Barrett-O'Neill v. Lalo, LLC

• Decision Date: 21 March 2016
• Docket Number: Case No. 2:14–cv–00194
• Parties: Lynda Barrett–O'Neill, Plaintiff, v. Lalo, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

171 F.Supp.3d 725

Lynda Barrett–O'Neill, Plaintiff,

v.Lalo, LLC, et al., Defendants.

Case No. 2:14–cv–00194

United States District Court, S.D. Ohio, Eastern Division.

Signed March 21, 2016

Filed March 22, 2016

Troy John Doucet, Andrew J. Gerling, Bridget M. Wasson, Perry C. Thompson, Doucet & Associates Co., L.P.A., Dublin, OH, for Plaintiff.

D. John Travis, Gallagher, Sharp, Fulton & Norman, Cleveland, OH, for Defendants.

OPINION AND ORDER

Norah McCann King

, United States Magistrate Judge

This is a diversity action in which plaintiff Lynda Barrett–O'Neill (“plaintiff”) alleges that defendant LALO, LLC, doing business as Caring Transitions of North Central Ohio (“Caring Transitions” or “defendant”) violated the Ohio Consumer Sales Practices Act (“CSPA”), O.R.C. 1345.01 et seq .

, in connection with the disposition of plaintiff's personal property by the defendant. Plaintiff also asserts claims of breach of contract, fraudulent misrepresentation, negligence, conversion, breach of bailment, and trespass to chattels.¹ This matter is now before the Court, with the consent of the parties pursuant to 28 U.S.C. § 636(c), on the Defendant LALO, LLC's Motion for Summary Judgment , ECF No. 52 (“Defendant's Motion ”) and on the Motion of Defendant [sic] Lynda Barrett–O'Neill for Summary Judgment , ECF No. 53 (“Plaintiff's Motion ”). Plaintiff opposes Defendant's Motion and defendant has filed a reply. Plaintiff Lynda Barrett–O'Neill's Memorandum contra to Defendnat [sic] LALO, LLC's Motion for Summary Judgment, ECF No. 54 (“Plaintiff's Response ”); Defendant LALO, LLC's Reply in Support of Its Motion for Summary Judgment , ECF No. 58. Similarly, defendant opposes Plaintiff's Motion and plaintiff has filed a reply. Defendant LALO, LLC's Response to Plaintiff's Motion for Summary Judgment Response , ECF No. 55; Plaintiff Lynda Barrett–O'Neill's Reply to Defendant's Memo Contra to Plaintiff's Motion for Summary Judgment , ECF No. 57. For the following reasons, Defendant's Motion is GRANTED in part and DENIED in part, and Plaintiff's Motion is GRANTED in part and DENIED in part.

I. Background

Milton and Julie Law were the owners of Caring Transitions, a franchised business that assisted individuals in downsizing or liquidating estates and personal property. Deposition of Milton Law , ECF No. 52–3, PAGEID# 505–06, 507, 511 (“M. Law Deposition ”); Deposition of Julie Law , ECF No. 53–9, PAGEID# 994 (“J. Law Deposition ”). From 2010 to 2014, Caring Transitions provided various downsizing services, including organization, moving, relocation, property distribution, property liquidation, auction, and resettlement services. M. Law Deposition, PAGEID# 508, 523; J. Law Deposition , PAGEID# 994–95. Caring Transitions would move a client's personal property to a warehouse, unpack the personal property, price the individual items, display the items for sale in the warehouse, and conduct sales of the items. M. Law Deposition , PAGEID# 519. Items not sold were donated to charity or otherwise disposed of by Caring Transitions. Id. at PAGEID# 520.

Both Julie and Milton Law had prior professional experience buying and selling antiques. J. Law Deposition , PAGEID# 988–89; M. Law Deposition , PAGEID# 541. However, although Julie Law had taken some relevant online and in–person classes, neither Milton nor Julie Law possessed a formal certificate or degree specializing in the appraisal of antique items. J. Law Deposition , PAGEID# 988–93; M. Law Deposition , PAGEID# 519.

Milton Law testified that, when items arrived at the warehouse, each item was ticketed with the client's code. M. Law Deposition , PAGEID# 518. It was he who priced each item, relying on his own knowledge and subjective opinion. Id. at PAGEID# 519. On occasion, he would solicit the opinion of acquaintances with experience with particular items or conduct an internet search. Id . at PAGEID# 553–54. The items were then displayed for sale. Id. at PAGEID# 519. Upon the sale of an item, he would note, without specifying either the item or the purchaser, the identity of the client and the price for which the item was sold. Id. at PAGEID# 520. The sales amounts were include in the client's settlement sheet, which also reflected third party costs. Id. at PAGEID# 521.

In January 2013, plaintiff met with Julie and Milton Law for the first time to discuss the downsizing and sale of her personal property. M. Law Deposition , PAGEID# 543; Affidavit of Lynda Barrett– O'Neill , ECF No. 53–3, PAGEID# 938. According to plaintiff, Julie Law represented that she was an expert in antiques and plaintiff relied in part on that representation when she decided to engage Caring Transitions' services. June 3, 2015 Deposition of Lynda Barrett–O'Neill , ECF No. 52–5, PAGEID# 660 (“Barrett–O'Neill Deposition 2 ”); Affidavit of Lynda Barrett–O'Neill , PAGEID# 939.

On January 22, 2013, Barrett–O'Neill signed a Personal Property Liquidation Agreement (“Agreement ”) that addressed the services to be rendered by Caring Transitions. Agreement , ECF No. 53–4.² Although it is primarily a form document, the Agreement also reflects a number of handwritten modifications that are initialed by both Milton Law and plaintiff. Id. at PAGEID# 943–47; M. Law Deposition , PAGEID# 548–51.

Paragraph 2 of the Agreement vested Caring Transitions with sole authority over the valuation of the items:

2. Services. Caring Transitions shall attempt to sell all of the Household Goods (the “Sale”) for prices to be determined by Caring Transitions. The Sale may be by public or private estate, household, or tag sale, public or private auction, consignment store, eBay or other Internet consignment, live Internet auction, or other method or combination of methods. If the Household Goods are sold by estate, household, or tag sale or auction at the premises, Caring Transitions shall promote, organize, and conduct the Sale. Unless otherwise expressly provided in this contract, Caring Transitions has complete discretion over all questions of valuation, pricing, price reductions, and discounts, methods and duration of the Sale, and merchantability of the Household Goods....

Agreement , PAGEID# 944. Moreover, Paragraph 8 of the Agreement made clear that Caring Transitions offered no warranty or guarantee “of the value of any of the Household Goods, of the amount of Gross or Net Proceeds that will be realized from the sale of the Household Goods, or the price for which any individual item of the Household Goods will be sold.” Id. at PAGEID 945.

Paragraph 5 of the Agreement listed possible additional services that could be provided upon the client's request, including “[c]lean[ing] and prepar[ing] the Household Goods for sale.” Id. That service appears to have been rejected by plaintiff, who appears to have written “me” in connection with this service. Id.

Under the Agreement, “None of the Household Goods may be taken from the Premises without Caring Transitions' prior written consent.” Id. However, a hand–written term granted plaintiff the right to “inspect and/or remove any unsold or un–merchantable household goods prior to donation of same to recognized charity. No commission shall be due or payable upon the subsequent sale of those goods” Id.

The Agreement also contemplated a 35% commission to be paid to Caring Transitions out of the total proceeds of the sale, with a minimum commission of $1,500. Id. The commission was to be paid out of the “Gross Proceeds” of the sale, which is further defined in the Agreement as

the total gross purchase price...of all Household Goods sold after the date of this contract, plus the sale price, as determined by Caring Transitions, of all Household Goods claimed by, removed by, delivered to, or distributed to any person...without payment of the full sale price...or otherwise removed from the Sale by the authorization of Client.

Id. (emphasis in original).

The Agreement also required Caring Transitions to provide cleaning and disposal services. Id. Further, the Agreement provided that the client is “responsible for all expenses related to estate sale and/or hourly services,” including costs of “marketing, advertising, employees, supplies, signage,... cleaning, and other expenses paid to third–parties in connection with services rendered.” Id. at PAGEID# 945. However, the services provided by Caring Transitions pursuant to the Agreement were provided “ ‘as is' and without any warranty or representation as to the services, express, implied or statutory....” Id. at PAGEID# 946.

Caring Transitions was responsible for remitting payment to plaintiff within 14 days of the completion of the sale of goods. Id. at PAGEID# 945.

The Agreement also contained a warranty disclaimer and a liability limitation clause that limited Caring Transitions' liability to the greater of the amount paid to Caring Transitions or $100, as well as an incorporation clause.

14. Waiver of Certain Damages. IN NO EVENT WILL CARING TRANSITIONS BE LIABLE TO YOU FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR ITS TERMINATION, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER CARING TRANSITIONS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.

15. Limitation of Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT TO THE CONTRARY, IF CARING TRANSITIONS IS HELD LIABLE TO YOU FOR ANY LOSS, DAMAGE, INJURY OR DEATH, ITS LIABILITY WILL BE LIMITED TO THE AMOUNT THAT YOU HAVE PAID TO CARING TRANSITIONS FOR SERVICES OF $100, WHICHEVER IS GREATER. YOUR RECEIPT OF THAT AMOUNT WILL BE YOUR EXCLUSIVE REMEDY AGAINST CARING TRANSITIONS, REGARDLESS OF LEGAL THEORY USED TO DETERMINE THAT CARING TRANSITIONS WAS LIABLE. CARING TRANSITION WLL NOT BE LIABLE TO ANY THIRD PERSON BECAUSE OF THIS AGREEMENT.

16. Miscellaneous Terms . This contract constitutes the entire agreement between the parties relating to its subject matter. All prior agreements and understandings relating to the same subject

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