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Sam
Sam, Attorney at Law
Category: Legal
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Experience:  More than 20 years of experience practicing law.
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I had a lounge chair seat re-upholstered. The work order

Customer Question

I had a lounge chair seat re-upholstered. The work order sheet required that the base of the seat should be made out of plywood with webbing to make it comfortable. However, the upholsterer decided to make the seat (without notifying me) out of plywood only.
Also, the right hand chair arm was damaged by a glider nail of another customers chair that they stacked on top of mine and will not take responsibility. The arm is unsightly and damaged beyond repair. I do not want the chair back anymore and I offered it to them to sell it in their sales room for free and keep all the money.
In spite of this gesture, they do not want to give me my $250.00 deposit back claiming that the chair arrived damaged, which is not true.
The receipt contains no fine print, and I did not sign any repair orders. Do I have a leg to stand on? Should I take it to small claims court?
Submitted: 1 year ago.
Category: Legal
Expert:  Sam replied 1 year ago.

Hello

This is Samuel and I will discuss this and provide you information in this regard.

Yes, I suggest it appears you have a claim. And I suggest that you first write them a letter explaining in detail the problem and that if your deposit is not returned you will bring the matter to small claims and also request they pay your fees and other costs associated with the suit be paid by them, since they are unwilling to settle this out of court.

Mail that letter certified with a Return Receipt Requested. That way you can show the court, you tried to settle this without court intervention but you are only there because they would not settle.

Customer: replied 1 year ago.
Aloha Sam,Thank you for your quick response.They pointed out to me that their work order receipt states that: All furniture sold as is. All Sales are Final.
This was not a sale of furniture, but a repair and it also does not change the fact that they damaged my chair.I did not sign anything and I think they are just trying to intimidate me. Am I still good for a claim?
Expert:  Sam replied 1 year ago.

I suggest that you are correct. You did not make a purchase, but rather a work order, which was not followed as agreed to and as you noted, then they damaged your chair while in their possession. I suggest yes, you would still have case.

They are correct, however, that on purchases marked "final sale"and.or "as is" they would not need to give a refund, etc.

But this is not a purchase but instead a work order. And if you have any photos of the chair before you brought it to them showing no damage to the chair, that will be helpful.

But nonetheless, they did not repair the chair with the weaving but only the ply wood. And that is a breach of the agreement.

Expert:  Sam replied 1 year ago.

When you file the lawsuit, I suggest you make it clear that this is not a Purchase. But it is a breach of the agreement for repairs to a chair you already owned.

And you should make that clear in your demand letter,too.

Customer: replied 1 year ago.
Sam, I since found out that the guy I am having the problem with, is the manager and not the owner. I plan to send the owner a copy of the letter as well as soon as I can find their info. If I do not have credit with you anymore, I will understand. Also, I had a picture of the chair that was posted on Craig's List. Unfortunately I can not find it. Should I mention it anyway to call their bluff? Please see my response to him below.Aloha Chip,Please consider the following points to settle this matter out of court:The disclaimer "All furniture sold as is. All sales are final" pertains to furniture being sold. Not services being rendered on a chair that I already owned.The conversation between you and your partner as to what condition the chair was is all and hearsay. I have a Craig's List photo that proofs otherwise.Last but not least, your decision to change the repair order was a breach of the agreement.Please issue a refund check within the next ten days.Please respont. Thank you. Zac
Expert:  Sam replied 1 year ago.

Thank you.

I do not suggest that you state you have a photo, if you don't.

I suggest that you can refer to the Hawaii Statute about final sales, etc. Here is the LINK to that statute

Here is what i suggest you can state in your letter, if you have not already sent it.

Expert:  Sam replied 1 year ago.

Dear NAME OF OWNER

On whatever day I entered into an Agreement with your manager that my chaise would be repaired. In the agreement it specifically states that there would be "weaving" and the "plywood". I requested the weaving for more comfort. However, the chair was not repaired as agreed. Your employee did not weave the chair as agreed. It was only repaired with plywood.

I have discussed this with your manager and was told that there are no refunds because you have a policy of "all SALES final" and "SOLD as is". This policy would not refer to me because I never made a purchase. We are discussing a contracted repair, which your employee has breached.

Under Hawaii Statute, the law is clear Section 481B-5.5: Returns for refunds, merchandise credits, and exchanges it specifies "purchaser" and it states:

"Purchaser" means a natural person who is returning goods that were purchased or received primarily for personal, family, or household purposes.

In this regard, I am requesting a full refund as the Repair work was not done as agreed.

If I do not get a refund within 10 days from receipt of this letter, I will have no other option but to file a small claims lawsuit. And I will request the court also Order you to pay all my legal fees and costs associated with that filing as the reason we are in court is due to your inability to settle.

Expert:  Sam replied 1 year ago.

Before the last paragraph, you can also add

In addition to the breach of contract for the repairs, my property was damaged while in your possession and I am taken aback that your employee would state that I delivered the chair with damage. It was not damaged when delivered.

And if you want to add that they can keep the chair and you are only seeking the refund, you can do that. And you should state what that Refund amount is, of course.

Customer: replied 9 months ago.
Aloha Sam,Remember me? Well I am still having the problem with the upholstery store. I was unable to respond because the Reply Box did not show. I assume that I have to pay again, even though it is the same case, because it has been more than 90 days?Anyhow, I wrote to the BBB in Hawaii but have no idea if anything will come of it. The manager at the upholstery store is real stubborn and will not refund my $250.00. Please see the attached file of his response to a letter that I have forwarded to the BBB. I try to sound tough and ready to fight in my responses to them, but the truth is that I do not have money to take them to court. Please look at my responses in the attached letter and see if there is something else we could add to motivate them to write me a refund check.Hope to hear from you soon.
Expert:  Sam replied 9 months ago.

Aloha

Yes. I remember this matter. Let me review this matter.

Expert:  Sam replied 9 months ago.

Ok. I have looked at the responses to the BBB. First, please note the BBB will not do anything more at this time but to place a mark against this merchant as a customer complaint has been filed.

As I recall, I provided you information on how to file a small claims lawsuit on your own. I will again provide you that information. If you file on your own, you do not need to have an attorney or incur those fees. As I recall you wrote the letter making the demand for the refund and you mailed that. Correct?

Expert:  Sam replied 9 months ago.

Here is the LINK for the Small claims information and in that link is this LINK which has the forms for you to file the lawsuit.

Expert:  Sam replied 9 months ago.

The current filing fee is $35, and the case will be scheduled within 30 days. Cases must be filed in person at the District Court Legal Documents Branch. To find the location of the District Court on your island, go to the Contact Us section and click on the island or circuit where you intend to file the complaint.

Expert:  Sam replied 9 months ago.

I don't recall if I originally mentioned that you can also file a consumer complaint with the Attorney General OAHU:(###) ###-####Toll-free: 1-***-***-****

Expert:  Sam replied 9 months ago.

Tell them you would like to file a complaint against a merchant for consumer fraud. Now, the AG may not find that there is fraud but if they do, they will try to assist with a mediation to get your refund. However, in most instances, the small claims court is the way to go.

As a side bar note: the Professionals on this site are not privy to how finances are handled. I suggest if your click this LINK, you can chat or email a moderator who can discuss how the deposits work, etc.

Customer: replied 9 months ago.
Aloha Sam,Thank you for your super fast response. Yes, I wrote the letter to their head office in Seattle making the demand for the refund and that they would be liable for the expenses. However, it was returned unopened stating "Insufficient Address" which is funny because it was listed on their website. Instead I emailed a copy of the letter to both email addresses I have. The manager of the store mentioned in their response letter to the BBB that they received it, but maybe I should drop off a letter in person at their local store as well, or would a registered letter be better?Thank you for the links. It makes it so easy. I am very surprised to see that the court fee is only $35.00. I can do that.Thank you for helping me Sam. I will definitely call on you again.
Expert:  Sam replied 9 months ago.

You can drop off the letter, if you want. You would then want to get a receipt showing they got it or have a witness with you who can testify they got the letter hand delivered.

Yes. Some counties have higher and others have lower filing fees. Small claims tries to remain "consumer friendly" so that money is not spent on attorneys when one is simply trying to to get money refunded.

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