Summary
In Osai v. A D Furniture, 68 Ohio St.2d 99, 428 N.E.2d 857 (1981), it held that the treble damages provision of the Consumer Sales Practices Act could not be applied retroactively in an action which was commenced prior to its enactment.
Summary of this case from Central States Stamping Co. v. Lake Cty. Nat. BankOpinion
No. 80-1632
Decided December 9, 1981.
Consumer Sales Practices Act — Violation — Treble-damage award — R.C. 1345.09(B) — May not be applied retrospectively.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellees, Jason and Chilo Osai, purchased a refrigerator from A D Furniture Company of Cleveland (hereinafter A D) in October 1977. It was warranted for one year by appellant, Gibson Appliance Corporation (hereinafter Gibson), the manufacturer. The purchase price, including tax, was $316.50. The refrigerator malfunctioned shortly after it was installed, causing food to spoil.
Appellees complained to A D and to the local Gibson distributor, Midland Electric Company (hereinafter Midland). Gibson's Cleveland service representative, Federal Appliance Company, attempted to repair the refrigerator several times, but it never operated properly, despite the service calls. A D and Midland refused to replace the refrigerator or provide a refund after the unit completely ceased to operate on December 24, 1977. Gibson was informed of appellees' difficulties with the refrigerator by receiving a copy of a letter sent to Midland, dated November 21, 1977. Whereupon, Gibson contacted Midland and Federal Appliance Company, and sent a reply letter to appellees.
Appellees filed a complaint in the Cleveland Municipal Court against A D and Midland on March 1, 1978, alleging breach of contract and violation of the Ohio Consumer Sales Practices Act, R.C. Chapter 1345. Appellees sought, inter alia, $300 in direct damages, $800 in consequential damages, $5,100 in punitive damages for the alleged R.C. Chapter 1345 violation and $2,000 for attorney fees. The complaint was amended on October 12, 1978, to include Gibson as a party defendant.
A jury trial was held in April 1979. The jury returned a verdict for appellees against Gibson, finding $316.50 in actual damages and $2,550 in punitive damages. A D was found not liable and Midland was found liable for $450 compensatory and $2,550 punitive damages. The court entered judgment on the verdict.
Gibson and Midland appealed to the Court of Appeals which, in a split decision, modified the punitive damages awarded by the trial court. The Court of Appeals' majority sua sponte applied the treble-damages provision of R.C. 1345.09(B) and reduced the damages against Gibson to $949.50 (3 x $316.50) and against Midland $1,350 (3 x $450). Gibson alone has appealed to this court.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Carl J. Character Co., L.P.A., and Mr. Donald C. Williams, for appellees.
Messrs. Squire, Sanders Dempsey and Mr. James M. Porter, for appellant.
Appellant's first proposition of law challenges the Court of Appeals' assessment of treble damages within amended R.C. 1345.09, because the treble-damages provision of the statute was not in effect when the alleged violation occurred. The effective date of amended R.C. 1345.09(B), which includes the treble-damages clause, was April 11, 1978.
The events involving the basis for appellees' complaint occurred in late 1977 and the initial complaint was filed in March, 1978, prior to the enactment of amended R.C. 1345.09(B). Consequently, the Court of Appeals erred in imposing treble damages pursuant to amended R.C. 1345.09(B) because the statutory penalty could not be retroactively applied in this cause.
The enactment of retroactive laws by a General Assembly is prohibited by Section 28, Article II of the Ohio Constitution. See Perk v. Euclid (1969), 17 Ohio St.2d 4. Moreover, the treble-damages provision affects a substantive right. Therefore, its application to the facts of this case would violate due process. Furthermore, application of the treble-damages provision would disregard the basic statutory requirements that a statute be given only prospective application unless the General Assembly expressly directs to the contrary (R.C. 1.48), and that an amendment does not affect any liability or penalty already incurred or remedy to be enforced thereunder (R.C. 1.58).
Appellant's second and third propositions of law involve issues concerning the proper construction of the treble-damages provision of R.C. 1345.09(B) as amended. At any rate, it is not necessary to delineate these issues, as the improper retroactive application of amended R.C. 1345.09(B) is determinative of this appeal.
Finally, appellees did not file a cross-appeal to reinstate the trial court's punitive-damages award. In F. Enterprises v. Kentucky Fried Chicken Corp. (1976), 47 Ohio St.2d 154, the fifth paragraph of the syllabus reads: "The Supreme Court is without authority to grant affirmative relief to an appellee by modification of the judgment of the Court of Appeals where no cross-appeal has been taken by appellee by the filing of a notice of appeal in the Court of Appeals."
For the foregoing reasons, the judgment of the Court of Appeals is reversed.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and REILLY, JJ., concur.
REILLY, J., of the Tenth Appellate District, sitting for KRUPANSKY, J.