Tolling of the Statute of Limitations at Start of Injury
My question involves small claims court in the state of: Texas
Some 8 years ago, I entered into an open-ended barter agreement with an individual. I agreed to do taxidermy work in exchange for minor repairs on my classic car. By mutual agreement, there was no set time for completion on either of our parts, as we both had health problems and other concerns. I gave him partial payment in the form of another titled car for salvage purposes.
Understandably, the SOL has run out on the original agreement, but was renewed in Aug 2008. At that time, I let the defendent see that his work was completed, and he told me that the mechanical repairs were still not completed...that he 'would see to them.' I tried repeatedly to contact him after that- phoning (no answer), sending letters (half of them returned), sending another mechanic to retrieve the vehicle, etc. The vehicle had been stored behind a locked gate, inaccessable and hidden from view.
In Nov 2010, after some 26 months, I finally caught up with him at a store. I am assuming that the SOL had run out (unsure if the 2 or 4 year SOL applies here). At that time, he laughingly told me that he had disposed of the vehicle some 6-7 months prior to this meeting (approx. 20 months after out verbal renewal). I had to do some extensive searching before I found out that he had it towed, had pricey parts and the engine removed for his own use, and sold the rest for scrap (had it crushed!). At no time did he ever attempt to contact me or inform me of his intentions by certified letter (required by TxDOT), nor did he file any of the required DOT forms.
My question is, since I could not have reasonably discovered the injury prior to the SOL running out, doesn't the SOL restart (toll) at the time of actual injury-when he converted it for his own use? It was NOT a junk vehicle; it was registered, inspected and insured when he received it. I still hold the title.
He does not refute any of my accusations. His sole defense is that the SOL has expired. I believe he is wrong, as the injury to me should begin tolling at the time it occured.
Thanks for any info here.
Re: Tolling of the Statute of Limitations at Start of Injury
If you believe the statute of limitations has not run, sue him. He can raise the statute of limitations as a defense and, if he does so, the judge will make a ruling.
If you want the statute of limitations issues evaluated, I suggest discussing the case in detail with a lawyer in your state. These issues, as well as related issues of novation and tolling, can be tricky and can turn on small details.
Re: Tolling of the Statute of Limitations at Start of Injury
I have a witness to the renewal of our agreement. I have already filed suit; he has had his attorney send the answer letter stating the SOL has run.
We had had a side agreement to complete another piece of taxidermy work together, as he wanted to learn how it was done. When we spoke the last time, he said he wouldn't have the time, so I said I would do the piece myself and have it ready when the vehicle repairs were completed. I feel that this new oral contract, as well as the fact that he admitted that he hadn't done the initial work, but would do it now (as stated then) started a new agreement. I told him, "I want my Bronco back as soon as possible." He said, "I'll see to it." (Yes, I keep a daily journal) I finished the cosmetic work on his original mount, mounted the second piece and tried calling twice on the day after. I sent several letters (all but the first were returned) and called multiple times, sent another mechanic to the address. He avoided all contact, claiming in his letter that he no longer knew how to contact me (?). The defendant would not answer the phone, return calls or answer the door after I sent the first letter telling him of the completed work.
That looks like: the previous agreement WAS valid; we both agreed to the new terms; we both acknowledged that the old agreement had never been fulfilled (as he hadn't started the work to date): AND we both agreed to the terms of the new agreement in front of witnesses. I believe that fills the requirements of 'novation' for Texas law.
BTW, in his original answer letter, he states that the vehicle had been parked adjacent to his house in full view at all times. I have a satellite photo from the tax office that shows otherwise. He also made some outrageous claims in his answer statement, apparently before he had spoken with his attorney.
Re: Tolling of the Statute of Limitations at Start of Injury
Another quick question: Since this is Texas small claims, do I need to file anything to ask the judge to dismiss the affirmative defense claim of the SOL being run out? Or do I just ignore this and present all the evidence at the hearing? The injury could not have been discovered by any reasonable person at the time that it occured, and was committed by the defendent while the SOL was still running.
Thanks for your input, Mr. Knowitall!
Re: Tolling of the Statute of Limitations at Start of Injury
A contract has a 4 year SOL (in Texas). Depending on whether you "new" agreement in 2008 constitutes a new contract or merely affirmation of the original contract is one to be decided by the facts and the courts. It does appear it is likely you entered into a new contract in '08 though.
What I see is irrelevant of your contract though. He has converted your property for his own gain. In some cases, what he did would actually be considered to be criminal. Have you bothered to speak to the police about the issue?
Other than that, his conversion of your property for his gain would be a separate issue from your original contract. The sol on your rights would have started when he acted to convert your property to his gain. Since he states he acted a mere 6-7 months prior to your conversation in 2010, I do not see how any sol could have expired for you to take action at this time.
You will not be successful in making a motion to dismiss the sol claim. His claim of the sol means you will have to present evidence to defeat the claim. I do not know if you are required to file a response to his claim though. You seem to be familiar with court rules. That is where you would find direction on that action.
Re: Tolling of the Statute of Limitations at Start of Injury
Unless both parties agree to the facts in the case, a case can not be terminated by a motion to dismiss. The motion to dismiss is ONLY on the pleadings. The judge can not consider evidence. To get a dismissal based on evidence the party has to file a Motion for Summary Judgment.
Re: Tolling of the Statute of Limitations at Start of Injury
Thanks, jk!
The original demand letter that I sent read, "On or about Aug. 22, 2008, you drove up to our front gate. At that time, you asked if I still wanted my Bronco, and admitted that you hadn't completed any of the Bronco's repairs. Apparently from that date, you decided you no longer intended to make the repairs. You had the opportunity to view you deer head at that time. I told you that the cosmetic work would be completed immediately so that you could pick up the head. All finish work was completed within 24 hours.
At no time after that did you ever attempt to contact me. I tried reaching you at home several times, but either you were not there or declined to show yourself. I sent a potential buyer for the Bronco to speak with you, and he failed to find you on several occasions as well. The last time that I had contact with you was on or about Nov.2 of this year. At that time you informed me that you had disposed of my Bronco, claiming it 'had become a piece of junk'. You gave me a vague answer as to HOW it was disposed of and WHERE the Bronco was; you claimed the engine had seized up, a fender had fallen off and that a tree grew up through the body.
Further reasearch has disclosed that you removed/stripped valuable parts from the Bronco before disposing of it.
IN SUMMARY: Setting the time factor aside, you failed to provide the work agreed upon, accepted partial payment for work you did not perform, caused gross damage to occur to my Bronco by willful neglect, secreted it so that I could not access it, then disposed of said Bronco by illicit and disreputable means without due process. You were fully aware that it was NOT abandoned property, and that it had value as a vintage car. You did not comply with Texas law concerning disposal via a mechanic's lein by filing any claim or paperwork, nor did you inform me of disposal by certified mail as required by law. Since you decided not to do the repairs, you could have asked me to remove the Bronco from your property, and you could have had your mount back. The work on your red deer head was completed in full and has been waiting for you to pick it up.
I feel that a reasonable total amount for what you owe me is $9669.96 plus court costs, and I ask that you render with this amount within ten (10) days of the receipt of this letter. If you fail to pay this amount, or fail to contact me to provide a reasonable resolution, please be advised that I am prepared to exercise all legal rights against you and file suit.
Thank you for your prompt attention to this matter."
I went on to list the monetary claim with each point. Yes, I realize that some of the claim may be past the SOL and that I will be unlikely to get judgment on all. I have a witness who was present when the salvage company rep admitted that the defendent received a goodly amount of compensation for the vehicle as well as parts that he had removed for his own use.
The actual Statement of Claim that I filed on him reads,
" ...is indebted to him in the sum of ...$X, for failing to perform agreed-upon mechanic's work on my vintage 1971 Ford Bronco in exchange for taxidermy work (now completed); accepting partial payment for the mechanic's work ; causing gross damage through negligence to the Bronco, then disposing of my Bronco in the summer of 2010; failure to provide me with notification of disposal by means required bt the Texas Department of Motor Vehicles; not giving/sending me copies of any paperworkthat TxDMV should have on file."
I was told to fill out the small space on the claim in plain language without any 'legalese', and bring any supporting paperwork with me to the hearing. I have all that plus copies of phone records showing when I tried calling since our new agreement, plus the returned letters that were sent to his PO box, which he still uses. The letters were marked 'Return'.
Gad, this is such a headache.
I thought an oral contract in Texas was valid for only 2 years???
Thanks a million.
Re: Tolling of the Statute of Limitations at Start of Injury
Quote:
Quoting
whoopeerabbit
I thought an oral contract in Texas was valid for only 2 years???
.
I could be in error. I did not look to the official statutes but to one of the many sites I have found that are generally accurate, and a lot easier to read.
your claims, as I see them, boil down to this:
the value of the work you performed for him (which is likely beyond the sol) That would be this:
Quote:
$X, for failing to perform agreed-upon mechanic's work on my vintage 1971 Ford Bronco in exchange for taxidermy work (now completed)
due to the breach of contract, your damages would be the value of work performed for him.
Quote:
accepting partial payment for the mechanic's work ;
wasn't aware you had given him money but should be a valid claim. The only concern would be the sol.
Quote:
causing gross damage through negligence to the Bronco, then disposing of my Bronco in the summer of 2010; failure to provide me with notification of disposal by means required bt the Texas Department of Motor Vehicles; not giving/sending me copies of any paperworkthat TxDMV should have on file."
since the vehicle cannot be recovered, all of that boils down to: the value of the vehicle. The problem you might have is is the value to be determined by what is was worth when you turned it over to him or the value at the time of disposal. An argument can be made for either one.
Re: Tolling of the Statute of Limitations at Start of Injury
After looking at the law sites, I see the SOL on oral contracts appears to be 4 years. Guess you were right as usual!
The NADA Classic Car Book value for a 1971 Bronco in 'drivable' condition had a MINIMUM value of $7475 in 2010. My vehicle was in good shape, had been inspected just prior to the defendent's attempting the repairs, with the needed repairs mentioned in a notarized letter. It had A/C and 4WD (until the defendent damaged the drive train), both of which add to the total. I had to move some exotic animals under contract and the sanctuary required a full inspection before the animals could be loaded. We took photos that day, as there were tigers and barasinghas involved, both endangered species. The pix show my Bronco in good detail, and there is one photo of me standing in front of the petting zoo holding a Four-horned sheep lamb with the Bronc in the background. No doubt whatsoever about the car.
If I were to try to replace it with a comparable Bronc, it would more realistically run in the range of $10-12,000 or so.
This was essentially a unique car, as it was approx. 90% original with the original paint in 'Synergy Green'. If I have my stats right, there were only 812 Broncos sold in that model and color in 1971.
He received tangible compensation to the amount of approximately $1,500; I paid the taxes on his mount myself. The Comptroller's office is explicit on tax collection. AND I have included in the damages the cold storage fees that have accrued. He still owes me for the blackbuck mount that I mounted the day after we last spoke. I guess I will be filing to collect on that one after this hearing is settled, as I doubt he will voluntarily accept it.
In criminal law, would conversion of $5,000-plus vehicle be considered a misdemeanor or a felony? I'm assuming that a civil judgment would lend teeth to a criminal filing.
Lordy, I want this done and over. Thanks.
A question about answer to citation
I was perusing the Texas Rules of Civil Procedure, and came upon this in Section 5, Rule 99:
c. Notice. The citation shall include the following notice to the defendant: "You have been
sued. You may employ an attorney. If you or your attorney do not file a written answer with
the clerk who issued this citation by 10:00 a.m. on the Monday next following the expiration
of twenty days after you were served this citation and petition, a default judgment may be
taken against you."
The defendent's attorney sent me his answer with the main defense of SOL having run out. I just now noticed the last sentence in the above quote. His answer letter was sent more than 60 days AFTER he was served. Does this make any difference? Just a small point, I'm sure.
This answer letter arrived one day before the second hearing date was due. Date has been moved to the end of March because of a 'Judge's Emergency'. Defendent had the first date reset because of a death in his family.
Thanks again, all.