINION HABITAT WALLPAPER & BLINDS, INC.: : Defendant-appellee : : DATE OF ANNOUNCEMENT : OF DECISION : JULY 3, 1996 CHARACTER OF PROCEEDING : Civil appeal from Berea Municipal Court : Case No. 94-CVF-2251 JUDGMENT : Affirmed. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLANT: FOR DEFENDANT-APPELLEE: Joseph V. Hatala, Esq. Alan W. Scheufler, Esq. Donald H. Powers, Esq. Garfield, Lasko & Rokakis Powers & Associates Renaissance on Playhouse 2 Berea Commons, Suite 215 Square P.O. Box 1059 1350 Euclid Avenue Berea, Ohio 44017 Suite 1500 Cleveland, Ohio 44115-1815 -2- HARPER, J.: Plaintiff-appellant, Nancy Ferjutz ("Ms. Ferjutz"), appeals from the Berea Municipal Court's judgment against her and in favor of defendant-appellee, Habitat Wallpaper and Blinds, Inc. ("Habitat"). For the reasons herein, we affirm. I. Habitat is a national retail store that specializes in manufacturing or producing various window treatments, including custom-made blinds, shades and draperies. Habitat published weekly advertisements for the sale of window treatments, including custom- made blinds. The Cleveland Plain Dealer published Habitat's weekly advertisements beginning sometime around March of 1994 and continuing through October of 1994. On July 10, 1994, Ms. Ferjutz went to Habitat's store to purchase custom-made blinds for her newly constructed home in Strongsville, Ohio. Ms. Ferjutz was interested in purchasing the "Honeycomb Duerette Shades" that were advertised that week in the Cleveland Plain Dealer. Ms. Ferjutz deposited $149 with Habitat. A portion of the deposit, $49.00, paid for Habitat's "Perfect Fit Agreement." The remaining $100 was fully refundable until the time of ordering that "locked in" any applicable price discount advertised for the week of July 10, 1994. By mid-July, a Habitat installer came to Ms. Ferjutz's home and measured her windows. On July 27, 1994, Ms. Ferjutz's window -3- measurements for her custom-made blinds were sent to the manufacturer. In August 1994, Ms. Ferjutz received a copy of Habitat's July 27, 1994 manufacturer's purchase order ("purchase order"). The purchase order reflected Ms. Ferjutz's order of forty-three custom- made blinds. The purchase order also listed Habitat's order number, type and number of blinds, shipment dates and expected delivery dates. By August 15, 1994, Habitat delivered and installed forty-one custom-made blinds. Five of the custom-made blinds could not be installed because the blinds did not conform to the window measurements. Specifically, the five non-conforming blinds were an eighth inch too wide. Habitat returned the five non-conforming blinds to the manufacturer, and they were repaired at Habitat's expense. Habitat placed temporary window shades over Ms. Ferjutz's windows while the non-conforming custom-made blinds were adjusted. Habitat also made minor adjustments to the brackets of two blinds. After the manufacturer repaired the blinds, Habitat contacted Ms. Ferjutz to notify her that a Habitat installer would come to her home to install the repaired blinds. However, Ms. Ferjutz informed Habitat's staff that the installer would not have access to her home. She also stated that she consulted with a privately retained attorney concerning the Habitat matter. By September 7, 1994, Ms. Ferjutz contacted Habitat and delivered an ultimatum; either Habitat was to deliver and install all of the blinds within ten days, before September 17, 1994, or -4- she would cancel the entire order and purchase the blinds from another source. By September 14, 1994, Ms. Ferjutz sent a letter to Habitat demanding that Habitat remove the non-conforming blinds from her home. On September 17, 1994, Ms. Ferjutz went to a J.C. Penney Store and purchased substitute blinds for her entire home. The blinds from J.C. Penney cost $352 more than the comparable Habitat blinds. On September 22, 1994, Ms. Ferjutz received a letter from Habitat's president, dated September 20, 1994, in which he offered Ms. Ferjutz an apology and a 5 percent "good will" discount applicable to discount on Habitat's purchase price. Ms. Ferjutz rejected both Habitat's 5 percent good will discount and the remaining blinds. On October 17, 1994, Ms. Ferjutz filed a complaint against Habitat. Ms. Ferjutz's complaint alleged that Habitat engaged in unfair and deceptive sales acts or practices in violation of the Ohio Consumer Sales Practice Act ("CSPA") and Ohio Administrative Code 109:4-3-09, et. seq. Ms. Ferjutz requested recession of her purchase order with Habitat and an award of $883.50, being the difference in cost between the J.C. Penney blinds and Habitat's blinds. In turn, Habitat filed an answer and counter claim alleging breach of contract. On June 29, 1995, a bench trial was held in Berea Municipal Court. The trial judge found that Ms. Ferjutz beached her contract with Habitat and awarded $4,380.58 in damages in favor of Habitat on its counterclaim against Ms. Ferjutz. -5- Ms. Ferjutz timely appeals and raises the following three assignments of error for this court to review: I. THE TRIAL COURT ERRED IN FAILING TO FIND HABITAT IN VIOLATION OF R.C. CHAP. 1345 BASED UPON (1) FERJUTZ'S AND HABITAT'S PRE-TRIAL STIPULATIONS OF FACT; (2) EXHIBITS ADMITTED INTO EVIDENCE; (3) UNCONTROVERTED TRIAL TESTIMONY; AND (4) THE LAW. II. THE TRIAL COURT ERRED IN FINDING IN FAVOR OF HABITAT ON ITS COUNTERCLAIM IN THE AMOUNT OF $4,380.58 AND AGAINST FERJUTZ ON HER CLAIM FOR BREACH OF CONTRACT WHERE: A. FERJUTZ DULY REJECTED HABITAT'S NON- CONFORMING TENDER OF BLINDS ON SEPTEMBER 15, 1994. B. IN THE ALTERNATIVE, FERJUTZ DULY REVOKED HER ACCEPTANCE OF HABITAT'S DELIVERY AND INSTALLATION OF BLINDS AFTER IT FAILED TO SEASONABLY CURE NON-CONFORMING TENDER ON AUGUST 15, 1994. III. THE AWARD OF $4,380.58 TO HABITAT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. II. Ms. Ferjutz contests, in her first assignment of error, the trial court's finding that Habitat did not violate R.C. Chapter 1345. Specifically, Ms. Ferjutz contends that: (1) Habitat violated R.C. 1345.02 by inducing her to purchase its blinds and then failed to perform; (2) Habitat engaged in deceptive sales practices by failing to install its custom-made blinds within a few days or seventy-two hours; (3) Habitat committed a per se deceptive act in violation of R.C. 1345.02 when it failed to deliver and install Ms. Ferjutz's blinds within eight weeks of accepting her -6- $100 deposit; and (4) Habitat engaged in inefficient, incomplete and dishonest conduct. Habitat counters that sufficient evidence was offered to demonstrate that it did not violate the CSPA. Habitat moreover claims that Ms. Ferjutz is, in this appeal, rearguing evidence submitted to the trial court. Therefore, Ms. Ferjutz's assignment of error is meritless. In analyzing this type of assignment of error, this court is guided by the standard of appellate review which mandates that a judgment of a trial court which is supported by competent and credible evidence shall not be reversed as being against the weight of evidence. Myers v. Garson (1993), 67 Ohio St.3d 610; C.E. Morris v. Foley Construction Co. (1978), 54 Ohio St.2d 279. The Ohio Supreme Court observed in Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, "[T]he underlying rationale of giving deference to the findings of the trial court rests with the knowledge that the trial judge is best able to review the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony." Id., at 80. The trial court is further presumed to have rightly determined issues. Ohio Fuel Gas Co. v. City of Mount Vernon (1930), 37 Ohio App.159. R.C. Chapter 1345 is a remedial statute enacted to protect consumers and prohibit suppliers from engaging in proscribed consumer sales practices. Eisenhorn v. Ford Motor Co. (1990), 48 Ohio St.3d 27. The Act provides swift, strong, and effective -7- consumer remedies and eliminates monetary incentives for suppliers who engage in such acts or practices through imposition of severe penalties, including awards of treble damages and reasonable attorney fees. Motzer Jeep Eagle, Inc. v. Ohio Attorney General (1994), 95 Ohio App.3d 183. R.C. 1345.02 governs unfair or deceptive consumer sales practices. R.C. 1345.03 pertains to unconscionable consumer sales practices conducted by a supplier. Pursuant to R.C. 1345.02, it is a deceptive act for a seller of goods to promise a performance date without taking steps to insure such promises are kept. In interpreting these statutes, Ohio Administrative Code 109:-4-3- 09(A)(1) provides: It shall be a deceptive act or practice in connection with a consumer transaction for a supplier to: (1) Advertise or promise prompt delivery unless, at the time of the advertisement, the supplier has taken reasonable action to insure prompt delivery. *** Ms. Ferjutz relies on two cases to support her contention that Habitat violated R.C. 1345.02 by inducing her to purchase its blinds by promising delivery and installation of its blinds by August 15, 1994, without taking reasonable steps to insure performance. Bielawski Falcone v. Herman (October 24, 1985), Cuyahoga App. Nos. 49615 and 49616, unreported (a supplier who stole one customer's goosedown and provided her with chicken feather pillows, and who provided another customer with nothing, violated the Consumer Sales Practices Act); Martinez v. Decora- tions Warehouse, Inc. (December 15, 1983), Cuyahoga App. No. 46873, -8- unreported (a seller violated the Consumer Sales Practices Act when it failed to disclose its refund policy, and when it did not tender delivery of a sofa set until more than five months of accepting a deposit despite its original promise of delivery within eight to ten weeks). Bielawski, supra and Martinez, supra, are readily distinguishable from the fact of this case. The trial court found that Habitat procured, shipped, delivered and installed forty-one blinds by August 15, 1994. By September 3, 1994, Habitat installed two more blinds and was repairing the five non-conforming blinds. The evidence demonstrated that Habitat did not make representations to Ms. Ferjutz concerning a specific delivery and installation date. Based on the foregoing, the trial court had sufficient evidence to find that Habitat did not violate the CSPA and that it took "reasonable" steps to insure the delivery and installation of Ms. Ferjutz's blinds by August 15, 1994. Meyers, supra. Ms. Ferjutz further asserts that Habitat's advertising campaign was deceptive and created an expectation in Ms. Ferjutz that Habitat could measure, manufacture, deliver, and install her custom-made blinds within a few days or seventy-two hours. Ms. Ferjutz argues that this type of advertising campaign which induces customer expectation is a deceptive sales practice. The trial court reviewed Habitat's advertisement listed by Ms. Ferjutz. The trial court determined that the Habitat advertisement did not represent that custom-made blinds could be measured, manufactured, delivered and installed within seventy-two -9- hours of any customer's entry into a Habitat store. In addition, Ms. Ferjutz's testimony indicated that she had no expectation that she would receive her blinds within seventy-two hours or a few days. Thus, the trial court had sufficient evidence to conclude that Habitat's advertisement was not a deceptive sales practice. Meyers, supra. Next, Ms. Ferjutz asserts that Habitat committed a per se violation of R.C. 1345.02, when it failed to complete delivery of Ms. Ferjutz's blinds within eight-weeks of accepting her $100 deposit. Martinez, supra; Bielawski, supra. Ms. Ferjutz entered the Habitat store on July 10, 1994, however, Ms. Ferjutz did not place her order on July 10, 1994. Mrs. Ferjutz's window measurements were not known until July 27, 1994. Habitat processed her window measurements on July 27, 1994. Therefore, the eight week time limit for delivery pursuant to A.O.C. 109:4-3-09 began on July 27, 1994. The evidence showed that forty-one of Ms. Ferjutz's forty-three blinds were installed by August 15, 1994. After the installer discovered that five blinds failed to conform to the window measurements, Habitat immediately returned them to the manufacturer for repairs at their own expense. By September 13, 1994, Habitat's only remaining performance was to complete the repair of the non-conforming blinds which were ready to be installed before September 23, 1994. After the blinds were repaired, Habitat attempted to install them. However, Ms. Ferjutz refused Habitat access to her home, and simultaneously imposed a unilateral ten-day deadline for Habitat's installment of the five -10- repaired blinds, and a week later, on September 24, demanded recession of the agreement and requested damages for all of her orders. There was sufficient evidence for the trial court to find that the evidence failed to substantiate Ms. Ferjutz's contention that Habitat violated the CSPA. Finally, Ms. Ferjutz asserts that Habitat engaged in inefficient, incompetent and dishonest conduct which violated R.C. 1345.02, because: (1) Habitat made and advertised promises that it could not keep; (2) the blinds were installed in a hurried fashion; and (3) Habitat failed to cure the defects. Ms. Ferjutz relies on two cases to support her argument: Pearson v. Tom Harrigan Oldsmobile Nissan (Sept. 16, 1994), Montgomery App. No. 12411, unreported (repeated and negligent repairs to an automobile, accompanied by stalling and evasion, was a violation of the Consumer Sales Practices Act); Brawn v. Lyons (1974), 43 Ohio Misc. 14 (used appliance salesman/repairman engaged in deceptive practices when he misrepresented the condition of appliance he sold, misrepresented the repairs needed, then failed to perform the repairs). Pearson, supra and Braum, supra, are distinguishable from the facts of the case at bar. The record before the trial court established that Habitat processed Ms. Ferjutz's purchase order. With the exception of the non-conforming blinds, Habitat installed the majority of the blinds by September 3, 1994 to Ms. Ferjutz's satisfaction. Despite Ms. Ferjutz's ultimatum, Habitat acted in a competent and professional manner. Therefore, the trial court had sufficient evidence to -11- conclude that Ms. Ferjutz's claim of ineffective, incompetent, or negligent repairs lacked merit. Given the foregoing, Ms. Ferjutz's argument is not well-taken. Accordingly, Ms. Ferjutz's first assignment of error is overruled. Ms. Ferjutz asserts in her second assignment of error that the trial court erred in finding that she breached her agreement with Habitat. Ms. Ferjutz submits that the trial court thus erred when it awarded Habitat $4,380.58 in damages. Ms. Ferjutz further asserts that she duly revoked her acceptance of Habitat's non- conforming blinds. R.C. Chapter 1302 applies to contracts for the sale of goods for $500 or more. George v. Fanin (1990), 67 Ohio App.3d 703. R.C. 1302.60, Ohio's "perfect tender rule" provides: Subject to the provisions of section 1302.70 of the Revised Code, and unless otherwise agreed under sections 1302.92 and 1302.93 of the Revised Code, if the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may: (A) accept the whole; or (B) reject the whole; or (C) accept any commercial unit or units and reject the rest. Alliance Wall Corp. v. Ampot Midwest Corp. (1984), 17 Ohio App.3d 59. According to R.C. 1302.93, "any agreement limiting remedies to the replacement of non-conforming grounds is acceptable under the law." R.C. 1302.52(B) provides that a seller has reasonable time to cure non-conforming tender. "[A] seller does not have an unlimited time to cure non-conformities and nor does the buyer have -12- to keep complaining forever. Kabco Equip. Specialists v. Budgetal, Inc. (1984), 2 Ohio App.3d 53, 61. R.C. 1302.66(A0(1) and (2) pertains to a buyer revoking acceptance. Ms. Ferjutz had a perfect fit agreement with Habitat for custom-made blinds. The fit agreement included a provision that any correction of fit would be made at Habitat's expense, within a reasonable time after the discovery of a defect(s). Herein, Ms. Ferjutz's window orders were processed in a timely fashion. Once Habitat discovered the fitting problems, it immediately proceeded to correct them. Under R.C. 1302.52(B), Habitat had reasonable time to cure the non- conforming blinds and expeditiously proceeded to cure the defects. Habitat provided Ms. Ferjutz with replacement blinds while her blinds were being repaired. Ms. Ferjutz's attempted revocation was ineffective in light of her unwillingness to give Habitat reason- able time to cure the non-conforming blinds. The trial court found that Habitat corrected the non-conforming blinds within a "reasonable" time period. See Albert V. Boatsmith Marine Service v. Storage, Inc. (1989), 65 Ohio App.3d 38 (reasonable time to cure a question of fact). Given the foregoing evidence, the trial court correctly determined that Habitat was entitled to $4,380.58 in damages because, Ms. Ferjutz breached her agreement with Habitat, and her revocation was ineffective. Meyers, supra; Ohio Fuel Gas Co., supra. Accordingly, Ms. Ferjutz's second assignment of error is overruled. -13- In her third assignment of error she contends that the trial court's finding Habitat is entitled to recover $4,380.58 in damages is against the manifest weight of the evidence. The evidence at trial demonstrated that Ms. Ferjutz had a sales agreement with Habitat in the amount of $4,778.39 for custom-made blinds which she breached. Despite Ms. Ferjutz's revocation, Habitat offered a 5 percent good will discount for any inconvenience she suffered. Thus, the trial court's award reflected $248.81, the 5 percent good will discount subtracted from the outstanding balance of $4,629.39. There was sufficient evidence to support the trial court's findings that Ms. Ferjutz owed $4,380.58 in damages to Habitat. C.E. Morris, supra. Accordingly, Ms. Ferjutz's assignment of error is overruled. Judgment affirmed. -14- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Berea Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO SPELLACY, CHIEF JUSTICE AND PATRICIA ANN BLACKMON, J. CONCUR JUDGE SARA J. HARPER N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which .