We recently represented a local dealer at a trial held in the next county. He was being sued by a customer upon the claim the goods picked up by the client at the dealer’s store eventually turned out to be defective.

Rather than sue in the local court in the district of the dealer, the customer started the lawsuit in another county in the court closest to his house.

Because of this apparent lack of jurisdiction, we asked the case be dismissed as being jurisdictionally defective before the trial even started. The law, we noted, provides that our client could only be sued in this court if he had his place of business or “did business” in that county. For the record, he never actually delivered anything into that county. And since our client was prepared to swear on the witness stand, we claimed the lawsuit must be dismissed.

The judge disagreed. “Do you advertise in the largest regional newspaper?” he asked.

“Yes,” we replied.

“And does that paper circulate in this county?” he continued.

Again we said, “Yes.”

“Well,” he concluded, “since it is entirely likely the plaintiff went to your store because of your advertisement that appeared in this county, I find you do, in fact, do business here and I do have jurisdiction.”

Have it in writing

Luckily our client’s invoices, signed by the plaintiff, made it clear the goods in question were sold “as is.” The customer had inspected them and agreed to buy them at a reduced price with no warranties.

This documentation allowed us to win the lawsuit.

In this case, our client’s ads subjected him to a lawsuit in a place where he doesn’t actually “do business.” This is a peril of advertising that occurs in different forms.

In a recently reported case, a tile manufacturer was sued along with the installer and retailer by the end user on the claim the tiles eventually proved to be defective. The mill, located half-way across the country, attempted to have the lawsuit dismissed upon the basis there was no “privity of contract” between itself and the end user.

In the lawsuit, the consumer claimed all parties in the chain of sale had breached implied and expressed warranties that the goods would be of merchantable quality and fit for the use intended.

These warranties, according to the manufacturer, are under the Uniform Commercial Code and made a part of the sale agreement. Since, the mill concluded, there was no oral or written agreement of sale between itself and the end user, there could be no breach of these warranties.

The court agreed with regard to the claimed implied warranties. Since there was no contract, said the judge, there was nothing for the warranties to be implied on to so there could be no breach of a warranty that was never made.

With regard to the expressed warranties, however, the court found otherwise. In his court papers, the consumer claimed he relied, in part, on the national advertising and literature of the mill in making the purchase. This advertising, he said, contained various claims and representations with the claims being untrue.

The advertising, according to this judge, constituted an expressed warranty to anyone who relied on it in the purchase of the product. Accordingly, the consumer was entitled to sue for breach of warranty.

In both of these cases a judge relied upon advertisements as a basis for the bringing of a lawsuit. When you stop to think about it, they probably were the right things to do.