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Andrea, Esq.
Andrea, Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 11794
Experience:  25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
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I purchased and paid $5,800 for furniture that I did not receive.

Customer Question

I purchased and paid $5,800 for furniture that I did not receive. The same person that I purchased the furniture from, later claimed that I owed her $3,000 for her designer services. She contacted the furniture manufacturer and would not allow them to release my already paid in full furniture for shipment to me, until she received her allegedly owed $3,000. The manufacturer's hands were tied because the furniture was purchased under the designers name, and therefore they could not release it to me.

I filed a case in Small Claims Court in North Carolina stating that I had paid $5,800 for furniture I did not receive, and that I owed her $3,000 and requested a refund of the difference of $2,800. The Judge said that I was mixing two separate issues, one for goods and one for services and that I needed to have filed my claim separate and that I needed to file it again in a higher district court for my $5,800, because $5,000 was the max he could award, and if the Designer felt she was due money, that she could file her own claim in Small Claims Court. The Judgement in Action to Recover Money of Personal Property paperwork that I received had checked under the Findings Heading, that the court finds the plaintiff failed to prove the case by the greater weight of evidence... and checked under the Order Heading, that the plaintiff recover nothing of the defendants and that this action be dismissed with prejudice.

I did not appeal to a higher court within the required 10 days allowed, because I would need to hire a lawyer for that court. I decided that I would separate and re-file my case again in smalls claims court and lower my asking dollar amount to the maximum allowed amount of $5,000 for a refund for non receipt of furniture.

I appeared in Smalls Claims Court and I had a different Judge. The Defendant told the Judge that this case had already been heard and dismissed with prejudice and it could not be reheard. This Judge was highly upset and felt that I should have been awarded the $5,000 and that the previous Judge was in error and should not have checked the box under the Order Heading that it be dismissed with prejudice, but she had to dismiss my case without ruling on it.

She told me to get an Attorney because she could not hear this case and if I appealed it, it might not matter because it had already been previously dismissed w/prejudice, meaning it could never be heard again.

My question is..... If a Judgement of dismissed with prejudice is rendered in Small Claims Court, can I file to a higher court, or is it now and forever barred from ever being heard again in any level of Court ever?
Will I never be able to get my furniture or a refund of my money through the court system, or will this Designer legally now be allowed to be a thief and take my money and keep my furniture?
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Andrea, Esq. replied 1 year ago.

Hi, and Welcome to JustAnswer, My name isXXXXX am a licensed, practicing Attorney and would like to help,

 

 

I am sorry to hear of your situation and I have to say that this happens more often than you know because in many States, the Judges who sit in Small Claims Court are not Attorneys, they do not know the law, are sitting on the bench because of who they know, and they weren't paying much attention when they were sent for a few weeks of training after election. Before I got to the part where you refilled, I, too, was wondering why the first Judge did not award you the jusrisditional maximum of $5,000 and why your action was dismissed with prejudice. The first Judge should have either awarded you $5,000 or dismissed without prejudice.

 

Unless an Appeal is taken on a decision in Small Claims Court, that decision remains and is Res Judicata in any other Court, meaning that the defense an be raised that it has already been litigated, decided, and not appealed and cannot be relitigated.

 

However, you do have a way out. File a Motion to Vacate Judgment and/or Reconsideration based on Mistake in Law. If it comes before a different Judge, you can argue your original case and say you want to amend your Complaint to reflect a demand of $5,000, the jurisdictional maximum and you will get a rehearing. If it comes before the same Judge who decided the case and he denies your Motion, you will have the opportunity to Appeal that decision, provided you file your Appeal within the required Appeal period of time. So, either way, you will be okay, I promise you.

 

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Customer: replied 1 year ago.

Thank you Andrea.


 


Am I understanding you correctly that I should file a Motion to Vacate Judgment and/or Reconsideration based on Mistake in Law in Small Claims Court? Or do you feel like I should file that Motion in District Court with a real Judge and not have to deal with a Magistrate again as in Small Claims Court?


 


And what would the Mistake in Law be, if I am asked?

Customer: replied 1 year ago.

Also I have 10 days to appeal this recent finding from small claims court to District Court. Do I need to file the appeal and the motion to vacate judgement simultaneously?

Expert:  Andrea, Esq. replied 1 year ago.

1. This would have to be filed in the same Court in which the judgment was entered (Small Claims Court). The mistake is that the Judge did not know, or was not aware that he could give a litigant a choice, either ask the Plaintiff if they would agree to a judgment for less than they were demanding because that amount exceeded the Court's jurisdictional limit, or dismiss the Plaintiff's Complaint without prejudice. Actually, the title of your pleading can leave out "of Law" and just say "....based on Mistake", that way if there are other mistakes on which he can grant your Motion, you will not be limiting yourself.

 

2. The Motion and the Appeal are not related and do not have to be filed simultaneously, however, I would file them together just to get it over with. You can always withdraw the Appeal if you get a rehearing, favorable judgment and you will accept $5,000.

 

___________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

Customer: replied 1 year ago.

Should I hire an attorney for this? I will have to appear in District Court if I file an appeal from the last court appearance and I will have to pay $180 to file that appeal.


I would imagine that I will have to download a form to file a motion to vacate judgement in Small Claims Court, and pay a filing fee for it as well. But it is my understanding that any appeal or motion is bumped to the higher district court.


So if I must remain in small claims court to vacate judgement and appeal and subsequently appear in district court, how is that all handled?


This court system seems to enjoy taking my money, as I have already spent $130 twice filing my two claims in small claims court, to no avail.

Expert:  Andrea, Esq. replied 1 year ago.

1. You must file the Motion to Vacate in the same Court in which it was entered which is Small Claims Court. You are not filing your Appeal in Small Claims Court;

 

2. Whether or not to hire an attorney is a decision only you can make. When you are dealing with that much money, sometimes it is wise to have an attorney because they can save you money in the long run. For example, if you had an attorney, they would have advised you that the jurisdictional limit of the Small Claims Court was $5,000 and probably would not have filed there. But, in any Court the attorney would have filed, they would have requested an award of Attorney's fees.

 

3. I do not know if you will find something as specific as the Motion to Vacate for Small Claims Court. You might have to look for a similar form for a higher Court and tailor it to suit your needs, if you choose to do it yourself.

 

4. With reference to the costs imposed by the Court, I have to agree with you because there are many times I go to file pleadings in various Courts and have always seen a lot of superfluous people doing nothing there. If they cut all the extra personnel, they could probably reduce filing fees by one-half,

 

 

__________________________________________________________________

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

Customer: replied 1 year ago.

Thank you so much.


I have one last question..... If I hire an Attorney, will the Attorney fees be allocated out of my maximum $5,000 awarded amount, or will their fees be awarded in addition to the $5,000?

Expert:  Andrea, Esq. replied 1 year ago.

As a general rule, the jurisdictional amount measures only the damages a Plaintiff is seeking and does not add in Attorney's fees, interest, Court costs, and other fees. Those are treated separately so that a Plaintiff may recover the full $5,000 plus all additional amounts which are not part of subject of the case,

 

___________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

 

 

Andrea, Esq., Lawyer
Satisfied Customers: 11794
Experience: 25 yrs. of experience in employment law, real estate and business law, family law, criminal defense and immigration.
Andrea, Esq. and 2 other Consumer Protection Law Specialists are ready to help you
Customer: replied 1 year ago.

I just posted another question, I tried to post it directly to you, but it went on the main question site and I tried to cancel it to be able to ask you directly. Please go to the main site and see if you can answer it. Im asking about the furniture manufacturer's rights this time. Thank you

Expert:  Andrea, Esq. replied 1 year ago.

I would be glad to and I will go there right now. If someone else responds simply say that your question was intended for "Andrea". In the future, you can request me by typing my name at the beginning of your question, like this,

 

 

"For Andrea only .......... "

 

 

Thank you,

 

 

ANDREA

 

 

Expert:  Andrea, Esq. replied 1 year ago.

Hi, again,

 

I saw the question you posted, but since it did not have my name ("For Andrea only.......... "), another expert is permitted to Answer. I believe I may have a solution to your situation,

 

With respect to the manufacturer, I noticed that you said in one of your replies on the other question page, that he is on your side which is great. Although you have o direct contract with the manufacturer and ordinarily would not be able to sue him because there would be no "Privity of Contract" with him, there is a legal principle in the Law of Cotracts called "Third Party Beneficiary", i.e., the contract between 2 parties was made for the benefit of a third party. Here, the contract between the designer and the manufacturer is made for your benefit.

 

What you should do is contact the manufacturer again and ask him to send you the invoice showing you and your address as the person to "Ship to" either by fax, or email and anything else he has with your name on it. After you receive them, call the manufacturer and tell him you are going to try to get a Court Order, Ordering him to ship the furniture to you. This way, he will not jeopardize his business relationship with the designer and you will have your furniture. The manufacturer will have no choice, but to obey the Court Order and ship the furniture to you.

 

You will then go to Small Claims Court, and sue the manufacturer as a "Third Party Beneficiary" for delivery of your merchandise. The Court will have jurisdiction over the manufacturer because he is doing business in your State and he will have to comply with the Court Order. The manufacturer does not have to appear in Court; you can get a default judgment against him and the Court will issue an Order directing him to deliver the furniture to you, thereby bypassing anything the designer has told him and everyone, except the designer will be happy,

 

_________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

Customer: replied 1 year ago.

What a wonderful strategy. Unfortunately, my name does not appear on any documentation to the manufacturer. The purchase order states the designer's business name and my home address as the ship to address.


The manufacturer did later become aware of my name, and that the furniture was ordered for me, and we corresponded via email. So there is acknowledgement that it is my order, but it was purchased under the designer's business and the manufacturer can not ship it to me.


 

Expert:  Andrea, Esq. replied 1 year ago.
Yes, it's a great strategy

It does not matter that your name does not appear on it. It is sufficient that your address is the delivery address and that address is yours. You also have proof that you paid for everything. You only have to show this to the Court, and bring with you several letters which you recently received to prove that your name is XXXXX XXXXX that address. The manufacturer should not be concerned because he must follow the Court Order which, of course, overrides anything the decorator may have told the manufacturer to do. You will get your furniture and there will not be anything the deorator can do about it.

Let me add somethig, in case you are not aware of it. The decorator not only gets paid by you, but she makes an additional amount because manufacturers give decorators discounts on every order as an inducement to continue to order from them. That is why the decorator tells the customer to pay the decorator. The decorator will then deposit the customer's check and then will write a check out payable to the manufacturer only for the discounted amount. So, the decorator is being paid from both ends. She received a lot more than you think she did,

______________________________________________________________________


Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA



Customer: replied 1 year ago.

Yes ma'am, she lined her pockets but good. She charged me $5,800 and the manufacturer only charged her $2,915. So she most definitely has her money. The manufacturer has their money, this designer is just being spiteful and if I were the manufacturer, I would have kicked her to the curb and shipped that furniture after 90 days. Its been ready to ship since January 15, 2013.


 


I currently can not go back to small claims court until I hire an attorney and file of motion to over turn the judges initial ruling of dismissed w/prejudice without awarding me anything. I don't believe I can bring this back to court because it involves the same furniture.

Expert:  Andrea, Esq. replied 1 year ago.

On the contrary, you are suing the manufacturer. Your case against the decorator was dismissed. You are now suing a different party, the manufacturer, and going to Small Claims Court to get an Order, Ordering the manufacturer to deliver the furniture to you. The dismissal was as to the decorator, not to the subject matter of the case

 

_____________________________________________________________

 

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

Customer: replied 1 year ago.

Thank you Andrea so very much.


I have forwarded this information to the manufacturer and I am giving them the option to either notify the designer to pick up the furniture by a certain date, or the option of me having to sue them in court to get them to ship the furniture by a court order. I hope for my sake that they choose the first option.

Expert:  Andrea, Esq. replied 1 year ago.

I had told you to get the information you need from the manufacturer first, then tell him you are filing a lawsuit. If you tell him you are going to sue him, he may not want to give you the information. If you have already told him, speak to him again and say that you want to clear up any misunderstanding between you. Tell him this is a friendly suit, that are doing it this way so that:

 

1. The manufacturer will have to obey the Court Order or face Contempt of Court. Therefore, he can maintain his relationship with the decorator and she cannot accuse him of taking sides;

 

2. He will free up his warehouse by not having to store your furniture;

 

3. You paid for the furniture, he has received payment, the decorator has received payment. In fact, more than she should have gotten; you are the only one who has not received what you paid for.

 

Therefore, this is the only just result,

 

_________________________________________________________________

 

 

Please be kind enough to rate "Excellent Service" so that I receive credit

for assisting you,

 

 

Bonus and Positive Feedback on survey is very much appreciated,

 

 

 

Thank you for allowing me the opportunity to be of assistance,

 

 

ANDREA

 

 

Customer: replied 1 year ago.

Andrea,


 


I already have all the information that I needed from the manufacturer, i.e., the purchase order from the designer to the manufacturer, the numerous emails from the designer to the manufacturer telling them not to ship the furniture, the numerous emails between the manufacturer and myself discussing furniture finishes and shipping info etc...


 


I had all that documentation put in order when I initially presented my case in small claims court. Unfortunately the judge dismissed the case w/prejudice before I was even able to present any of my evidence, so I am well prepared if I do in fact have to go back into court.


 


I sent the manufacturer a friendly email simply stating that it is up to them if they want to notify the designer that her time is up for them to continue holding onto the furniture, and that if they are unwilling to confront her, then my only other recourse at this point is to sue them to get the furniture released and shipped to me via court order.


 


I expressed my non desire to enter into court again, but that the ball is now totally in their court. Hopefully the manufacturer will finally grow a set of b---s, and tell her to s--t or get off the pot, like I would have done after the initial 30 day time period had lapsed. I explained that they have the power to make that happen, or else they will be involved in the court case, because that is my only option at this point in time.


 


Now I will await their response. Thank you again for all your great advise!!!

Expert:  Andrea, Esq. replied 1 year ago.

You are very welcome,

 

I, too, hope that the manufacturer has enough sense to ship your furniture, rather than get involved with a Court case, and Yes, you are all set.

 

 

ANDREA

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