Originally created 05/16/04

Small claims bring big pains



David Lachman was driving back to Augusta in his ragtop Chrysler Sebring about two years ago when he saw a billboard for a Cracker Barrel just outside Columbia.

Feeling hungry after a full morning of meetings, the 57-year-old electrical engineer decided he would take the restaurant's exit a mile ahead.

He never made it.

Warning lights on the car's dashboard lighted up one by one. The engine in the 2-year-old vehicle already was grinding to a halt by the time Mr. Lachman hit the brakes and pulled over.

"There was black smoke everywhere," he said.

Several phone calls and two tow trucks later, Mr Lachman was standing in a service bay at Milton Ruben Chrysler/Jeep, the Augusta dealership where he bought the car.

He learned that the engine had sustained irreparable heat damage from a sudden loss of coolant. The culprit: a corroded freeze plug.

The tiny metal cap, designed to pop out only during extreme freezing temperatures, had melted from within, causing the engine to hemorrhage coolant.

The 10-cent part resulted in Mr. Lachman's paying a $6,500 repair bill and set off a months-long dispute among him, Chrysler and the dealership over how a regularly serviced engine could corrode from the inside out in less than 41,000 miles.

Mr. Lachman suspected the dealership's technicians created a corrosive mixture 10 months before the engine failure by improperly flushing out the ethylene glycol coolant and replacing it with differently formulated propylene glycol.

"It was either a defective part or defective servicing," said Mr. Lachman, who researched Chrysler records for freeze plug problems. "There was no evidence pointing to the part."

Mr. Lachman did what tens of thousands of consumers across the country do every year: file a lawsuit in small claims court.

"TAKE 'EM TO COURT." It's a common refrain in a society that relishes the notion that a common man can act as his own attorney and present a case to an impartial judge. Most people, though, know little about the process, which can be more confusing and intimidating than what is portrayed on TV court shows.

Although small claims court proceedings are more relaxed than those of criminal cases or even large civil cases, the rules of law still apply, said Wade Padgett, an associate magistrate judge who sits in on Columbia County small claims court proceedings.

Using hearsay as evidence is probably the biggest mistake people make in court, he said.

"You cannot stand up here and tell me what someone else told you," he said. "If a mechanic told you that some other car repair place broke your car, you need to bring that warm-body mechanic to court."

Failure to bring crucial documents, receipts, photos and other evidence is also a sure case-killer, he said.

"You would not believe the number of times people will show up for their court date and say, 'I've got that at home,'" he said. "Whatever you have that is relevant to your case, bring it with you."

Another small claims court gotcha is that one party can hire an attorney to present its case, even if the other doesn't. The only exception is in California.

Annie Thompson, 62, was sued in Richmond County small claims court last year by a collection agency for failure to pay a $4,800 consumer finance loan that she took out several years ago after her husband lost his job but before she relocated to Augusta.

The final judgement, which included penalties and interest, was more than $11,500, a figure the retiree believes could have been negotiated down had she been able to afford an attorney.

"I was working without any knowledge of the law," the New York native said. "I didn't understand these court words and codes."

States are progressively making small claims courts more user-friendly, but there is still a long way to go, said Tom Gordon, the senior counsel for the Washington-based legal reform organization known as HALT.

Each year his organization gives letter grades to state small claims courts based on things such as their convenience, dollar limit and mediation programs. No state has received an A, but Georgia courts this year earned the top grade of B mainly because it allows cases up to $15,000 and because many of its counties offer free mediation services. South Carolina, which limits cases to $7,500, earned a C.

"We recommend a dollar limit of $20,000," Mr. Gordon said. "The average price of a new car is over $20,000, so if you can buy a new car without involving a lawyer, you should be able to resolve a dispute over one without involving a lawyer."

MR. LACHMAN HAS no legal experience, but he was well-prepared for his December court date in Columbia County. He had sat in on a couple of cases to observe the process and made sure his 8-inch stack of documents was in order and that his three witnesses - an independent mechanic, a radiator specialist and a former Milton Ruben technician - would testify and be cross-examined by the defendant's attorney.

Mr. Lachman's case was well-prepared, but it was weak. His argument, based on circumstantial evidence, contained no hard proof the dealership did anything wrong. He lost the case.

"The judge said that unless I had a witness to prove they did something wrong, he could not find in my favor. Two weeks later I received the judgment letter," said Mr. Lachman, whose dispute consumed 16 months. "At that point, I dropped it."

Milton Ruben General Manger Jim Bernstein said Mr. Lachman's theory that a botched coolant flush caused his engine problems is absurd.

"He concocted a whole scenario in which it was clear in his mind that the problem was our responsibility," Mr. Bernstein said. "His claims were specious, and that is why he lost the case."

Mr. Bernstein said he personally tried to work with Mr. Lachman, and added that he was disappointed he was unable to resolve the issue in-house, as is the case with "99.99 percent" of disputes at the dealership.

THE SMALL CLAIMS process can be tough on the average consumer, even when he or she wins the case. Just ask Pamela Grygo.

The 54-year-old registered nurse sued the now-defunct Southeastern Flooring on Wrightsboro Road in Augusta for failing to fix the botched job it did on her wood flooring. She won the case and was awarded $4,000. Two years later, she still hasn't seen a dime.

She discovered what most people don't know - winning a case doesn't mean you automatically get your money.

"When you get a judgment, you've got this piece of paper, but it doesn't come attached to a check," said Craig Smith, a partner in Kilpatrick Stockton LLP's Augusta law office.

Unlike the debtors prisons in the old English legal system, modern courts have no power to punish people for failure to pay their monetary damages. Ms. Grygo wishes they did.

"There ought to be some recourse for the people who do win," she said. "There should be some restitution where the payment is guaranteed through the court system."

Lee Bridges Jr., the former owner of Southeastern Flooring, declined to comment on why he would not pay Ms. Grygo when contacted at his Tanglewood Drive home in west Augusta.

Most businesses avoid litigation by settling cases out of court, and companies that do lose usually pay up. But collecting from a stubborn loser requires the plaintiff to go through more legal proceedings, do a bit of detective work and possibly hire an attorney.

Many consumers frustrated by the system would rather give up than prolong the process.

"It was just mentally and physically exhausting for me to keep going through all this," Ms. Grygo said.

With the exception of California, no state small claims court enforces a judgment, Mr. Gordon said. His group advocates that courts should have an enforcement mechanism in place or at least provide the winner with a list of the other party's assets.

"Courts should be evolving to the point where if you are not walking out with your money in hand, you walk out knowing where your money is," he said.

CURRENTLY, THE WINNER is largely on his or her own. One of the tools a plaintiff can use in collections is a writ of fieri facias, a legal document commonly referred to as a "fifa," which allows the plaintiff to place a lien on the losing party's real or personal property, such as land or cars. This keeps the individual or corporation from selling the assets until the judgment is satisfied, though it could take several years before the money is recovered.

The fifa also can help a plaintiff, with the help of the sheriff, seize the other party's personal property, such as a stereo or furniture, to pay the judgment.

Another weapon is garnisheeing, in which the plaintiff makes a claim on money in the other party's bank account, assuming an account exists, has money in it and the plaintiff has the account information. If the party works for a company, the plaintiff also can have the debtor's wages garnisheed.

Because banks and employers are not obligated to give out such information, a plaintiff might need to seek "post-judgment discovery." That requires the other party to disclose their financial information, either through a deposition before a court reporter or in a document.

There is no guarantee a plaintiff will collect from a shady defendant well-versed in dodging court judgments, but "the chances of collecting are much better if you involve an attorney," said Kilpatrick Stockton lawyer Brian Epps, who specializes in commercial litigation.

Using an expert also protects a plaintiff from becoming overzealous in the collection process and violating a debtor's rights.

"I think the system we have is about the best you can have," Mr. Epps said. "It gives you the right to pursue someone, but at every turn it demands that you be cautious about what you do."

THE SYSTEM WORKS BEST when solving honest disagreements, not cases where one party has been deliberately cheated. A judgment might be worthless if the defendant skips town or is unemployed or penniless.

Therefore, the best policy for consumers is to be careful of whom they choose to do business with, particularly when spending big bucks on auto and home repairs.

In addition to asking for customer references, consumers should ask contractors to show proof of their business license, workers compensation insurance and their performance bond, a type of insurance that pays to complete a job the contractor botches or is unable to finish.

"If you're doing business with a nonbonded company, you're doing it at your own risk," Mr. Smith said.

Long-term retail service contracts also deserve special consumer scrutiny.

"We see people all the time complaining about some charges they didn't know about. The truth is the stuff is in the contract," said Roy Everingham, the president of the Augusta area Better Business Bureau.

If a dispute does arise, the consumer should make every attempt to settle it out of court. The Better Business Bureau, for example, offers consumers free mediation services for disputes involving its members.

Small claims courts always urge parties to settle out of court to cut down on the caseload burden. But they also do it to help the plaintiffs collect at least part of the damages they seek.

"With a judgment, there's no guarantee you'll collect a nickel unless you get it in your hand," Mr. Padgett said. "A lot of times people will walk away from a negotiated settlement to prove 100 percent of the damages and get zero money."

SMALL CLAIMS COURT

What you should know before going into court:

  • Filing a case: Disputes must involve less than $15,000 to be filed in Georgia and less than $7,500 in South Carolina. Expect to pay about $40 to file, slightly more if county officers serve the paperwork.

  • The court is not your friend: Employees and judges who work in small claims courts can help fill out forms but can't offer advice.

  • Evidence is crucial: Have photos, contracts, receipts or other documents to back up cases. Any eyewitnesses or experts must show up to testify.

  • Just the facts: A judge is interested only in the facts surrounding the dispute.

  • Be organized: Keep evidence in files to avoid digging through stacks of paperwork. Bring an assistant if necessary.

  • Stay on track: It's common to be interrupted by a judge. Have a bullet point list of things to address to avoid leaving anything out.

  • Hired guns: Small claims court litigants can be represented by attorneys, so don't be surprised if the person you sue gets representation. If your case involves several thousand dollars in damages, it might be worth paying an attorney to help you prepare.

  • Winning isn't everything: You don't automatically get your money if you win the case. You must collect it from the losing party. If they don't pay, you'll need to resort to legal documents such as liens and garnishees. It may take years to collect.
  • - Staff research

    Reach Damon Cline at (706) 823-3486 or damon.cline@augustachronicle.com.



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