Lawsuit progress
03-17-2009, 12:12 PM
#1
Racer
Thread Starter
Lawsuit progress
Hi all!
Some may recall a thread I started last year called "Body & paint progress," in which I described the daily progress of work on my car and then the problems that arose at the end of the project. This is a follow-up to that thread. (Sorry, I can't figure out how to post a link to that thread.)
I was short on money and could only afford to have Midwestern Auto Group ("MAG") fix the mechanical components that were directly related to the previous shop's shoddy repairs with respect to the parking brakes and electrical stuff. MAG charged me $820.26 for that.
I took the car directly from MAG to Ed Pimm' shop in Plain City, OH, and Ed took it as a personal challenge to rebuff the paint and properly install the loose parts and otherwise get the car looking as nice as possible. He charged me $942.67, and noted there were problems with the paint that would get worse over time (and in fact have gotten worse).
So, I filed a lawsuit last April under Ohio's Consumer Sales Practices Act, ORC 1345.02, which allows for some very hefty penalties in a case like this. (For example, look up Whitaker v. M.T. Automotive, 111 Ohio St.3d 177.)
I have 12 claims, each of which can garner distinct economic and noneconomic damages:
a. It was a "deceptive act or practice" for Defendant to have failed, at the time of the initial face-to-face contact and prior to the commencement of any repair or service, to provide Plaintiff with a form complying with Ohio Adm.R. 109:4-3-13(A)(1).
b. It was a "deceptive act or practice" for Defendant to have failed to post a conspicuous sign at Defendant’s place of business complying with Ohio Adm.R. 109:4-3-13(A)(2).
c. It was a "deceptive act or practice" for Defendant to have failed, in all other instances, upon first contact with Plaintiff, to inform Plaintiff of the right to receive a written or oral estimate. Ohio Adm.R. 109:4-3-13(B)(2). [This claim is raised separately from claim (a), above, because the nature of the consumer transaction (with respect to the Porsche) changed when Defendant allowed Plaintiff to remove the Jaguar to sell to another party.]
d. It was a "deceptive act or practice" for Defendant to have failed to disclose upon first contact with Plaintiff, in written form, the basis upon which a charge would be imposed for towing the Jaguar and Porsche. Ohio Adm.R. 109:4-3-13(C)(7).
e. It was a “deceptive act or practice” for Defendant to have materially understated or misstated the estimated cost of repair to the Porsche. Ohio Adm. R. 109:4-3-13(C)(11).
f. It was a “deceptive act or practice” for Defendant to have failed to provide Plaintiff with a written itemized list of repairs which specifically itemized each replaced part, in compliance with Ohio Adm.R. 109:4-3-13(C)(12) or (14), in that Defendant’s invoice did not contain a complete list of repairs performed or services rendered, nor the identity of the individual(s) performing the repairs or services, nor a description of the Porsche as would reasonably identify it or any part thereof that was serviced or repaired.
g. It was a “deceptive act or practice” for Defendant to have failed to advise Plaintiff of a dollar figure for hourly labor cost, which deprived Plaintiff reasonable opportunity to consider Defendant’s offer or compare it with other options reasonably available to Plaintiff. ORC § 1345.02(A).
h. It was a “deceptive act or practice” for Defendant to have represented to Plaintiff, or to any other party, that the workmanship to the Porsche was of sound quality, when it was not. ORC § 1345.02(B)(2).
i. It was a “deceptive act or practice” for Defendant to have failed to return new parts to Plaintiff, which Plaintiff purchased so that Defendant could perform specific services or repairs with such parts. ORC § 1345.02(B)(2).
j. It was an “unconscionable consumer sales act or practice” for Defendant to have withheld possession of the Porsche from Plaintiff, or to otherwise act as if to impose a mechanic’s lien, after Defendant had committed prior deceptive or unfair acts, ORC § 1345.03(B)(5), and where such an act had been previously determined by courts of Ohio to violate ORC § 1345.02.
k. It was an “unconscionable consumer sales act or practice” for Defendant to have misled Plaintiff or misstated to Plaintiff the true market value of the Jaguar, and Defendant knew that Plaintiff substantially relied upon Defendant’s misleading statements, to Plaintiff’s detriment; inasmuch as Defendant had committed prior deceptive or unfair acts (e.g., towing without a written estimate); and inasmuch as Defendant had physical possession of both the Porsche and Jaguar and thus knew his terms were substantially one-sided in his favor. Defendant’s fraudulent valuation of the Jaguar formed the basis of all subsequent consumer transactions related herein. ORC § 1345.03(B)(5) and (6).
l. It was an “unconscionable consumer sales act or practice” for Defendant to have created an invoice for an amount of $6,700.30 on February 14, 2008, and compelled Plaintiff to pay such amount on February 16, after Defendant had verbally advised Plaintiff on February 11 that the total bill would be $6,250.00, where Defendant knew the transaction to be substantially one-sided in his favor, and after Defendant had committed prior deceptive or unfair acts. ORC § 1345.03(B)(5).
We had a settlement conference last week, at which they offered $2,000 and I demanded $167,000. Needless to say, we're headed for trial on April 13.
At present we're hoping the court will grant default judgment on claims a, b, d and f.
Anyone have any technical advice to offer regarding the work done on the car?
Some may recall a thread I started last year called "Body & paint progress," in which I described the daily progress of work on my car and then the problems that arose at the end of the project. This is a follow-up to that thread. (Sorry, I can't figure out how to post a link to that thread.)
I was short on money and could only afford to have Midwestern Auto Group ("MAG") fix the mechanical components that were directly related to the previous shop's shoddy repairs with respect to the parking brakes and electrical stuff. MAG charged me $820.26 for that.
I took the car directly from MAG to Ed Pimm' shop in Plain City, OH, and Ed took it as a personal challenge to rebuff the paint and properly install the loose parts and otherwise get the car looking as nice as possible. He charged me $942.67, and noted there were problems with the paint that would get worse over time (and in fact have gotten worse).
So, I filed a lawsuit last April under Ohio's Consumer Sales Practices Act, ORC 1345.02, which allows for some very hefty penalties in a case like this. (For example, look up Whitaker v. M.T. Automotive, 111 Ohio St.3d 177.)
I have 12 claims, each of which can garner distinct economic and noneconomic damages:
a. It was a "deceptive act or practice" for Defendant to have failed, at the time of the initial face-to-face contact and prior to the commencement of any repair or service, to provide Plaintiff with a form complying with Ohio Adm.R. 109:4-3-13(A)(1).
b. It was a "deceptive act or practice" for Defendant to have failed to post a conspicuous sign at Defendant’s place of business complying with Ohio Adm.R. 109:4-3-13(A)(2).
c. It was a "deceptive act or practice" for Defendant to have failed, in all other instances, upon first contact with Plaintiff, to inform Plaintiff of the right to receive a written or oral estimate. Ohio Adm.R. 109:4-3-13(B)(2). [This claim is raised separately from claim (a), above, because the nature of the consumer transaction (with respect to the Porsche) changed when Defendant allowed Plaintiff to remove the Jaguar to sell to another party.]
d. It was a "deceptive act or practice" for Defendant to have failed to disclose upon first contact with Plaintiff, in written form, the basis upon which a charge would be imposed for towing the Jaguar and Porsche. Ohio Adm.R. 109:4-3-13(C)(7).
e. It was a “deceptive act or practice” for Defendant to have materially understated or misstated the estimated cost of repair to the Porsche. Ohio Adm. R. 109:4-3-13(C)(11).
f. It was a “deceptive act or practice” for Defendant to have failed to provide Plaintiff with a written itemized list of repairs which specifically itemized each replaced part, in compliance with Ohio Adm.R. 109:4-3-13(C)(12) or (14), in that Defendant’s invoice did not contain a complete list of repairs performed or services rendered, nor the identity of the individual(s) performing the repairs or services, nor a description of the Porsche as would reasonably identify it or any part thereof that was serviced or repaired.
g. It was a “deceptive act or practice” for Defendant to have failed to advise Plaintiff of a dollar figure for hourly labor cost, which deprived Plaintiff reasonable opportunity to consider Defendant’s offer or compare it with other options reasonably available to Plaintiff. ORC § 1345.02(A).
h. It was a “deceptive act or practice” for Defendant to have represented to Plaintiff, or to any other party, that the workmanship to the Porsche was of sound quality, when it was not. ORC § 1345.02(B)(2).
i. It was a “deceptive act or practice” for Defendant to have failed to return new parts to Plaintiff, which Plaintiff purchased so that Defendant could perform specific services or repairs with such parts. ORC § 1345.02(B)(2).
j. It was an “unconscionable consumer sales act or practice” for Defendant to have withheld possession of the Porsche from Plaintiff, or to otherwise act as if to impose a mechanic’s lien, after Defendant had committed prior deceptive or unfair acts, ORC § 1345.03(B)(5), and where such an act had been previously determined by courts of Ohio to violate ORC § 1345.02.
k. It was an “unconscionable consumer sales act or practice” for Defendant to have misled Plaintiff or misstated to Plaintiff the true market value of the Jaguar, and Defendant knew that Plaintiff substantially relied upon Defendant’s misleading statements, to Plaintiff’s detriment; inasmuch as Defendant had committed prior deceptive or unfair acts (e.g., towing without a written estimate); and inasmuch as Defendant had physical possession of both the Porsche and Jaguar and thus knew his terms were substantially one-sided in his favor. Defendant’s fraudulent valuation of the Jaguar formed the basis of all subsequent consumer transactions related herein. ORC § 1345.03(B)(5) and (6).
l. It was an “unconscionable consumer sales act or practice” for Defendant to have created an invoice for an amount of $6,700.30 on February 14, 2008, and compelled Plaintiff to pay such amount on February 16, after Defendant had verbally advised Plaintiff on February 11 that the total bill would be $6,250.00, where Defendant knew the transaction to be substantially one-sided in his favor, and after Defendant had committed prior deceptive or unfair acts. ORC § 1345.03(B)(5).
We had a settlement conference last week, at which they offered $2,000 and I demanded $167,000. Needless to say, we're headed for trial on April 13.
At present we're hoping the court will grant default judgment on claims a, b, d and f.
Anyone have any technical advice to offer regarding the work done on the car?
03-17-2009, 12:53 PM
#2
Instructor
unless your actual damages are reflected in the amount demanded, a good defense attorney will claim "unjust enrichment" for the damges. you will need a connection between enrichment and the impoverishment, to show your claim being just.
<----not an attorney, just making a statement.
<----not an attorney, just making a statement.
03-17-2009, 12:59 PM
#3
I don't know about technical advice (perhaps you could post a link to last years thread), but I have some good legal advice for you... delete the details that you posted above. If the defendants attorneys got a hold of that (regardless of factual content), it *could* be used against you. That sort of information from a pending legal matter does NOT belong on a public forum.
Having said that, I hope justice prevails, and a reasonable settlement is acheived by all.
Regards,
Having said that, I hope justice prevails, and a reasonable settlement is acheived by all.
Regards,
03-17-2009, 02:47 PM
#4
Racer
Thread Starter
Appreciate the responses.
As for "unjust enrichment": you have the shoe on the wrong foot. If this were a common-law action that could be among my claims against the Defendant. The damages we seek are out there in la-la land because that's the intention of the Consumer Sales Practices Act, to make it exceptionally unattractive for suppliers to engage in deceptive acts, and to make it attractive for consumers to seek redress in court (reasonable attorney fees are also rendered, per statute).
As for deleting anything: no, I have confidence in my case and in the truth of matters, and I'm not the least bit afraid that the Defendant would see something here that has been in Court for almost a year.
I posted this here because I know others have been screwed over by a shop, and I want to share with everyone that the law is very VERY much on the side of the consumer regarding motor vehicle repairs. The Ohio CSPA is modeled after federal law, and similar laws exist in nearly every state.
As for "unjust enrichment": you have the shoe on the wrong foot. If this were a common-law action that could be among my claims against the Defendant. The damages we seek are out there in la-la land because that's the intention of the Consumer Sales Practices Act, to make it exceptionally unattractive for suppliers to engage in deceptive acts, and to make it attractive for consumers to seek redress in court (reasonable attorney fees are also rendered, per statute).
As for deleting anything: no, I have confidence in my case and in the truth of matters, and I'm not the least bit afraid that the Defendant would see something here that has been in Court for almost a year.
I posted this here because I know others have been screwed over by a shop, and I want to share with everyone that the law is very VERY much on the side of the consumer regarding motor vehicle repairs. The Ohio CSPA is modeled after federal law, and similar laws exist in nearly every state.
03-17-2009, 08:49 PM
#6
Rennlist Member
Having been on the other side of that act (cspa) I can tell you the risks of loosing the case make a settlement very loopsided in the favor of the plantiff. Generally the demands are stupid high and the award from the court is 3 times the actual proven damages. I would seek a fair and reasonable settlement that covers the damages and a reasonable amount for other damages!! Just my 2 cents!!!
03-17-2009, 10:06 PM
#7
Racer
Thread Starter
Thanks for chiming in, Mike. You've seen my car and listened to me whine about it enough.
That said, I wouldn't want to be on the other side of this kind of suit, and I'm sorry someone of your integrity had to endure it.
That said, I wouldn't want to be on the other side of this kind of suit, and I'm sorry someone of your integrity had to endure it.
Trending Topics
03-17-2009, 10:45 PM
#8
Addict
Rennlist Member
Rennlist Member
What court are you n?
03-17-2009, 11:39 PM
#9
Racer
Thread Starter
The case is pending in Bryan, Ohio - Wiliams County Court of Common Pleas.
I'll respond to you via e-mail, Gregg.
I'll respond to you via e-mail, Gregg.
Last edited by rdhayward; 03-18-2009 at 01:18 AM.
03-18-2009, 10:40 PM
#10
Rennlist Member
We had a deal where the builder ignored a water problem in the basement and becasue we installed the gutter drains we were drawn in and this was like 4 or 5 years after we did the job. Treble was being claimed and as you know that is thriple the award if the case goes the wrong way. And to make matters worse you have no insurance coverage if you loose...so guess what you settle...3k for me and 20k for my insurance company. The builder walked away...a real pr!ck!!!
03-18-2009, 10:47 PM
#11
Nordschleife Master
Given the fact that you just publicized the entire close door happenings about your case to the world...I wish you luck but would HIGHLY suggest you remove the contents since you are headed to trial.
C.
C.
03-19-2009, 01:04 PM
#12
Racer
Thread Starter
And nothing about the settlement conference is admissible at trial, and I sacrifice nothing by publicizing my end of it.
03-19-2009, 01:08 PM
#13
Racer
Thread Starter
We had a deal where the builder ignored a water problem in the basement and becasue we installed the gutter drains we were drawn in and this was like 4 or 5 years after we did the job. Treble was being claimed and as you know that is thriple the award if the case goes the wrong way. And to make matters worse you have no insurance coverage if you loose...so guess what you settle...3k for me and 20k for my insurance company. The builder walked away...a real pr!ck!!!
03-19-2009, 04:45 PM
#14
Nordschleife Master
C.
04-07-2009, 09:10 AM
#15
Racer
Thread Starter
I've spent the last three weeks immersed in preparing various pleadings that were due yesterday - 7 days prior to trial.
I still have an office in Columbus, Ohio, so that made it easy for me to work while I visited the Supreme Court's law library and sought records of various cases like mine. I even had a conference with a judge who presided over a trial regarding PepBoys a few years back.
Now I'm at my sister's place in Michigan, which is only a 2-hour drive to the court in Bryan, Ohio.
Yesterday I filed my trial brief, explaining my case in detail (53 pages); jury instructions (75 pages); verdict forms (15 pages); witness list and subpoenas (12 pages); a motion for the judge to take "judicial notice" of previous cases like mine (4 pages); and exhibits and a couple of CD's with photos, and the recordings of phone calls I made to the sheriff last year.
I got out of here at 11 AM yesterday, drove to a Kinko's in Toledo and spent $100 on printing and binding.
Then I had to drive to a little town called Van Wert, where the only Wells Fargo bank in Ohio is located, so I could get some checks printed. (I was out of checks, as my box of printed checks is in my storage unit in Colorado.)
I made it to the courthouse in Bryan at 4:20, just 10 minutes before closing time. The judge came in to review all of my materials before accepting them (a local practice regarding self-represented non-attorneys). He gave me back my exhibits and said to present them at trial. I asked him if he was going to require me at trial to ask myself questions, or to narrate my case. And he said he wouldn't make me ask myself questions.
I mean, wow, would that make me look like I have a fool for a client, or what?!
After the clerk closed the doors to their office, I found that I had forgotten to give them subpoenas. Fortunately, one of the ladies was willing to open the doors again and accomodate me to file them. The subpoeana fees were $175.
On the way out of Bryan, I stopped at the defendant's attorney's office and dropped off copies of everything I'd just filed in court.
I got back to my sister's house just before 7 pm.
A friend of mine in Montrose, Colorado called last night about getting a couple of suits out of my storage unit and sending them here. So the only thing I really have to do today is wait for the UPS Store to call so I can pay for the shipping.
I'm so relieved I don't have any legal work to do today. I'll give myself 2 days' break and then start preparing for trial.
Thanks for the supportive emails and comments. And special thanks to Gregg for the pointers.
Blessings,
Ralph
I still have an office in Columbus, Ohio, so that made it easy for me to work while I visited the Supreme Court's law library and sought records of various cases like mine. I even had a conference with a judge who presided over a trial regarding PepBoys a few years back.
Now I'm at my sister's place in Michigan, which is only a 2-hour drive to the court in Bryan, Ohio.
Yesterday I filed my trial brief, explaining my case in detail (53 pages); jury instructions (75 pages); verdict forms (15 pages); witness list and subpoenas (12 pages); a motion for the judge to take "judicial notice" of previous cases like mine (4 pages); and exhibits and a couple of CD's with photos, and the recordings of phone calls I made to the sheriff last year.
I got out of here at 11 AM yesterday, drove to a Kinko's in Toledo and spent $100 on printing and binding.
Then I had to drive to a little town called Van Wert, where the only Wells Fargo bank in Ohio is located, so I could get some checks printed. (I was out of checks, as my box of printed checks is in my storage unit in Colorado.)
I made it to the courthouse in Bryan at 4:20, just 10 minutes before closing time. The judge came in to review all of my materials before accepting them (a local practice regarding self-represented non-attorneys). He gave me back my exhibits and said to present them at trial. I asked him if he was going to require me at trial to ask myself questions, or to narrate my case. And he said he wouldn't make me ask myself questions.
I mean, wow, would that make me look like I have a fool for a client, or what?!
After the clerk closed the doors to their office, I found that I had forgotten to give them subpoenas. Fortunately, one of the ladies was willing to open the doors again and accomodate me to file them. The subpoeana fees were $175.
On the way out of Bryan, I stopped at the defendant's attorney's office and dropped off copies of everything I'd just filed in court.
I got back to my sister's house just before 7 pm.
A friend of mine in Montrose, Colorado called last night about getting a couple of suits out of my storage unit and sending them here. So the only thing I really have to do today is wait for the UPS Store to call so I can pay for the shipping.
I'm so relieved I don't have any legal work to do today. I'll give myself 2 days' break and then start preparing for trial.
Thanks for the supportive emails and comments. And special thanks to Gregg for the pointers.
Blessings,
Ralph