$88 NORTH ERIE STREET ~OLEDO, OHIO 4360 PHONE (419) 935-3650 4419)936-7012 VALLIE BOWMAN- CLERK oF Count TOLEDO MUNICIPAL COURT SLISH. welt. com Fit ToLeno + * cvuar TIER 1 ATE Su ey cvr-18-00986 mon Came Bessor” RUMEN ‘Small Claims Division SEL Mark Hanusz. ‘ase No. CVI - 18 - 00886 Pliniff, : MAGISTRATES DECISION. Hearing Date: March 6, 2018 Apple. Ine. Defendant Amount of Claim: $3,117.75 APPEARANCES: Plaintiff: Mark Hanusz. pro Defendant: Apple inc. Defendant Franklin Park Mall sore manager Kathleen Rouse to represent its interests. Ms, Rouse is not an attomey and accordingly was not permitted to represent Defendant; however, Ms. Rouse was permitted to give a statement. Findings of fact and conclusions of law are rende-ed based upon the testimony, an evaluation of credibility, and an evaluation of exhibits admit 'd into evidence. EINDINGS OF FACT ‘On October 4, 2016, Plaintiff purchased an iPhone 7 from Defendant's store at the Franklin Park Mall, Plaintiff stated that he told the sales person that he specifically wanted an “unlocked” phone which was not linked to a particular serview carrier, because he traveled abroad extensively and wanted the option cf using different local carri inthe various countries. Plaintift testificd that he had to pay a higher price for an “unlocked” ph yne because it was not subsidized by particular carier.SS NORTH ERIE STREET VALLIE BOWMAN - ENGLISH ZOLEDO, Ot0 1565 (QBii, cenicor court PHONE «41999503650 \§ TOLEDO MUNICIPAL COURT Fax ve tne com 2 Thereceipt forthe pone states"No wireless sevice activation during iPhone Sale.” See, Exhibit 3. Sometime in January 2018, Plant tried to exc ange the SIM card in his iPhone for card foradifferentcarier; however, the Phone didnot work with the diferent SIM car, Plaintiff ‘was told his iPhone would not work withthe diffrent card bscause it was “locked” toa specific Plaintiff returned to the Apple store in Franklin Park Mall on January 13, 2018 and tried to exchange his “locked” iPhone for an “unlocked iPh me. Apple refused to exchange the ‘hone because it was past Apple's standard 14 day exchange oeriod. Inher statement, Ms. Rouse confirmed that Apple company policy was to allow exchanges only within 14 days ofthe date of purchase 5. Plaintiff then contacted Apple by email but received nothing allowing him to return ‘or exchange the iPhone. See, email return Exhibit 1 6, Plaintiff filed the instant Small Claims complaint asking for $3,117.75. the cost of the iPhone $1,091.80 and treble damages under the Consumer Sales Practices Act. R.C.1345.09(B), CONCLUSIONS OF LAV. 17. RC. 1345,09(A) provides that a consumer may file a private right of action for any ‘act prohibited by R.C. 1345,02, “Unfair or deceptive acts or practices”, and thatthe consumer may rescind the transaction or recover hs actusl economic damages plus an amount not exceeding five thousend dollars in noneconomic dimages 18. RC.1345.09(B) provides that when the violation was an actor practice declared 10 bbe deceptive or unconscionable as defined in R.C.1345.051B), the consumer may rescind the transaction of recover, but not in a class action, three times tie amount of the consumer's actualVALLIE BOWMAN - ENC CLERK OF COURT TOLEDO MUNICIPAL COURT tee om S88 NORTH ERIE STREET ASH TOLEDO, OHIO 4360. PHONE (419) 950-3650 FAX (419) 930-7012 ‘economic damages or two hundred dollars, whichever is greater. 19. _ Itis undisputed that Plaintiff specified he wished to purchase an “unlocked” iPhone; that the iPhone sold fo Plaintiff was “locked”; and that Plaintiff was nevertheless charged for an “urlocked” iPhone. 20. It is also undisputed that Plaintiff was not aware of Defendant's merchandise coding system which identified “locked” and"unlocked” phones; and that Defendant knew or should have ‘known that the iPhone Sold to Plaintiff was “lock 21. RC, 1345.02 detinition ofa “deceptive act or practice” ifthe actor represents that the subject ofthe transaction has “performance characteristis, accessories, uses or benefits that it does not have". In this case, Defendant represented that the iPhone sold to Plaintiff was unlocked”, which is a performance characteristic, use or bene it which that particular iPhone did not have. Accordingly, Defendant's sale of the “locked” iPhone to Plaintiff for the price of an “unlocked” iPhone constitutes dee:ptive act. MAGISTRATE’S DECISION 22, Plaiffsentite to recover $3,117.75, three times the cost ofthe “locked” ‘Ptone RECOMMENDED: Judgment for PlaintifFin the amount of $3,117.75 plus costs. Due: oviza018 ™WelE BM oe “Magistrate Catherine G:. Hoolahan