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Dwayne B.
Dwayne B., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 27022
Experience:  Practicing for over 20 years and handled many cases and trials for consumers.
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Hi again, I would like to ask a new question but not sure how

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Hi again, I would like to ask a new question but not sure how I can get you to answer and not a different expert. Hopefully this will work. :)

My daughter drive 60 miles one way to go to a sale at Walmart. When she got home she discovered the next day when unpacking her bags they had forgotten to put one of the bags with her purchases in her cart. She called the store the next day and apparently they keep a log of items which were paid for and accidently left behind by customers. They confirmed her items were logged into their book and told her to come back to the store and she could pick up her items. She went to the store and was told they had returned the items back to the shelves and they had been resold. They were unable to replace the exact items because they were on sale and did not have any more to give her. They refused to replace the items with like kind and quality.

I am not sure if the items they accidently did not give her after she purchased them would be considered 'abandoned' or 'unclaimed' but there is state law governing both of those situations. The law does not allow someone to just retake possession and resale without due process. The store has offered to refund her the cost of the items they resold, but because she did not have her receipt when she went to pick up the items after calling, they refused to refund at that time but require that she return in person (not submit by mail) with the receipt. The cost of the sale items she purchased and did not receive is only about $17. The cost to go to Walmart and back each time exceeds $17. What legal recourse does she have? I think she has incurred damages in that she is having to spend more than the cost of the items in order to retrieve them; I think Walmart stole her items and should be required to replace with like kind and quality; I think Walmarts practice of reselling these items is criminal and who knows how many other people they do this to? Do you think there are grounds for any legal action and if so, what legal action would you recommend.
Submitted: 11 months ago.
Category: Consumer Protection Law
Expert:  LawTalk replied 11 months ago.

Good afternoon,

Thanks for asking for me.

As your question concerns the legality of the store re-selling the things that she left there accidentally, that is a criminal law question. I will transfer the question to the Criminal Law category and allow someone in that category to assist you, as I am preparing to leave for the evening.

In the future, if you want me to assist you, all you need do is begin your new question by saying that the question is for Doug or Lawtalk, and that should do it.

I hope that you gave a great evening,

Doug

Customer: replied 11 months ago.


Sounds good, Doug. Have a great evening as well.

Barb

 

It has been opened to all family law experts, not criminal law per your reply?

Customer: replied 11 months ago.


Hi any experts available yet to respond to my inquiry??

Expert:  Dwayne B. replied 11 months ago.
Hello.

I think it is extremely unlikely there were any criminal laws broken but if you will provide your state I will look at your specific state's theft statute to be sure.

I do think what Wal Mart is doing is unethical and could easily be a deceptive trade practice but before we examine that issue let's look at the criminal one.
Customer: replied 11 months ago.

Montana, the store is located in Missoula County

Expert:  Dwayne B. replied 11 months ago.
You can read the Montana theft statute at http://www.offendersolutions.com/state_law/montana%20theft.htm

When you read the statute at first glance it appears that WM did commit theft. However, the issue is somewhat clouded by the fact that the goods were left at the store accidentally because the statute requires that they would have "knowingly" obtained or exert(ed) unauthorized control. Everything flows from the unauthorized control.

The argument from your daughter's point of view is that while she may have authorized them to have control, they took steps or committed acts knowing that it would deprive your daughter of the property and that this control, as opposed to holding the property for her, was unauthorized.

Knowing district attorneys and the way they work it is almost a 100% chance they will not choose to prosecute this as a criminal case.

As to a civil cause of action I think she could sue and force them to give the specific items back to her as opposed to getting her money back.

As to the requirement that she provide a receipt or pick the items up in person, there is no law that would require Wal Mart to give the items to her without a receipt not would it be required that they mail her a check or mail her the items.

In my opinion there is no question they were wrong in returning the items to the shelf and reselling them when they were aware that the items had already been purchased and the buyer.owner would be coming to pick them up.
Dwayne B., Lawyer
Satisfied Customers: 27022
Experience: Practicing for over 20 years and handled many cases and trials for consumers.
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