Judge Ponders if Complaining Funtown RV Customer Really Surrendered Her Constitutional Right

 

SAN ANGELO, TX — A Tom Green County district judge will decide whether a dissatisfied customer of a local RV dealership signed away her rights to a jury trial. The plaintiff in the case, Midland resident Kara Stephan, is suing Funtown RV, 3560 US 67 North in San Angelo, and the fifth-wheel’s manufacturer, Forest River, for selling her a “hopelessly flawed product.”

At issue in the case currently is whether or not Stephan agreed to waive her rights to a trial by jury when she signed a two-page purchase agreement with Funtown RV. In the printed agreement, page 2, the fourth statement she signed her name to reads:

 

TRIAL BY COURT The Buyer Hereby unconditionally waives all rights to a jury trial of any claim or cause of action based upon or arising out of directly or indirectly, this purchase agreement. In the event of litigation rather than Arbitration, this purchase agreement may be filed as a written consent to a trail by court without a jury.

 

[[{"fid":"44170","view_mode":"default","fields":{"format":"default","field_file_image_alt_text[und][0][value]":"The way the \"Trial by Court\" provision was highlighted in the purchase agreement. (Court documents)","field_file_image_title_text[und][0][value]":"The way the \"Trial by Court\" provision was highlighted in the purchase agreement. (Court documents)"},"type":"media","field_deltas":{"1":{"format":"default","field_file_image_alt_text[und][0][value]":"The way the \"Trial by Court\" provision was highlighted in the purchase agreement. (Court documents)","field_file_image_title_text[und][0][value]":"The way the \"Trial by Court\" provision was highlighted in the purchase agreement. (Court documents)"}},"attributes":{"alt":"The way the \"Trial by Court\" provision was highlighted in the purchase agreement. (Court documents)","title":"The way the \"Trial by Court\" provision was highlighted in the purchase agreement. (Court documents)","class":"media-element file-default","data-delta":"1"}}]]

Lawyers for Funtown RV et. al. do not want to have a jury trial; the plaintiffs have requested one. The Funtown RV side made a motion to quash, or do away with, the jury trial request. If there is no jury, a lone district judge hears the case and rules on who wins.

Judge Ben Woodward heard arguments from both sides July 31 at the Tom Green County Courthouse. Arguing for Funtown RV, Houston attorney Craig Dillard said that Texas courts historically enforce jury waivers. Using the two-page purchase agreement Stephan signed as his only exhibit, Dillard said it is clear that she signed the agreement, and initialed the second page. “There is more that sufficient evidence that proves the plaintiff agreed to a jury waiver,” he said.

Dillard also noted that the plaintiff argued in the initial lawsuit petition that she intended to use the fifth-wheel trailer as her primary residence. “For someone making an agreement to purchase their home, their primary residence, they’d read this agreement carefully,” he suggested. And, unlike lengthy mortgage agreements, this purchase contract is only two pages long and the back has only 14 provisions, he argued.

Dillard also argued that Funtown RV’’s signed purchase agreement should apply to the manufacturer as well, as Stephan is suing both Funtown RV and Forest River.

For the plaintiff, Houston attorney W. Perry Zively, Jr. teleconferenced into the courtroom to make his arguments. He argued that the burden was on the defendants to prove the jury trial waiver was conspicuous enough for the buyer (Stephan) to understand or comprehend. “There is absolutely no change in font size or highlighting of the jury waiver provision,” he said.

Zively said precedent would support his position.

Further, Zively asked that, should the judge rule to quash his client’s request for a jury trial, the ruling only be applicable to the case against Funtown RV, not the manufacturer. The purchase agreement, Zively said, was between his client and Funtown RV, not Forest River.

As the plaintiff’s argument concluded over the speakerphone, co-attorney Guy Choate, speaking for the plaintiff inside the courtroom, asked to address the judge.

His request was granted and Choate stressed that his client’s 7th Amendment rights are “substantial” as they are for all Americans. The 7th Amendment, part of the Bill of Rights, guarantees all Americans that “the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law,” it reads.

Choate’s closing statement was a question. Did the purchase agreement really highlight to his client that she was giving up a Constitutional right? “The item’s headline on the purchase agreement is ‘trial by court.’ Did she really understand that meant she waived the right to a jury trial?” Choate asked.

Judge Ben Woodward said he would issue a ruling in the near future.

Stephan sued Funtown RV and Forest River Recreational Vehicle Company in May after she said the fifth-wheel RV she purchased had over 70 defects that the warranty work did not fix. She claimed in her lawsuit she was sold a “hopelessly flawed product.” More on the lawsuit here. https://sanangelolive.com/news/busi…

Subscribe to the LIVE! Daily

The LIVE! Daily is the "newspaper to your email" for San Angelo. Each content-packed edition has weather, the popular Top of the Email opinion and rumor mill column, news around the state of Texas, news around west Texas, the latest news stories from San Angelo LIVE!, events, and the most recent obituaries. The bottom of the email contains the most recent rants and comments. The LIVE! daily is emailed 5 days per week. On Sundays, subscribers receive the West Texas Real Estate LIVE! email.

Required

Most Recent Videos

Comments

The case will drag on for five years, both attorney's will line their pockets, the judge will refuse to go to trial and order the parties to settle. Five years later both Funtown and the Gal from Midland will be glad it's over and much poorer. A win for the prosecuting attorney, a win for the defense attorney, and a glad it's not in my courtroom for the Judge.

Funtown RV’s lawyers are aguing that their client has the right to force this customer to surrender her right to a jury trial because in their eyes, “she was stupid enough to sign this document without knowing its real implications. That means we have a legal right to act unethically because the law says so”.

Hey Funtown, ever heard of Social Media? Can you even imagine, without using your lawyers’ rented brains, how many of us out here are watching this in amazement at the kind of stupidity it takes to expose your unethical behind in public over one sale? How many of us do you think would EVER even set foot on your place of business, let alone buy something from you now? Hmmm, penny wise and dollar foolish!

Wabo73, Thu, 08/02/2018 - 19:38

That’s just stupid that warrenty don’t cover stuff if it’s YOUR HOME it’s either covered or NOT. Being someone that has looked a lot at getting one from said place I now look elsewhere was looking at an 18,000 one there too. I’ve never heard of you can’t live in one full time if you do warrenty is void? I’d say don’t buy from that brand and place I think there just there to move product? Sad and scary. Let judge decide then she gets 100% her money back and if she wants she can go to fun Town and pick out WHATEVER rv she wants. If funtown says no then they cough up 100,000$ and brand coughs up 100,000. And funtown has to take out part on sales agreement no jury trial. Shouldn’t this go under lemon law? That just for cars trucks?

After reading this, who would go to fun town? The management didn't need this kind of publicity.

So now all businesses can make you sign "I am not going to take you to court." It can be on restaurant receipts, folks can use it for apartment leases, etc. We can all walk around with papers that say this and if someone wants to talk with us, we make them sign it.

Actually speaking from experience the lemon law DOES cover RV's as long as it is purchased new, not used.

Anytime you pay to engage in a risky recreational activity, skydiving, whitewater rafting, zip-lines, etc., you sign that little waiver of liability, acknowledging that should things go badly and you are injured or killed, you absolve the business from all responsibility. But a purchase agreement shouldn't require a waiver. The dealer should be held responsible for not honoring the warranty.

According to the original story referenced at the end of this one by a link, the RV was purchased "brand new" on May 19, 2017, for $80,000. She alleges 77 defects. If permanent residency nullifies the warranty, then she may have trouble collecting. I suspect the dealer and/or manufacturer will settle with her if a judge doesn't dismiss the suit.

Get the whole story. They purchased a pre-owned RV initially referring to it as “brand new”. What’s paramount here is that the self touted “Biggest RV Dealership in the Universe” feels they can deny their customers certain constitutional rights. Otherwise, the lawsuit is frivolous in every way.

I guess I missed part of the story.
But I did read this part
She alleges 77 defects in her brand new, $80,000 2017 Cedar Creek Champagne RV Model 38ERK she bought from San Angelo’s Funtown RV location on May 19, 2017.
So where is the whole story?

@Hot Dog: Maurice Kelley wrote the following in a comment to the San Angelo Live article on Jul 23, 2018:

“In February, I agreed to purchase a used RV from Paulie”.. (link here for full statement):
https://sanangelolive.com/news/business/2018-07-23/funtown-rv-sued-selling-midland-woman-hopelessly-flawed-product

Many people refer to something pre-owned as "brand new" when they want to praise or condemn it.

Sorry for the late update.

Post a comment to this article here:

X Close