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John W. Ferron v. Dish Network

October 11, 2011

JOHN W. FERRON, PLAINTIFF-APPELLANT,
v.
DISH NETWORK, LLC,
DEFENDANT-APPELLEE.



APPEAL from the Franklin County Municipal Court. (M.C. No. 2009 CVH 27179)

The opinion of the court was delivered by: French, J.

Cite as Ferron v. Dish Network, L.L.C.,

(REGULAR CALENDAR)

DECISION

{¶1} Plaintiff-appellant, John W. Ferron ("Ferron"), appeals the judgment of the Franklin County Municipal Court, which dismissed his complaint against defendantappellee, Dish Network, LLC ("Dish Network"). For the following reasons, we reverse in part and affirm in part the trial court's judgment.

{¶2} Ferron's complaint alleged that Dish Network's television advertisements for satellite television products and services violated the Ohio Consumer Sales Practices Act, R.C. 1345.01 et seq. ("CSPA"). Ferron also alleged that Dish Network violated the Ohio Telephone Solicitation Sales Act, R.C. 4719.01 et seq. ("TSSA"), by failing to adhere to state requirements for telephone solicitors. Certain violations of the TSSA are, by definition, violations of the CSPA. R.C. 4719.04. We begin, then, with the CSPA.

I. The Consumer Sales Practices Act

{¶3} R.C. 1345.02(A) provides: "No supplier shall commit an unfair or deceptive act or practice in connection with a consumer transaction." R.C. 1345.02(B) specifically defines certain acts or practices as "deceptive," but expressly states that these definitions do not limit the scope of R.C. 1345.02(A). R.C. 1345.03 prohibits unconscionable acts or practices.

{¶4} R.C. 1345.05 grants to the attorney general certain powers and duties, including the power to adopt procedural rules. The attorney general also may conduct investigations and bring actions for declaratory judgment or injunction to enforce the CSPA.

{¶5} R.C. 1345.09 grants to a consumer a cause of action and the right to seek relief under the CSPA "[f]or a violation of" R.C. Chapter 1345.*fn1 For our purposes, three rights of relief under this provision are important here. First, where the alleged violation was an act prohibited by R.C. 1345.02, 1345.03 or 1345.031, "the consumer may, in an individual action, rescind the transaction or recover the consumer's actual economic damages," plus non-economic damages up to $5,000. R.C. 1345.09(A). Second, where the alleged violation was an act or practice declared to be deceptive or unconscionable by a rule adopted by the attorney general or an act or practice committed after a court has found that it violated R.C. 1345.02, 1345.03 or 1345.031, "the consumer may rescind the transaction or recover, but not in a class action, three times the amount of [his] actual economic damages or [$200], whichever is greater," and may recover non-economic damages. R.C. 1345.09(B). Third, a "consumer may seek a declaratory judgment, an injunction, or other appropriate relief against an act or practice that violates" the CSPA. R.C. 1345.09(D).

II. Case Background

{¶6} Ferron's complaint alleged that Dish Network had engaged in deceptive practices by misusing the term "free" in its television ads and failing to identify all of the terms and conditions of the advertised sale. He identified two causes of action. In his first cause of action, Ferron alleged that Dish Network "committed multiple violations" of R.C. 1345.02(A) and did so knowingly. He stated that he is entitled to an award of statutory damages and attorney fees. In his second cause of action, Ferron stated that he is entitled to a declaration that certain acts are deceptive and violate the CSPA.

{¶7} After Dish Network filed a motion to dismiss Ferron's complaint, in part because he failed to state his claims with specificity, Ferron filed his First Amended Complaint. In his first cause of action, Ferron again alleged that Dish Network knowingly committed multiple violations of R.C. 1345.02(A). He added, however, that none of Dish Network's violations caused him to suffer "any actual injuries or incur any actual damages." In his second cause of action, Ferron again stated that he is entitled to a declaration that certain acts are deceptive and violate the CSPA. In his claim for relief, Ferron sought an award of damages in the amount of $200 for each violation.

{¶8} On August 19, 2009, Dish Network moved to dismiss Ferron's amended complaint. The motion raised the following two grounds: (1) the television ads at issue did not rise to the level of a "solicitation" and did not constitute a "consumer transaction" under the CSPA; and (2) Ferron had knowledge of all the terms and conditions of the advertised transaction, he was not deceived by the ads, and no right to recover arose from them. The court denied Dish Network's motion as to the first ground, concluding that the ads were subject to the CSPA. As detailed here, however, the court granted Dish Network's motion as to the second ground concerning deception. The court also dismissed Ferron's claims under the TSSA.

{¶9} In support of its argument that Ferron was not deceived, Dish Network cited Ferron v. EchoStar Satellite, LLC (S.D.Ohio 2009), 727 F.Supp.2d 647, aff'd (C.A.6 2010), 410 Fed.Appx. 903 ("EchoStar Satellite"), in which the federal district court granted the defendants' motion for summary judgment against Ferron, and the Sixth Circuit Court of Appeal affirmed. The defendants in that case included EchoStar Satellite. In a footnote within its motion to the trial court here, Dish Network stated that the defendant in this action, Dish Network, LLC, was known formerly as EchoStar Satellite, LLC; therefore, "the plaintiff and the principal defendant were the same in [EchoStar Satellite] as they are in this case."

{¶10} At issue in EchoStar Satellite were email advertisements for products and services of Dish Network. Ferron received the email advertisements after providing his email address on various satellite dish websites. He alleged that the email ads were deceptive in their price quotes, offers of free equipment, and terms of subscription.

{¶11} Of key importance to that case was Ferron's prior knowledge of the terms and conditions for obtaining Dish Network products and services. He had this prior knowledge because, before receiving the email ads, he had made several telephone calls to call centers associated with Dish Network. The record before the district court was "replete with uncontroverted evidence that Ferron could not have been deceived by the subject email advertisements." (District Court Opinion at 16.) Based on this evidence, the defendants moved for summary judgment, contending that, without proof of deception, Ferron could not recover under the CSPA.

{¶12} As noted, the district court granted summary judgment in favor of the defendants. Construing the CSPA, the applicable regulations, and Ohio case law, the court concluded the following: "Given that in Ohio deception is measured from the standpoint of the consumer asserting the OCSPA claim, it logically follows that where the record shows affirmatively that the consumer could not have been deceived, no OCSPA violation has occurred." (District Court Opinion at 16.) The Sixth Circuit Court of Appeals affirmed that judgment in December 2010.

{ΒΆ13} In the case before us, the trial court relied on the district court's decision in EchoStar Satellite and Ohio appellate court decisions to grant Dish Network's motion to dismiss. Concluding that "[d]eception is the sine qua non of the OCSPA," the trial court dismissed Ferron's complaint because he had not alleged that he was deceived. (Trial Court Opinion at 5.) The court also concluded that Ferron did not allege ...


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