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Armiros v. Rohr

Court of Appeals of Arizona, First Division

March 8, 2018

EVANGELOS ARMIROS, Plaintiff/Appellee/Cross-Appellant,
JULIE R ROHR, Defendant/Appellant/Cross-Appellee.

         Appeal from the Superior Court in Maricopa County No. CV2014-003314 The Honorable Randall H. Warner, Judge

          Zimmerman Reed LLP, Scottsdale By Charles S. Zimmerman Counsel for Defendant/Appellant/Cross-Appellee

          Yetnikoff Law Offices PLLC, Scottsdale By Isidore Yetnikoff Counsel for Plaintiff/Appellee/Cross-Appellant

          Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Kenton D. Jones and Judge James B. Morse Jr. joined.


          HOWE, Judge

         ¶1 Julie Rohr appeals the trial court's granting of summary judgment to Evangelos Armiros holding that a contract existed between them and that Julie[1] breached it. Julie also appeals the trial court's $135, 250 damages award to Evangelos following a bench trial. Evangelos cross-appeals, arguing that the court erred by dismissing Julie's husband, Daniel Rohr, as a defendant. We affirm the trial court's finding that a valid contract existed when Julie offered her diamond ring on eBay with the option for users to "Buy It Now" and Armiros accepted the offer by clicking the "Buy It Now" button. We also affirm the trial court's finding that, although Evangelos had not paid for the ring before Julie breached the contract, he was entitled to the benefit of the bargain and suffered damages. We further hold that Evangelos's cross-appeal against Daniel must be dismissed because Daniel is not an appellant for purposes of this appeal.


         ¶2 In February 2014, Julie listed a 10.17 carat diamond ring for sale on eBay for $100, 000 using the "Buy It Now" option. Evangelos, a Georgia resident and sole owner of E-Diamond, LLC, saw Julie's listing and emailed her about the ring. Julie provided Evangelos with the ring's Gemological Institute of America ("GIA") report number and stated that she was the ring's original owner. Evangelos again emailed Julie stating that "[i]f we have a deal, would you be willing to meet face to face at your bank or attorney to do the transaction?" After Julie agreed, Evangelos clicked the "Buy It Now" button on the listing page but was temporarily unable to complete the purchase because eBay requested that he first confirm his identity. While on hold with eBay, Evangelos emailed Julie and asked that she hold the ring until he could make the purchase; Julie stated that she would try. After eBay cleared Evangelos to purchase the ring, he clicked the "Buy It Now" button, which closed Julie's listing.

         ¶3 Shortly after Evangelos clicked the "Buy It Now" button, he and Julie arranged a time to meet in Phoenix to complete the transaction, and he purchased an airplane ticket from Georgia to Arizona. Evangelos then emailed Julie through eBay stating that he was bringing a friend with more experience because "this is an expensive one to screw up[.]" Julie and Evangelos later texted each other confirming when and where they would meet.

         ¶4 Even though Julie's original eBay listing had closed, she received an email later that evening from another eBay user offering $150, 000 for the ring. Julie responded that she believed she had already sold the ring. The eBay user told Julie that he would make a deposit on the ring and that his $150, 000 offer was "well worth canceling the deal with [Evangelos]." Julie accepted the other user's offer and emailed Evangelos advising that she would no longer sell him the ring. She also texted him that she was sorry, but the other buyer offered her more money and that completing the transaction would be easier with the other buyer. Julie subsequently sent Evangelos a cancelation request through eBay and listed her reason as, "I made a mistake in my listing price." Evangelos denied Julie's cancelation request, stating that the two had a valid contract for the ring's purchase.

         ¶5 The next day, Evangelos called and texted Julie several times to change her mind, telling her that they had a legal contract and that he would have to go "the legal way" because she did not want to work it out. Evangelos then offered Julie $150, 000 for the ring, but she declined, stating that she had decided to keep the ring and not sell it, even though she had already agreed to sell the ring to the other buyer.

         ¶6 Two months later, Evangelos sued Julie and Daniel (collectively, "the Rohrs") for breach of contract and breach of the covenant of good faith and fair dealing. Evangelos also named as a defendant the other buyer who had purchased the ring, but the buyer was dismissed as a party and subsequently settled by paying Evangelos $60, 000. Daniel moved to be dismissed from the lawsuit, arguing that although he had originally purchased the ring as an engagement ring for Julie in 2005, he currently had no property interest in the ring and was not a party to Julie and Evangelos's eBay transaction. The trial court denied Daniel's motion as premature.

         ¶7 In January 2016, Evangelos moved for summary judgment. He attached to his motion relevant portions of eBay's user agreement to show that a valid contract existed. The attached eBay user agreement stated that "[y]ou agree to comply with all the above when accessing or using our Services." It also stated that a user must be able to form a legally binding contract and that the actual contract for sale was directly between the seller and buyer. Under the "Purchase Conditions" section, the user agreement stated that buyers agree that a "legally binding contract" is entered when an item is bought or the buyer has the winning bid. After a buyer clicks the "Buy It Now" button, the buyer is "obligated" to complete the transaction and must send payment to the seller within three days. The user agreement also set a monetary limit on when a seller can request immediate payment on items less than $10, 000 and allowed the buyer to pay "by any method the seller accepts" if the buyer picked up the item in person.

         ¶8 The Rohrs cross-moved for summary judgment, asserting that no enforceable contract existed and that Evangelos had no provable damages. After hearing oral argument, the court found that both Julie and Evangelos agreed to be bound by eBay's user agreement and that listing an item under the "Buy It Now" option obligates the seller to sell the item to the "Buy It Now" buyer for the listing's specified price. Consequently, the court found that a binding contract existed. The court held that "[t]he written contract is an unambiguous manifestation of mutual assent: [Julie] offered to sell for $100, 000 and [Evangelos] accepted the offer" but that Julie repudiated the ...

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