Would this court case set a precedance for comics as well?

[uclapeterg]

Court: Buyer due $17K refund for worthless Mantle card

Jan. 7, 2005

SportsLine.com wire reports

 

LINCOLN, Neb. -- A man who paid more than $17,000 for what turned out to be an altered Mickey Mantle baseball card deserves a refund, even though he didn't learn the card's true value for two years, the state Supreme Court ruled Friday.

 

The court said James Fitl rightly relied on the dealer's authority and could only have discovered the alterations by conducting an investigation, something the court said Fitl was not required to do. (my bolding)

 

The Omaha man bought the purportedly "mint condition" 1952 Topps card from Mark Strek after meeting him at a San Francisco card show in 1995. Fitl put the card in a safe deposit box, waiting until 1997 to send it to a grading service, which declared it worthless because it had been discolored and doctored.

 

Strek refused a refund because Fitl didn't ask within a month of purchase.

 

Siding with a lower court, the Supreme Court found that Fitl had complied with a state law requiring him to report any product defects "within a reasonable time."

 

"What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action," Judge John Wright wrote.

 

The ruling did not address whether Strek himself made the alterations, which included repainted areas and trimmed and glued edges, only that he should vouch for his wares or return the money.

 

AP NEWS

The Associated Press News Service

 

Copyright 2004-2005, The Associated Press, All Rights Reserved

[Foolkiller]

It would seem to be so. Of course, this is in Nebraska, at the trial court level, so the precedential value is somewhat limited. Others trial judges in other states might view it very differently. Regardless, it's a good ruling.

[awe4one]

It would seem to be so. Of course, this is in Nebraska, at the trial court level, so the precedential value is somewhat limited. Others trial judges in other states might view it very differently. Regardless, it's a good ruling.

 

Does a court ruling in Nebraska have less legal weight than other States? And if so why?

 

Jim

[uclapeterg]

It would seem to be so. Of course, this is in Nebraska, at the trial court level, so the precedential value is somewhat limited. Others trial judges in other states might view it very differently. Regardless, it's a good ruling.

 

If there is a new case in one state, wouldn't they look to see if other states have dealt with the same issue before?

[FFB]

It would seem to be so. Of course, this is in Nebraska, at the trial court level, so the precedential value is somewhat limited. Others trial judges in other states might view it very differently. Regardless, it's a good ruling.

 

That opinion is from the Nebraska Supreme Court, the highest appellate court in the state, not a trial court. It will have persuasive value but will not be binding on other jurisdictions. It is binding authority in Nebraska.

 

To answer Peter's question, I can't see any reason why a Nebraska case involving comics wouldn't be decided on the same lines as this case was. But there will always be a factual inquiry into whether the buyer exercised appropriate diligence, and each state's laws concerning whether the buyer needs to conduct an investigation may vary.

[Foolkiller]

ahhh... didn't read carefully enough.

 

Nonetheless, it doesn't change the fact that it's not really binding in any other state. Yes, other states might look to see how others have handled it, but the facts and analysis will obviously vary from state to state.

[uclapeterg]

Thanks for answering my question!

 

I was going to ask where is FFB but somehow knew that you would be here soon

[FFB]

It would seem to be so. Of course, this is in Nebraska, at the trial court level, so the precedential value is somewhat limited. Others trial judges in other states might view it very differently. Regardless, it's a good ruling.

 

Does a court ruling in Nebraska have less legal weight than other States? And if so why?

 

Jim

 

Nebraska appellate opinions are not usually binding on the courts of other states and are only sometimes binding on federal courts. As Peter said, however, if another state such as California hasn't dealt with an issue before, it might look to other states to see how other courts have handled it. These other states' opinions are not "binding" on the California courts (or any of the other courts of the other states), but are said to have "persuasive value." Which means that a California court may or may not rely on it as authority for its own decision. If the principles upon which the earlier case was decided conflict with the laws of California (or any other state whose court is looking at the Nebraska opinion), the California court will not rely on the Nebraska opinion.

 

One exception where the Nebraska opinion would have extra weight and could be binding is if the other state or federal court is deciding an issue under Nebraska law (for example, in a breach of contract case where the contract states that the parties can sue in any court, but that the court has to interpret the contract under Nebraska law). In that case, the other court will follow the Nebraska Supreme Court's opinion.

[awe4one]

[Foolkiller]

Specifically Jim, it's not that a Nebraska ruling "has less weight" it's whether it has weight outside the state of Nebraska that is binding on another jurisdiction. FFB laid out a number of scenarios where another state might accept the interpretation of the Nebraska Supreme Court, and situations where a federal court might apply Nebraska law, or a different state may have to apply Nebraska law.

 

In terms of impact, just to give an example, whenever a party like say a large corporation like Pfizer, gets a favorable ruling in one jurisdiction, they will cite it in every future case with similar litigation. So generally any ruling on the same issue where there has not been one before is viewed as positive.

[CKB]

Can I assume, in this case, the seller agreed that the card in question was the same card that was sold to this buyer two years prior?

 

Otherwise, I can see no way this case would have ever progressed beyond that. And a saavy (read: unscrupulous) dealer would never agree to such a proposition. At least, not any more.

[Jeffreykli]

Interesting that Nebraska law would apply to this case; presumably the buyer was in Nebraska, but we'd need more information to see if the sale occurred in Nebraska, or if the dealer was also located in Nebraska.

 

Regarding it being the same card, the buyer would have records of putting the card in the safe deposit box, so perhaps the chain of evidence was strong enough so that it was proved to be the same card. I'd think that this fact would be proven at the trial.

[october]

I come to this board to escape the drudgery of my law studies and I find this!! Talk about precedent and persuasive value makes my stomach churn.

 

"Just when I thought I was out, they pull me back in!"

[divad]

Nebraska is a state? I thought it was a football team . . .

[Mephisto]

It would suck if the dealer didn't even do the work and didn't know about it.

[FFB]

Interesting that Nebraska law would apply to this case; presumably the buyer was in Nebraska, but we'd need more information to see if the sale occurred in Nebraska, or if the dealer was also located in Nebraska.

 

Regarding it being the same card, the buyer would have records of putting the card in the safe deposit box, so perhaps the chain of evidence was strong enough so that it was proved to be the same card. I'd think that this fact would be proven at the trial.

 

269 Neb. 51, 2005 WL 27558 (Neb.)

 

James G. Fitl, appellee

v.

Mark Strek, doing business as Star Cards of San Francisco, appellant.

No. S-03-836.

Supreme Court of Nebraska.

Filed January 7, 2005.

 

1. Judgments: Appeal and Error. In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless clearly erroneous.

2. Sales: Uniform Commercial Code: Notice: Time. The notice requirement set forth in Neb. U.C.C. § 2-607(3)(a) (Reissue 2001) serves three purposes. It provides the seller with an opportunity to correct any defect, to prepare for negotiation and litigation, and to protect itself against stale claims asserted after it is too late for the seller to investigate them.

3. Fraud. A party is justified in relying upon a representation made to the party as a positive statement of fact when an investigation would be required to ascertain its falsity.

Appeal from the District Court for Douglas County: Richard J. Spethman,

(Publication page references are not available for this document.)

Judge. Affirmed.

Joel M. Carney and James J. Bemis, Jr., of Walentine, O'Toole, McQuillan & Gordon, for appellant.

Patrick M. Heng, of Raynor, Rensch & Pfeiffer, for appellee.

 

Hendry, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.

 

 

NATURE OF CASE

 

Wright, J.

James G. Fitl purchased a baseball card from Mark Strek, doing business as Star Cards of San Francisco. When Fitl discovered that the baseball card had been altered and was of no value, he sued Strek for what he argued was the current fair market value of an unaltered version of the same card. Following a bench trial, judgment was entered against Strek in the amount of $17,750 plus costs. Strek appeals.

 

SCOPE OF REVIEW

[1] In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless clearly erroneous. Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33

 

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(2004).

 

FACTS

In September 1995, Fitl attended a sports card show in San Francisco, California, where Strek was an exhibitor. Fitl subsequently purchased from Strek a 1952 Mickey Mantle Topps baseball card for $17,750. According to Fitl, Strek represented that the card was in near mint condition. After Strek delivered the card to Fitl in Omaha, Nebraska, Fitl placed it in a safe-deposit box.

In May 1997, Fitl sent the baseball card to Professional Sports Authenticators (PSA), a grading service for sports cards that is located in Newport Beach, California. PSA reported to Fitl that the baseball card was ungradable because it had been discolored and doctored.

On May 29, 1997, Fitl wrote to Strek and indicated that he planned to pursue "legal methods" to resolve the matter. Strek replied that Fitl should have initiated a return of the baseball card in a timely fashion so that Strek could have confronted his source and remedied the situation. Strek asserted that a typical grace period for the unconditional return of a card was from 7 days to 1 month.

In August 1997, Fitl sent the baseball card to ASA Accugrade, Inc. (ASA), in Longwood, Florida, for a second opinion. ASA also concluded that the baseball card had been refinished and trimmed.

 

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On September 8, 1997, Fitl sued Strek, alleging that Strek knew the baseball card had been recolored or otherwise altered and had concealed this fact from him. Fitl claimed he had reasonably relied upon Strek's status as a reputable sports card dealer. Strek's answer generally denied Fitl's allegations.

In a trial to the court, Fitl appeared with counsel and offered evidence. Strek was represented by counsel but did not appear or offer any evidence. Fitl testified that he was in San Francisco over the Labor Day weekend of 1995, where he met Strek at a sports card show. Fitl subsequently purchased from Strek a 1952 Mickey Mantle Topps baseball card and placed it in a safe-deposit box. In 1997, Fitl retrieved the baseball card and sent it to PSA, a sports card grading service.

 

Steve Orand testified that he had been a sports card collector for 27 years and that he bought, sold, and traded cards. He testified that PSA originated in 1996 or 1997 and was a leader in the sports card grading industry. He stated that PSA would not grade an altered card because alteration would totally devalue the card. He opined that any touchup or trimming of a card would render the card valueless and that an altered card is worth no more than the paper on which it is printed.

Orand examined the baseball card in question the week before trial and said that the edges of the card had been trimmed and reglued. One spot on the front of the baseball card and a larger spot on the back had been repainted, which

(Publication page references are not available for this document.)

left the card with no value. He testified that the standard for sports memorabilia was a lifetime guarantee and that a reputable collector would stand behind what he sold and refund the money if an item were fake or had been altered.

The district court entered judgment for Fitl in the amount of $17,750 and costs. The court found that Fitl had notified Strek as soon as he realized the baseball card was altered and worthless and that Fitl had notified Strek of the defect within a reasonable time after its discovery. The court rejected Strek's theory that Fitl should have determined the authenticity of the baseball card immediately after it had been purchased.

 

ASSIGNMENT OF ERROR

Strek claims that the district court erred in determining that notification of the defective condition of the baseball card 2 years after the date of purchase was timely pursuant to Neb. U.C.C. § 2-607(3)(a) (Reissue 2001).

 

ANALYSIS

In a bench trial of a law action, a trial court's factual findings have the effect of a jury verdict and will not be set aside on appeal unless clearly erroneous. Webb v. American Employers Group, 268 Neb. 473, 684 N.W.2d 33 (2004). The district court found that Fitl had notified Strek within a reasonable time after discovery of the breach. Therefore, our review is whether the district court's finding as to the reasonableness of the notice was

(Publication page references are not available for this document.)

clearly erroneous.

Section 2-607(3)(a) states: "Where a tender has been accepted ... the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy [.]" "What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action." Neb. U.C.C. § 1-204(2) (Reissue 2001).

[2] The notice requirement set forth in § 2-607(3)(a) serves three purposes. It provides the seller with an opportunity to correct any defect, to prepare for negotiation and litigation, and to protect itself against stale claims asserted after it is too late for the seller to investigate them. See Cheyenne Mountain Bank v. Whetstone Corp., 787 P.2d 210 (Colo.App.1990). "Whether the notice given is satisfactory and whether it is given within a reasonable time are generally questions of fact to be measured by all the circumstances of the case." Id. at 213.

In Maybank v. Kresge Co., 302 N.C. 129, 273 S.E.2d 681 (1981), the court reviewed the policies behind the notice requirement. The most important one is to enable the seller "to make efforts to cure the breach by making adjustments or replacements in order to minimize the buyer's damages and the seller's liability." Id. at 134, 273 S.E.2d at 684. A second policy is to provide the seller "a reasonable opportunity to learn the facts so that he may

 

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adequately prepare for negotiation and defend himself in a suit." Id. A third policy, designated the "least compelling" by the court, is the same as the policy behind statutes of limitation: "to provide a seller with a terminal point in time for liability." Id. at 135, 273 S.E.2d at 684.

[3] Fitl purchased the baseball card in 1995 and immediately placed it in a safe-deposit box. Two years later, he retrieved the baseball card, had it appraised, and learned that it was of no value. Fitl testified that he had relied on Strek's position as a dealer of sports cards and on his representations that the baseball card was authentic. In Cao v. Nguyen, 258 Neb. 1027, 607 N.W.2d 528 (2000), we stated that a party is justified in relying upon a representation made to the party as a positive statement of fact when an investigation would be required to ascertain its falsity. In order for Fitl to have determined that the baseball card had been altered, he would have been required to conduct an investigation. We find that he was not required to do so. Once Fitl learned that the baseball card had been altered, he gave notice to Strek.

As the court noted in Maybank v. Kresge Co., supra, one of the most important policies behind the notice requirement of North Carolina's equivalent to § 2-607(3)(a) is to allow the seller to cure the breach by making adjustments or replacements to minimize the buyer's damages and the seller's liability. However, even if Fitl had learned immediately upon taking

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possession of the baseball card that it was not authentic and had notified Strek at that time, there is no evidence that Strek could have made any adjustment or taken any action that would have minimized his liability. In its altered condition, the baseball card was worthless.

Strek claimed via his correspondence to Fitl that if Strek had received notice earlier, he could have contacted the person who sold him the baseball card to determine the source of the alteration, but there is no evidence to support this allegation. In fact, Strek offered no evidence at trial. His letter is merely an assertion that is unsupported. Earlier notification would not have helped Strek prepare for negotiation or defend himself in a suit because the damage to Fitl could not be repaired. Thus, the policies behind the notice requirement, to allow the seller to correct a defect, to prepare for negotiation and litigation, and to protect against stale claims at a time beyond which an investigation can be completed, were not unfairly prejudiced by the lack of an earlier notice to Strek. Any problem Strek may have had with the party from whom he obtained the baseball card was a separate matter from his transaction with Fitl, and an investigation into the source of the altered card would not have minimized Fitl's damages.

Strek represented himself as a sports card dealer at a card show in San Francisco. After Fitl expressed interest in a specific baseball card, Strek contacted Fitl to sell him just such a card. Orand stated that a reputable

(Publication page references are not available for this document.)

dealer will stand behind what he sells and refund the money if an item is fake or has been altered. In the context of whether a rejection of goods was made in a reasonable amount of time, we have stated that "when there is no precise rule of law which governs, the question of what, under the circumstances of a particular case, is a reasonable amount of time is usually a question for the jury." See Smith v. Paoli Popcorn Co., 255 Neb. 910, 917, 587 N.W.2d 660, 664 (1999).

The district court found that it was reasonable to give Strek notice of a defect 2 years after the purchase. This finding was not clearly erroneous. Pursuant to § 2-607(4), the burden is on the buyer to show a breach with respect to the goods accepted. Fitl presented evidence that the baseball card was not authentic, as he had been led to believe by Strek's representations. Strek did not refute Fitl's evidence.

 

CONCLUSION

The judgment of the district court is affirmed.

Affirmed.

Neb.,2005.

James G. Fitl, appellee v. Mark Strek, doing business as Star Cards of San Francisco, appellant.

269 Neb. 51, 2005 WL 27558 (Neb.)

END OF DOCUMENT

[fantastic_four]

This decision seems to DIRECTLY parallel a comic book buyer purchasing restored comics from dealers. What I find particularly interesting about the case is that the seller and buyer met up at a con. I'm surprised the court found that a convention seller was an "authority"; all it takes is $50 to $100 to set up a table at small cons.

 

Any ideas about whether this case could be leveraged in the case of an E-Bay seller pawning off a restored comic to another person without disclosure? I don't think it can since it's tough to describe any random person sitting behind a computer with an ebay selling account as an "authority".

[fantastic_four]

This decision seems to DIRECTLY parallel a comic book buyer purchasing restored comics from dealers. What I find particularly interesting about the case is that the seller and buyer met up at a con. I'm surprised the court found that a convention seller was an "authority"; all it takes is $50 to $100 to set up a table at small cons. A dealer with a business license wouldn't surprise me, but a con dealer does, unless he also did have some kind of legitimate business set up somewhere.

 

Any ideas about whether this case could be leveraged in the case of an E-Bay seller pawning off a restored comic to another person without disclosure? I don't think it can since it's tough to describe anyone sitting behind a computer with an ebay selling account as an "authority".

[Jeffreykli]

After briefly reading the opinion, I don't think that this case will be applied to comic book dealers in Nebraska. The trial court relied on the testimony of Steve Orand, apparently as an expert witness.

 

Orand testified that "the standard for sports memorabilia was a lifetime guarantee and that a reputable collector would stand behind what he sold and refund the money if an item were fake or had been altered."

 

Comic book dealers don't give a lifetime warranty against restoration (they might with fakes), so the dealer wouldn't be liable beyond a reaonable period of time.

[fantastic_four]

Comic book dealers don't give a lifetime warranty against restoration (they might with fakes), so the dealer wouldn't be liable beyond a reaonable period of time.

 

It's common for card dealers to offer lifetime warranties? I must be in the wrong hobby!!!!

 

It sounds like this case might have snuck through on the basis of evidence alone and been decided by what the judge believed to be right...