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Flodman v. Robinson

Court of Appeals of Nebraska

June 9, 2015

BURDETTE FLODMAN AND PHYLLIS FLODMAN, APPELLEES,
v.
CORKY ROBINSON, DOING BUSINESS AS THE VACUUM COMPANY, APPELLANT

Page 717

[Copyrighted Material Omitted]

Page 718

Appeal from the District Court for Polk County, PATRICIA A. LAMBERTY, Judge, on appeal thereto from the County Court for Polk County, STEPHEN R.W. TWISS, Judge.

Kelly M. Thomas, of Svehla Law Offices, P.C., for appellant.

No appearance for appellees.

MOORE, Chief Judge, and IRWIN and RIEDMANN, Judges.

OPINION

Page 719

[22 Neb.App. 945] Moore, Chief Judge.

Corky Robinson, doing business as The Vacuum Company, appeals from an order of the district court for Polk County, which found in favor of Burdette Flodman and Phyllis Flodman in connection with their claim arising out of a purchase of a vacuum cleaner from Robinson. Sitting as an appellate court, the district court affirmed an order of the small claims division of the Polk County Court. In this appeal, Robinson asserts that the county court erred when it determined that the cancellation notice contained in the purchase agreement violated the statutes regulating home solicitation sales. Robinson also argues that the county court should not have accepted a copy of the purchase agreement into evidence and that the court erred in requiring him to return the Flodmans' two previously owned vacuum cleaners. For the reasons that follow, we affirm in part, and in part reverse and remand with directions.

Page 720

FACTUAL BACKGROUND

On December 19, 2013, Robinson visited the Flodmans at their home with the objective of selling them a vacuum cleaner. The Flodmans eventually purchased one of Robinson's vacuum cleaners for $510. As part of this transaction, the Flodmans gave Robinson two of their old vacuum cleaners, a " Dyson Ball" and a " Rainbow." Robinson accepted $500 in full satisfaction of the price of the vacuum cleaner.

To memorialize the sale, Robinson prepared and delivered to the Flodmans two copies of his standard purchase agreement. Robinson retained a third copy for his records. Robinson's purchase agreement contains a description of the sale as well as an advisement regarding a buyer's right to cancel. The advisement, in all capital letters, informs the buyer that he or she " 'MAY CANCEL THIS TRANSACTION AT ANY TIME PRIOR TO MIDNIGHT OF THE THIRD BUSINESS DAY AFTER THE DATE OF THIS TRANSACTION. SEE THE ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.'" Phyllis signed [22 Neb.App. 946] the agreement, certifying that she was given notice of her rights as a buyer and that she had received two copies of the agreement.

The separate notice of cancellation is printed to the side of the purchase agreement. The notice, reproduced in its entirety below, advises the purchaser:

BUYER'S RIGHT TO CANCEL

NOTICE OF CANCELLATION

Date of Transaction
You may CANCEL this transaction, without any Penalty or Obligation, within THREE BUSINESS DAYS from the above date. If you cancel, any property traded in, any payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within TEN BUSINESS DAYS following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled.
If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale, or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk.
If you do make the goods available to the seller and the seller does not pick them up within 20 days of the date of your Notice of Cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract. To cancel this transaction, mail or deliver a signed and dated copy of this Cancellation Notice or any other written notice, or send a telegram, to. The Vacuum Company, 1805 S 9th St. Lincoln Ne. 68502
NO LATER THAN MIDNIGHT OF
I HEREBY CANCEL THIS TRANSACTION.
(Date)
(Buyer's Signature)

[22 Neb.App. 947] In addition to the above, Robinson's standard purchase agreement also specifies that he does not accept any other form of communication in place of the requirement for written cancellation. Finally, the form explains that all sales are final after the 3-day cancellation period elapses.

On the notice of cancellation given to the Flodmans, Robinson ...


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