breach of contract (via sale misrepresentation)

[hypntyz]

Well, just got word on the decision. Judge awarded him most of what he was originally seeking, minus the outrageous $3k remove/install charges that the dealership quoted.

He took the $2800 engine and depreciated it $800 for 8k miles/2yrs use and awarded him 2000 on it. He awarded $1000 for removal and install costs. I am not really happy about that, since the guy is not a mechanic or a specialist, and $1000 is the standard r/r fee for specialists...a backyard guy would normally get a few hundred bucks MAX for such a job.

Anyway, he also awarded him filing fees, $215, for a total of $3215.

The judgement is not specific in whether or not I get the original engine back, but I am assuming that I do. I will likely have to cover shipping costs to get it back however, which will be in the $300 range, on top of my travel costs and attorney fees which are now around $2000.

The OK attorney says it is a decision that could be appealed but he would not really recommend it because he doesnt think we'd come out much better, once the additional attorney fees and filing fees that an appeal would incur are accounted for.

Now I get to talk to my local TN attorney to see whether or not I want to challenge this when he comes to TN to collect, or if it is best to just pay out and be done with it. IT depends on whether my attorney thinks he can be awarded more money if I make it hard for him to collect.

 

[Michael Wechsler]

And in challenging him in TN is where you can negotiate to a real settlement amount. Glad to hear that at least he wasn't awarded the home run. The removal and install costs is rather absurd but I don't know the details. Let us know how things proceed. You made your decision and chances are this was probably the better one than showing up in his home court - at least that is my feeling on the subject.

 

[hypntyz]

hmmm...perhaps there is a misunderstanding here.

I live in Tn. The Plaintiff lives in Ok. He sued me in Ok. I hired an attorney in Ok to represent me. Initially this was just to challenge that Ok had jurisdiction in the case.

Ok eventually ruled that they did have jurisdiction and the case was to be heard there. My Ok attorney recommended that I come to Ok and personally help defend my interests, so I did go to court in Ok last week.

Today Ok rendered the judgement against me.

Several settlement offers were made to the plaintiff before and during court proceedings, all of which fell on deaf ears. Oddly enough, the total settlement is basically in line with what I was already offering him, within a few hundred dollars anyway.

 

[hypntyz]

Here are some issues that I strongly disagree with regarding this case:

1) I apparently do not meet minimum contacts in Ok. I do not advertise there and have only sold 2-3 items over the last several years (including this engine). My only form of advertising is my website.

2) the buyer called me, in TN, to initiate the transaction. Further, he mailed payment to TN for the item.

3) the buyer paid to ship the item from Tn to Ok. The shipping cost was paid directly from the buyer to the shipping carrier. Thus, by the letter of the law, the buyer contracted the shipper to move the item from Tn to him, and therefore he "took delivery" of the item in TN, and not Ok. The judge ruled that Ok had jurisdiction on the case because he felt that the buyer "took delivery" of the item in Ok in spite of this fact.

4) this was filed as a breach of contract. however no contract was signed or provided, other than an oral contract for purchase of the engine. a written receipt with warranty terms is all the documentation that was provided. By definition, a written contract requires signature of both parties involved. The judge chose to ignore this definition and concluded that the written receipt with warranty constituted a 'contract".

5) The buyer was seeking $3k in damages for removal and installation, in addition to other damages. When asked where this figure came from, the buyer produced a labor quote from a mazda dealership, for what they might charge for such a job. When asked further, the buyer admitted that he and his friends installed the engine themselves in their garage, at no cost to themselves, and this is also how the engine would be removed. The buyer admitted that he nor any of his friends were mechanics or specialists. Note that the standard charge for remove/install for a specialist or engine shop is in the $800-1000 range. The judge saw fit to award the buyer $1000 in damages for remove/install, the standard rate for a trained specialist, even though the buyer is not such and expended no money during the install/removal. The engine warranty I provide does not allow for consequential damages.

6) during the small claims court, the plaintiff offered nearly 20 exhibits, most of which were website or email printouts from 3rd parties. My attorney objected to each of these on the grounds they could not be substantiated, but the judge allowed in all of them except for the last 2.

7) during court, I had several signed, notarized statements from other engine builders supporting my case. the plaintiff had several unsigned, non-notarized email printouts from other builders supporting his side. The judge allowed the plaintiff's versions in as evidence over my lawyer's objections. When I tried to submit mine, which were signed and notarized, the plaintiff objected because he could not cross examine these witnesses. The judge agreed, and refused to let my statements in. Eventually he agreed to let them in ONLY if I could call the authors, have them call the phone in the judge's chambers, be put on speakerphone and be cross examined by the plaintiff. What legal procedure does this double standard follow again?

 

[Michael Wechsler]

Sorry about that!!! I answer so many questions here that I thought this was one of the long arm jurisdiction cases since you mentioned TN! Let me look over what you have later and I'll reply...

 

[hypntyz]

Just as an update, possession of the engine as well as shipping charges and arrangements were not detailed in the judgement so I have asked my attorney to seek clarification regarding that. Is it normal for a judge not to outline all aspects of the decision? This seems a fairly obvious void, for an educated man to overlook...makes me wonder about the competence of the man holding my financial fate in his hands.