Smyly Autos: A litigation saga by Philip Greenspun (who would generally prefer not to litigate)

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• April 13, 1994: I took my 93 Caravan to Smyly Dodge (Malden, MA) for an oil change and minor warranty work. (Yes, this is the same Caravan that went to Alaska in Travels with Samantha.)
• April 15, 1994: When I picked up the van, there was a coil of wires where the Alpine cassette/tuner used to be in the dashboard. I asked them "may I please have my radio back" and they said "What radio? There was no radio in the car when you brought it in." I replied that "I must have imagined listening to that tape as I drove in."
• April 19, 1994: Alec DeSimone, a Vice-President of Smyly called on Tuesday and said "I'm sorry, but everyone I talked to said there was no radio in the car when you brought it in." I suggested that settling our differences in a 93A (Massachusetts Consumer Protection Act) lawsuit might not be the most enjoyable experience for them. "93A doesn't cover this kind of thing. Besides, I go to court all the time. And we ALWAYS win," he said.
• April 19, 1994 (later): I sent Smyly a 93A demand letter (the statute prevents you from recovering treble damages unless you give the business 30 days to make you a reasonable settlement offer).
• May 23, 1994: I filed a Complaint in Malden District Court against Smyly.
• August 5, 1994: I'd received no answer to the Complaint from Smyly despite their having been served by a Sheriff and despite two reminder phone calls on my part. The Massachusetts Rules of Civil Procedure give a defendant 20 days to answer a Complaint so I sent the court a Request for Default Judgment.
• August 9, 1994: The Clerk at Malden District Court sends Smyly and me an Entry of Default.
• August 16, 1994: A lawyer named Thomas Burns calls me and tells me that he represents Smyly. Motors Insurance, which is Smyly's liability carrier, called him to ask why there was a default and why didn't he answer the Complaint? He told them that he never got the Complaint and they checked their files and found that they never sent it to him. He said he was all set to file a motion to remove the default and then an Answer but discovered that he had a conflict because his firm was representing somebody in litigation with Smyly.
• August 16, 1994: I spoke with Karl Drews, Smyly's lawyer of the moment, and he asked me to assent to a removal of the default, which he claimed was routinely given because judges don't like to let defaults stand, preferring to give people their day in court. I refused so we agreed to a hearing on September 8. Drews files an Answer and a Motion to Remove Default.
• August 30, 1994: Greenspun sends his memo opposing Drews's motion to remove the default to Drews. This motion is accompanied by an affidavit because it isn't enough to assert facts in a motion; one must have somebody swear to them (even if it is the same person who writes the motion).
• September 8, 1994: Greenspun and Drews show up at 9 am to do battle in Malden District Court. There is only one judge and he is busy with a heavy criminal docket. Just about the time I'd finished reading the Wall Street Journal, a clerk comes out to announce that the judge won't appear until 2 pm. Drews offers to settle the case for $700 or $800, implying that this would be a big favor to me and very gracious of Motors Insurance's part. I told him that my pre-litigation settlement offer to Smyly was $2500 and that I'd certainly not take less than that. It turned out that I couldn't show up at 2 pm so Drews got the judge to himself. According to a conversation I had with Drews later, the judge took the matter under advisement and did not rule from the bench, so he might have read my brief. Smyly's motion to remove the default was allowed and now we're back to ordinary litigation.
• September 14, 1994: Drews calls to offer $750 and says he is going to file an "offer of judgment" for that amount with the court. This will make me liable for Smyly's' costs, but not their legal fees, should I ultimately win a judgment of less than $750 from a judge or a jury. Drews says that this is all I'll ever get from a court, that I can't get lost wages or other damage, but he is overlooking 93A. I refuse the offer.
• September 15, 1994: Drews files Smyly's answer, the promised offer of judgment, and begins discovery with a request for production of documents plus a set of interrogatories.
• November 1, 1994: Greenspun files four documents: answers to Smyly's interrogatories, a response to Smyly's document request, some of his own interrogatories to Smyly, and finally his own request for documents from Smyly.
• December 27, 1994: Greenspun files a request with the court for final judgment for relief for failure to answer interrogatories.
• January 12, 1995: Smyly files its answers to plaintiff's (Greenspun's) interrogatories
• January 13-February 2, 1995: Greenspun goes on awesome trip to Costa Rica.
• March 16, 1995: Greenspun moves the court to compel production of documents and further answers to interrogatories from Smyly. Smyly for its part moves to compel further answers and documents from Greenspun, including my tax returns to show that I didn't lose $2400 worth of time.
• March 31, 1995: Judge Brian R. Merrick of the Malden District Court denies both motions to compel and schedules a trial for the following Friday. With a little research, I discover that dozens of Smyly customers and the Commonwealth of Massachusetts have filed suits against Smyly.
• April 5, 1995. Greenspun files a motion to compel Smyly to at least let him take photographs of the premises. It is not judge Merrick this time, but a judge with a kinder, gentler manner. He denies my motion. Smyly moves to continue the trial because Alec DeSimone, their star witness in many previous lawsuits, won't be available. Judge Merrick allows their motion.
• May 5, 1995: The trial before Judge Merrick. I am awarded $760 on Claim I, just enough to put me over Smyly's "offer of judgment". Judge Merrick denies my other claims, including my 93A claim that could have gotten me treble damages.
• If I had been a real man (instead of a wimp with a quirky personal philosophy regarding dispute resolution), I would have appealed for a jury trial. Because I claimed less than $25,000 in damages initially, I could not file in Superior Court. My right to the jury trial that I demanded is preserved by giving me an automatic right to appeal for a jury trial if I don't like the results of my district court trial. I would have had to pay a $110 removal fee and post a $100 bond. Instead of going through this, I settled with Smyly for $1000. I cashed the check and went back to my research.

  Epilogue

• February 1998: donated minivan to Southern Animal Rescue Association

What a bunch of pricks these Smyly people are.

-- N. Hopper, April 29, 2000

Not _ALL_ Smyly's are like this! <g>

-- G Smyly, July 9, 2000

Mr Greenspan, clearly you feel very aggrieved. It doesn't help you to feel bitter. It ruins your enjoyment of life. You may or may not ever say The Lord's Prayer, but if you do remember that you ask for forgiveness as you forgive. In the meantime you are ruining my enjoyment of looking up 'Smyly' on the internet by filling it with your unhappy experiences ! With best wishes from an honest Smyly.

-- Robert Smyly, March 9, 2001

I absolutely love this site and the details of the Smyly case. You may save dozens of people from buying from Smyly and in turn they will (and probably have) lost $thousands. Buying Smyly.com was a GREAT move. Thanks again for this site.

-- Chris Papas, April 10, 2001

I think we should all go to Smyly's to to pretend to be interested in buying their products and then after using up an hour of their time, hand them a print out of this forum and say something like "It's not nice to steal from photographers!"

If everyone who read this forum offered one hour of their time to help Phil get even we could in effect close the place down!

-- Scott Bourne, July 22, 2001

Well bravo for winning, and sticking at it. I really cannot beleive how difficult it was - in the UK I filled out one form, attended court for one hour, won judgement. Filled out another form and collect dues via the bailiffs.

We cannot get treble damages though!

-- Chris Street, September 28, 2001

Reading from CO and not even sure how I ended up on this page, but kudos to you! It's great that you can keep others informed with websites like this. Hopefully your DREADFUL experience will help others not to service or buy vehicles from crooks like this!!

-- H Sileo, November 18, 2001

I work with one of these damn Smyly's at my Dodge Garage and he keeps stealing my tools!

-- Billy Bob Smith, December 28, 2001

I came across this site while wondering around looking for ACS information. Having read the Ford and Smyly stories, I laughed when I realised that Smyly.com points to your pages. I thought that was brilliant! Well done!

-- Kirstyn Ockford, May 22, 2002

While surfing through endless web pages looking to purchase a used auto, I realized I had forgotten about the Smyly dealership near my home (I live in Saugus). Knowing the Smyly name for years I considered their dealership for my purchase. However, after reading your comments I will NOT set foot on their lot. Thank you for your time creating this informative site. Smyly will not get my business. I will advise everyone I know to "steer clear" of Smyly :-) WTG!!

-- Carole Condon, October 21, 2002

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