QUESTION: I have been sued by my landscaper in small claims court because I refused to pay his bill for services. He ruined my flower garden and 'butchered' my front hedges so I don't feel he deserves anything. He should pay me for the cost of my new plantings and the cost of having another landscaper fix his mistakes. He has hired a lawyer to represent him. Do I need a lawyer for my defense in this case? Won't it cost more for the lawyer than it would to just pay him his bill?

ANSWER: Your decision will most likely be determined by practicality versus principal. You will need to decide at what cost is it worth to fight this injustice. You do not need to hire a lawyer for your defense. You can go into court and explain your side of this case to the judge or clerk/magistrate (the fact finder). The fact finder will determine who should prevail based on testimony and other documentary evidence. If you decide to go to court bring photographs of your lawn and/or a recent bill showing your costs of repair.
You can also hire an attorney to represent you in this matter. Your attorney would most likely present a counterclaim against the landscaper for (1) damages to your property, (2) violations of the consumer protection law for unfair and/or deceptive business practices, (3) damages for filing a frivolous claim in bad faith and (4) costs and attorneys fees for (2) and (3).
You may also decide to either: (a) pay the amount, (b) offer a reasonable settlement amount; or (c) try to get the landscaper to drop the case by informing him of your intention to counter-sue. Many people decided different actions depending upon their budgets, emotions, and availability. It is important to know the court, generally, does not reimburse parties for lost work because of a court appearance. Therefore, you must consider if the cost is worth the benefit.

QUESTION: Two months ago, I bought a pre-owned car from a local car dealer. I purchased a special added warranty to cover repairs and unexpected expenses. The car kept stalling and I brought it back to the dealership to have them fix the problem. I had to leave the car with them and they kept it for over a week. They did not give me a loaner car and when I picked up the car I had to pay a bill for $123.00 to cover the cost of parts that they said was not covered under my warranty. What is the 'lemon law' for used cars and warranty packages? Do I have a case?

ANSWER: In my experience, dealing with car dealerships is the most difficult area in trying to get a reasonable resolution to a repair dispute. I am sure there are many reputable car dealership owners who would be most compliant in resolving customer disputes. I hope to find one of these dealerships someday. Give your dealership the opportunity to rectify (or offer a reasonable settlement to) the situation. If you have a problem with the service department, discuss the over-billing with the manager and not the mechanic. If you do not get satisfaction from the service department I would suggest sending a letter to the owner describing your dissatisfaction regarding the additional charges that you expected to be covered under the extended warranty.
The state lemon law requires that a used vehicle under warranty must be repaired within 10 days or the customer's purchase price must be refunded (less reasonable wear and tear). The lemon laws also requires that if the dealership fails to repair the problem after the vehicle has been in for the same problem three times, the consumer is entitled to a refund of the purchase price, less reasonable wear and tear.
If your receive no satisfaction from the dealership, and your damages are less than $2,000.00, file a small claims action against the dealership, including the name of the owner, for violations of Chapter 90 Section 7 ¼ (the used car lemon law), Chapter 93A Section 9 (the consumer protection law), breach of contract and breach of warranty. You can also claim violations of the Attorney General Regulations 940 CMR 5:05 (repairs and service); 940 CMR 3:08 (repairs under warranties); and 940 CMR 3:16 (violations of public safety and protection laws). If your damages are over $ 2,000 or the price paid for the car, you should file a civil action. If you retain a lawyer for either small claims or district court and the court rules in your favor for a violation of Chapter 93A, you will receive an award of reasonable attorney's fees in addition to your actual damages. If the court determines that the dealers business acts or practices were willing and knowing, then the court may award up to triple (treble) damages plus your attorneys fees.

QUESTION: Several years ago I signed up for a membership in a vacation club through my credit card. I cancelled the membership but they continued to charge my credit card a fee twice a year. Every time I call the customer service number, a person tells me my account will be credited and my membership cancelled; but six months later, I am billed again and no credit is applied to my account. Do I have a case against either the credit card company or the vacation club?

ANSWER:It is important to keep a record of all the events of this matter. If you can show the company (or the judge) documentation of all your attempts to resolve the issue, including names of the persons you spoke with what they said, your cancellation letters, written communications, bills, invoices, receipts and the original advertisement or promotional offer; your case will be much stronger and have a great advantage over the other party.
It is always best to try to work out your dispute directly with the company. It is easier and much faster. It is most important to contact the person whom has the authorization to do what you are requesting. Sometimes it is not easy getting through to this person. Many companies have consumer service representatives who specifically handle problems such as yours. A great resource tool that I frequently use is the Consumer Handbook, available at a minimal cost between $ 1.00 and $ 3.00 published by the Federal Consumer Division. This book lists all major companies, corporations and businesses, their corporate addresses (not P.O. Boxes!), their presidents, vice presidents, CEO's, CFO's and consumer representatives.
If your telephone calls are unsuccessful, you will certainly receive a response from a certified letter you send to the president of the credit card company and/or the CFO of the vacation club! In all your communication with the companies make sure you ask for the specific relief you are looking for and your intensions if they do not comply. For example; "Please send me a refund check in the amount of $$$ with a confirmation letter insuring the cancellation of my membership or I will have no choice but to file a small claims action against both companies requesting triple damages under our state consumer protection law."
If you do not have any records of the transaction, (as most people don't until a costly situation happens to them), take a moment and write a ledger or diary listing dates and all events to the best of you memory. If you have to go to small claims court, the judge or clerk/magistrate will hear your side of the case and rely on your oral testimony (instead of documentary evidence). Make sure you bring an outline of the events to refer to so you can clearly and concisely explain your position.

QUESTION: : Recently I purchased several product items through the Internet. A friend of mine said that I have no guarantee or legal protection for my purchases. Do the Consumer Protection laws cover my Internet purchases?

ANSWER: : It depends on what you purchased and where the company is located. The law does not move as quickly as the Internet. Recent cases are still being tried. Presently it is difficult to determine liability because of the origination of a product sale. Most lawsuits involving the Internet rely on past case law that is similar in situation and circumstance. A simple Internet purchase of a product manufactured, sold, and distributed within this state with a (downloaded and printed) warranty, could be assimilated to the same situation as a product being covered under the consumer protection statute (M.G.L. Chapter 93A). On the flip side, an Internet purchase can be so complicated that the litigation and legal research involved would cost more than the purchased product. For example, if a consumer in Massachusetts purchases a gadget from a company based in Canada, with a MasterCard from a bank in Delaware, and the product is manufactured in Taiwan and packaged in Hong Kong, delivered by an international mailing house, who is liable if the consumer receives the gadget broken in the box? I always prefer to purchase items (especially expensive products), at a retail store, close by, that has been in business for many years. With the Internet, you take your chances until the law catches up to protect your purchases

QUESTION: My fourteen-year-old son has a newspaper route. Most of his customers are good at paying him. There is one man that owes him over $16.00 and has cancelled his newspaper delivery. My son has asked this person for the money but the man tells him he's not getting the paper anymore and to stop bothering him. Can a fourteen year old sue this 'deadbeat' in small claims?

:ANSWER: Absolutely. You or his legal representative will need to file the complaint on his behalf. It is a great way to teach judicial education to your son. Most people are very unfamiliar with a courtroom (outside of what they see on television). Your son will have the chance to speak before a Judge or Clerk-Magistrate and will be able to participate in an 'informal' judicial forum. In my opinion, the courts will favor any minor that has been 'damaged' by an adult. The legal perception of the courts (and society) is that an adult should not take advantage of a minor; therefore, the courts protect minors in business transactions and situations. I would assume your neighbor would be embarrassed in a courtroom trying to explain why he has not paid a 14-year-old boy his money! My guess is that your neighbor would pay the past due bill when he received notice of the small claims court date. If this happens, make sure you ask for the filing fee ($ 16.00 or $19.00) plus lost interest and any other costs associated with having to collect your son's money. Whether the neighbor offers a settlement or you end up in front of a judge, your son will benefit (in educational and/or in reimbursement) by experiencing the judicial process first hand. There is never a guarantee that your son will prevail, however, I would say no matter what the outcome, your gains court experience and knowledge of the 'legal system'. Good Luck!

QUESTION: I purchased a restaurant gift certificate for my friend's birthday. About a year later I asked my friend if he enjoyed the restaurant. He said the gift certificate expired after 6 months and he was too late in using it. What is the law regarding expired gift certificates?

ANSWER: A gift certificate falls under the consumer protection act because it is a purchase of goods or services. Many merchants (and restaurants) print an expiration date on their certificates, hoping the recipient will use the certificate as soon as possible. Recent case law has determined that a gift certificate must be honored at presentment, period. No time limits have legally been established. If a restaurant or merchant goes out of business then you may have no recourse to obtain a refund. In my own personal experience I have received restaurant gift certificates, beauty salon gift certificates and store merchandise gift certificates that I kept beyond the 'expiration date'. In every case, the merchant was more than happy to extend or reissue a new certificate to me after I wrote to the owner and explained my certificate had expired. I would suggest you (or your friend) contact the restaurant and ask them to either honor the gift certificate upon your arrival or issue a new one. I am sure the certificate will be honored because most all merchants want to present good will and increase their customer business. They usually welcome new customers in hopes they will become regular customers.

Question: I purchased a new coffee maker from a 'discount salvage store' store. After three months the coffee maker doesn't keep the coffee hot. I tried to bring it back to the store but they said they couldn't take it back because I was past the store's 30-day return policy. Because it's a $20.00 item, is it worth it to pursue this matter any further or should I just take the loss?

ANSWER: : : Most products are covered by a 'general' warranty of merchantability. This warranty is applied to all products for sale in the stream of commerce unless there is an express disclosure or express limitation that is clear and conspicuous at the time of purchase. The warranty of merchantability guarantees the product to perform its original purpose for a reasonable time with proper use. In your case, the 30-day warranty would prevail provided the stores return policy was clear and conspicuous at the time you purchased the coffee maker. Past case law has defined specifications for what is considered clear and conspicuous. Posters or signs near check out register terminals, printed return policies on the original sales receipt, and salespersons stating the return policy at the time of sale have been considered clear and conspicuous. General business practices may also determine the fairness of a policy. Consumers that purchase items at auction, yard sales, and 'clearing discount stores' can expect to receive a product at a price much lower than retail. These items may be last years model, slightly damaged, expired, or products that just did sell that well. The general business practice for these 'clearance' items is based on an AS IS purchase. Many discount retail stores, such as the store you purchased your coffee maker, may offer an additional return policy to their customers in which they will warrant your purchase for a certain amount of days. The merchant can determine whatever return policy of choice. The general rule is the merchant must inform the consumer of this policy so the consumer will have an opportunity to choose whether or not to purchase the product from the merchant or another competitor. As in most legal matters the case is determined by what is reasonable and what should a consumer reasonably expect. If you purchased coffee maker in an expensive 'fifth avenue' store, you could expect to be able to return the item even after three months. However, you could also expect to pay up to three times as much. Laurie Grant is a consumer advocate and practicing attorney with offices in Duxbury and Plymouth, Massachusetts. Please send your consumer questions this newspaper. Attorney Grant will try to respond to all consumer questions and some questions may be published in "Consumer Corner." All written correspondence will become the property of this newspaper and its affiliates for publication.

Question: I want to take a paving contractor to small claims court because he refused to fix the holes in my driveway caused by his terrible work. I live on the South Shore but he is from the Boston area. Can I take him to the courthouse that's in my area or do I need to sue him in a court in his area?

ANSWER: : Your question is one of jurisdiction. Jurisdiction is where a person (or legal entity) has sufficient minimum contacts; resides; has a usual place of business; or is domiciled. Most jurisdictional issues involve two different states. In your case, the contractor lives in Massachusetts so you can bring you claim in the courthouse closest to you. You will need to check on the courthouse that handles small claims cases from your town. The selection of which courthouse involves venue. For example, Plymouth County has four district courts (Hingham, Plymouth, Wareham and Brockton.) that cover small claims in their surrounding towns. The type of claim you have determines subject matter jurisdiction. For example: divorce cases, wills, and equitable matters are heard in the Probate and Family Court; civil actions over $2,000 are heard in District Court, civil actions up to $ 2,000 are heard in Small Claims court and claims against the state or municipalities are heard in Superior Court. An interesting (and confusing) county division is with the town of Cohasset. Although Cohasset is surrounded by towns in Plymouth County, (Scituate, Hingham, and Norwell), it lies in Norfolk County and the courthouse covering Cohasset cases is in Dedham. I discovered through research that early settlers from England had named the New England counties and towns consistent with those in England. In England, the town of Cohasset is in Norfolk County, and next to the town of Dedham!

Question:I bought a used car (1992 Chevrolet) from a private party for less than $1,000.00. After only six weeks all the oil leaked out of the engine and the engine seized. It's going to cost $850.00 to install a rebuilt engine. I know there are lemon laws for buying cars. Do I have a case against the I bought the car from? Do I have a case against the manufacturer?

ANSWER: The state has 'lemon laws' for new motor vehicles and used motor vehicles (M.G.L. Chapter 90 Section 7N1/4,). Only in cases involving new vehicles can you sue the manufacturer. Once a vehicle has been transferred or sold to another party, the original warranty is no longer valid. In addition, if you substantially change or modify a new vehicle, the manufacturer will not be responsible for the changes or modifications.
Used vehicles fall under two categories implied warranties and express warranties. The implied warranty for used vehicle is usually for 30 days. This means the buyer can expect the 'product' to fit for the intended particular purpose for which it is intended. The express warranty for used vehicle is any written (and sometimes oral) representations that exceed the statutory 30-day period. For example, some car dealerships may offer a special 90-day 'express' warranty for parts and services; or they may include a mileage limit (90 days or 5,000 miles whichever comes first.)
In your case, you purchased the car from a private party so the 30-day statute applies. Since the engine problem happened after the 30-day period you have no legal recourse against the private party unless that private party offered you an express warranty that would cover the engine problem. Your case is a perfect example of basic common law that preceded the consumer protection statutes known as "Caveat Emptor" Let the buyer beware.

Laurie Grant is a consumer advocate and practicing attorney with offices in Duxbury and Plymouth, Massachusetts. Please send your consumer questions this website. Attorney Grant will try to respond to all consumer questions and some questions may be published in "Consumer Corner." All written correspondence will become the property of this website and its affiliates for publication.