Litigating a Claim in Small Claims Court

The complaint I hear most often is from consumer dissatisfied with repairs to their car. The amount in dispute between the consumer and repair shop is generally too small to handle on either a contingency or hourly basis. As a result, I provide the referrals with some self-help guidance in the hopes that they can resolve their dispute themselves, either informally or through litigation. This article outlines the pointers I give.

There is no question that if a consumer spends $500 or $1,000 on car repairs, only to have the problem recur, the consumer will want his money back or the car repair shop to continue working on the problem at no charge. As in any trade or profession, there is always the possibility of a misdiagnosis. The car repair shop at first thought it was one problem, but it turned out to be another. Anyone who listens to Car Talk on NPR knows what I am talking about. But if it sounds like the consumer is getting the run-around or the repair shop is not living up to its warranty obligations, as a first step, I suggest that the consumer write a certified letter outlining his or her concerns. The letter serves an important purpose. It puts the repair shop on notice of a potential breach of warranty or DTPA claim. Such a notice is a pre-requisite to filing both a DTPA claim and to recovering attorney's fees for breach of contract. Section 17.505(a) of the Business & Commerce Code (DTPA) requires the letter to give "reasonable detail" of the consumer's specific complaint and the amount of economic damages incurred by the consumer. The letter should be written at least 60-days before suit is filed. I always advise the consumer to keep the tone professional and to outline in detail the continuing problems and attempts at resolution. I have received returned telephone calls on more than one occasion from potential referrals whose problems were resolved after they wrote a letter. One side note on the DTPA. In my experience, one of the most useful, yet overlooked, provisions of the DTPA is Business & Commerce Code Section 17.5051, which permits either party to compel mediation relatively early in the case. Where the amount in dispute is small, an early mediation often leads to settlement before the parties' harden their positions--after receiving the first statement from their lawyers.

If the initial letter falls on deaf ears, I suggest the consumer file a complaint with the Better Business Bureau. If the repair shop is a member of the Better Business Bureau, it will have some incentive to resolve the dispute to the consumer's satisfaction. The Better Business Bureau serves as a forum for both informal and formal dispute resolution-offering its member companies and consumers binding and non-binding arbitration. Absent binding arbitration, the BBB does not have any enforcement authority over its member companies, so it may be difficult for the consumer to obtain complete satisfaction through the BBB.

My last suggestion to the aggrieved consumer is to file a complaint in small claims court. As I mentioned earlier, most of the disputes I have received calls on involve claims of less than $1,000. In Dallas County, the filing fee for a small claims case is $12. To have the Constable serve the citation and petition costs an additional $55. There are several things to be aware of when advising someone to proceed pro se in small claims court. First, the pro se plaintiff should file a small claims case, not a justice court case. This distinction is important. While the same Justice of the Peace presides over both small claims and justice court, rules of evidence and procedure apply to justice court cases, but not to small claims cases. Second, the pro se plaintiff needs to be made aware that the court's jurisdiction is limited to $5,000, exclusive of court costs, but inclusive of interest and attorney's fees. Additional information on Justice of the Peace Courts can be found at www.dallascourts.com. The consumer can call any JP Court to find the court nearest the repair shop in which to bring suit. Complaint forms are available at every JP Court and the staff of these JP Courts around Dallas are extremely helpful to pro se litigants.

One final note. Few consumers realize that unless they pay for the repairs to their vehicle, even if they take issue with the repairs, their car can be repossessed and sold. This is because the repair shop acquires a possessory lien on the vehicle by virtue of Texas Property Code § 70.001 et seq. In order for the vehicle to be repossessed, the consumer had to have signed or been given an express warning of the possibility of repossession absent payment. But if such a notice was given, without a resolution of the repair dispute, the consumer runs the risk of losing the vehicle (unless, of course, payment has already been made).