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Ask Our Lawyer - September 2008

A Time to Fight for Principle and Time to Feed Your Family

Remember the case involving Dan Benning and John Westren? They were on their way to a bike event in Northeast Ohio when the bikes they were riding down an exit ramp off of I-77 encountered fresh tar spilled from a passing truck. Unbelievably, they were not hurt as they and their bikes played ice hockey down the ramp. Being good citizens, they called the cops to report the incident and to advise of the hazardous nature of the road. Even though sympathetic with the bikers, the freshly minted state trooper called his supervisor as to what do. Unbelievably, the supervisor directed the freshly minted state trooper to issue our guys a citation for losing control of their motorcycles.
Well, here is what happened next. They called A.B.A.T.E. LEGAL for help and were advised that this was a bogus traffic citation. This case was even more serious because both of our guys held CDL licenses. They had to fight. Remember they live on the east side of Ohio.
As most of us know that have fought a traffic ticket, the first hearing in the process is called arraignment. A fancy lawyer term, arraignment is simply advising the defendant of the charges filed by the prosecutor. Usually, the court does not take any testimony–just a plea. If you plead not guilty, the Court will set your trial for another date. This allows the system to take a guilty plea and save the witnessing cop a trip to the court house, but it guarantees at least two trips to the courthouse for the defendant – unfair I say. This is especially unfair when the courthouse where you are charged is clear across the state, as was the case here.
Dan Benning and John Westren appeared in court and were advised of the charges. The Court accepted the not guilty pleas and promptly set the matter for trial ON ANOTHER DATE. I calculated the cost for travel and lost wages at more than a regular person could stand. The prosecutors smelled that advantage. Even with a bogus charge, he came up with a “deal.” Plead guilty to operating an unsafe vehicle and he would dismiss the operating a vehicle without reasonable control charges, waive the fine and the charge would not carry any points on the CDL licenses Dan and John depended on. Well bless his heart, that was a Hobson’s choice if there ever was one for a principled man. Both John and Dan are stand tall, tax paying, conscientiousness Americans. They are not the “sell your principles” types. After much soul-searching, they agreed to plead to operating an unsafe vehicle. They had to get back to work – bills to pay and such. One of the “UNSAFE” vehicles was a 2003 Ultra Glide Harley, the other was a 2005 Ultra Glide Harley. I only wonder what the cops would have called my 1984 FLH. Obviously, the charges were trumped-up and false– BULLSHIT, in other words. Sorry, I could just could not think of another good legal word to call it.
What to say of what John and Dan did? There is a time to fight for principle and time to stay home and feed your families. They did both. Sure, it would have been a good fight to have subpoenaed the investigating police officer and have him explain the nature of the bogus charges. It would have been rewarding to show the prosecutor the error of his ways, but such was not to be. Perhaps all of us have learned something by this – including the judge and prosecutor who engineered this miscarriage of justice. In case they do not subscribe to this publication, I have mailed a copy of this article to them along with a letter inviting them to respond. If they do, I will print every word of what they say. We all can learn.
Auction Action

Q: I had the winning bid for a pair of motorcycle boots at an online auction site. When I contacted the seller, she said she already sold them to someone else. I thought with an offer and acceptance (winning bid and auction posting), we had a binding contract. Now that she no longer has the boots (in my opinion, she sold my boots for significantly more than my winning bid) isn’t she is required to furnish me with a reasonable facsimile at the same price?
I have incurred some expenses as well – time I spent monitoring the auction and the cost of obtaining the money order (even though I didn’t send it). She is unwilling to make any offer to settle my complaint. The seller resides in Cincinnati OH. Can I sue in small claims court in Ohio?
Kelly Baker, A.B.A.T.E. of Ohio

A: There are a number of related issues in your question, including what the auction site can do, what your legal remedies are, and where you can enforce those remedies. First, most online auction sites expect sellers to deliver buyer satisfaction. For example, the eBay site states that,

When a seller lists an item and a buyer purchases it, the seller and buyer have entered into a contract that both members are expected to honor. For sellers, this contract includes both formal requirements, as well as informal, common-sense obligations to provide good service to their buyers.
Sellers who do not fulfill these requirements and obligations are not honoring their contract and create a bad buyer experience. Sellers who generate excessive bad buyer experiences relative to their selling volume are at risk of violating the seller non-performance policy.
If a seller has refused to complete a sale and payment has not been sent or payment has been refunded, report the seller. When making your report, include a copy of the email documenting the seller's refusal to complete the sale with the full message text and complete email headers.

In your case, your first action should be to report the problem to the online auction site. They may be able to exert some pressure on the seller to either complete the transaction or make amends of some sort.
Legally, there may be some remedies you can pursue, but they may be cost-prohibitive. The initial legal obstacle is whether a contract was formed or not. In general contract law, there must be offer, acceptance and consideration. There was clearly offer and acceptance in this case, but there may be difficult questions about consideration. Generally, consideration is the value paid for a promise–that is, the buyer has to give something of value to the seller in order for there to be a valid contract. In your case, the consideration would be the money order for the price offered for the boots. However, you stated that you never sent the money order, so no consideration was paid. It may be possible to argue that the act of taking time and expense of obtaining the money order is consideration, but it is not inconceivable that a court would find that no contract existed.
If a contract did exist, the next question is where a suit can be filed. Generally, a private seller can only be sued in their home county, which means that you will have to go wherever the seller is located. It may be possible to sue in your county, but you would still have to go to the seller’s place of residence in order to enforce the judgment. Depending on the value of the case, it could simply be too expensive to pursue.
The value of your claim is another question. The most common measure of damages would be the difference in costs between what you agreed to pay and what you would have to pay for a substantially similar item in some other commercially-reasonable transaction. The damages are NOT the value of the item you attempted to purchase. You may be able to include other elements, such as the cost of the money order, but the value of the damages will probably not be as large as the cost of the item.

Abandonment – Use it or Lose it

Q. I have mowed and maintained what used to be an alley next to my house for 32 years now. The alleyway is 160 feet by 12 feet. I have parked and planted in it and used it for 32 years. The alley is impassible for traffic and until I started maintaining this property, it was an eyesore. Do I have the legal right to it for maintaining it? Mike Oivero, A.B.A.T.E. of Illinois

A. The law requires that your possession of this property must be hostile (that is, it must be against the interests of the titled land owner), open and notorious (known to the general public), exclusive and continuous. It appears you meet those requirements. During this period of time, no traffic has used the alley, and trees, bushes and other vegetation have grown or been planted by you on the claimed property. Clearly your use is obvious and inconsistent with use as an alley, especially since the former alley is not passable by traffic. Most states have allowed this type of claim since the common law was adopted from England. The basis for this law is that such open and obvious use should ripen into legal title at some point. Typically this was 20 years in most states–your use is over 32 years. In an effort to defeat “squatters rights” arguments, some states have enacted a requirement of tax payment. Illinois law has not made this leap, so you are clear of that hurdle.
Before I let you go, you have another bullet in your claim for this property against the Village. That theory, also from the common law, is Abandonment. This theory allows the voluntary relinquishment of property rights by ending ownership rights without allowing ownership in any other person. Stated in another way, IF YOU DON'T USE IT – YOU LOSE IT. To constitute abandonment, there must be both an intention to abandon and an act or omission. Usually non-use alone is insufficient. In your case, the discontinued use by the Village AND its failure to “clear” the alley constitutes non-use and intent for abandonment. You should be rewarded for keeping this property from becoming a public nuisance. The law is on your side with these facts– tell the Village to take a hike if they want the alley back.

Keep Dogs Safely

Q: I have a question regarding dogs. We often let our dog out into our fenced-in backyard when we are home. We have a 5 ft chainlink fence. Unfortunately, we have neighbor children who occasionally stick their fingers through the fence. Sometimes the dog will playfully nip at them, or pull mittens off, especially if they are waving their hands around a lot. It appears our newest neighbor has 2 toddlers that they don't supervise well, and I've already told “dad” that although the dog is not mean, the children should not stick their fingers in the fence, because he could accidentally hurt them. I've already caught them once. If this continues, we'll probably have to put up a privacy fence. But what other ways can we protect ourselves? I've heard different theories, regarding Beware of Dog signs, etc. It seems to me that when you stick your hand through or over the fence, that's trespassing, but I know that is not always how things work!

A: Tough question, but a good one. I am in a similar situation with my Doberman. We have an electric fence, but have very friendly neighbor kids. It sounds like you have done a good job is trying to head off problems before they occur. Remember, children are children and they have their own rights, irrespective of what their parents have done or not done. I can guarantee one thing – if someone comes up missing a finger, there will be a lawsuit. Also, remember that just because you have been sued does not mean you were negligent. In addition, I would check your homeowner’s policy to make sure you have coverage. If you have doubts, call your agent to ensure you are covered. If your agent does not respond, let us know, and we can try to help out.
Consignment Nightmare

Q: I placed my custom bike for sale on consignment with a bike shop that specialized in selling custom bikes. The owner promised to sell the bike, but the sale never materialized. After many failed deals and several months, I tried to remove the motorcycle , but the owner insisted that he was going to take it to a show. The motorcycle was sold, but I never received the $20,000.00 we agreed on. After learning that the owner might file for bankruptcy protection, I tried to collect my money.
In the meantime, the owner filed bankruptcy, and the local prosecutors began to look into the owner's transactions. The bankruptcy court ordered the business assets sold to pay the debts, but I received nothing from the court after the secured creditors and bankruptcy lawyers were paid. To add insult to injury, a finance company asked the court to order all of the consignment sellers (including me) to turn over the titles to the bikes so that they could be delivered to the buyers. While the prosecutors have reviewed the case with a grand jury, no indictments have yet been issued. What can I do?

A. I have few suggestions, and fewer good ideas on how to get the money back. The best advice is to NEVER engage in a consignment sale without having a lawyer review and help draft the sales documents. There are contract terms and provisions that can enhance your ability to make sure you can receive payment for your bike, but no one can offer an ironclad guarantee. The best way to avoid getting screwed like that is to not put yourself in the position to start with. Consignment sales are fraught with danger and are best avoided altogether.
What else is available? For starters, the bankruptcy should be challenged due to the fraud of the owner. However, proving fraud is always difficult, and collecting the restitution can be problematic. If you still have the title to the bike, you can try to have the court order the bike returned. Again, while the arguments for doing so are legally sound, they require that the court be convinced and enter the proper orders. If you don't have the title, the outlook is pretty bleak and is basically left up to the tender mercies of the bankruptcy court and the prosecutor's office.


Ride Safe and Free,

Rod Taylor

A.B.A.T.E. Legal Services

If you have any questions you would like to ask the lawyer, please submit them to: Ask Our Lawyer, P.O. Box 2850, Indianapolis, Indiana 46206_2850, or email rodtaylor@abatelegal.com. © 2005, A.B.A.T.E. Legal Services