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Wedding Refund due to Covid 19

Discussion in 'Consumer Law, Contracts, Warranties' started by Chris Nguyen, Jun 29, 2020.

  1. Chris Nguyen

    Chris Nguyen Law Topic Starter New Member

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    Jurisdiction:
    Nevada
    So I have a dispute with my wedding venue since they did not want to issue my refund due to COVID. We finally settled on returning half as long as I sign a document to close our case. We scheduled for me to come after work around 430pm to sign the document and get the money. I showed up and she was a no call no show. Her secretary got her on the phone and she said to come back tomorrow. As I left, I realized I had other obligations and texted her to just email me the form and I will sign it. She can then just mail me a check. I got no reply. The next day, sent another text to confirm, no reply, Called and left her a voicemail, no reply. Call before leaving work, no reply. My wife called twice and no reply. Today is Monday and I messaged her again saying I am assuming she would like to settle this through arbitration since she has avoided all communications. She finally replied that I was the one that made the change of plans since I did not show up the following day and that I should owe her for the remaining money. How I can owe her for the remainder if she never provided anything for us as our wedding day came and gone.

    There is an arbitration clause in our contract but it also noted that the prevailing party is entitled to recover arbitration costs and reasonable lawyers fee. My concern is if I lose in arbitration, I will have to pay like 3k plus in cost since businesses have to front all the money in arbitration when I am only asking for 4k back. Does a text message constitute as binding for mediation? Do I have a leg to stand on? Even with a arbitration clause, can I go directly to small claim court? Which route should I take?
     
  2. army judge

    army judge Super Moderator

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    Maybe, your Nevada Supreme Court has ruled that text messages can be introduced as evidence in criminal trials if there is sufficient evidence to identify the sender.

    Arbitration proceedings usually apply more relaxed standards for admitting evidence.



    Maybe. You must decide to proceed or let it go.

    Probably NOT, if the contract into which you entered is legally binding.

    You must decide.

    You can visit a couple attorneys and obtain a free evaluation/consultation relative to your legal concern(s).

    Once you do that, you'll have more information on which you can make an informed choice.
     
  3. army judge

    army judge Super Moderator

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    The court doesn't care what I think, you think, or even what Santa Claus thinks.

    The judge will read it and allow it if it supports your representation of events, and you can PROVE who sent the message.

    Know this, that just because a message identifies as arriving from the device belonging to "Joe Jones", that doesn't prove the message came from "Joe Jones'" device, or that "Joe Jones" sent the message.

    Question: Is there a way to prove in court where text messages originated from, given the ability to spoof phone numbers?
    <===================================>
    No, not if the defendant is smart about it. A clever person might remove the texts permanently from their device in such a manner that they can't be recovered, and of course, claiming they didn't send them.

    However, there are other ways to convince a judge or jury that they were sent by the defendant.

    Text messages can be authenticated through a variety of ways, including:

    1. The other party admitting they're his or her texts;
    2. A witness who saw the text messages created or sent;
    3. Characteristics of the message itself;
    4. Circumstantial proof (such as phone company proof); and
    5. "Reply authentication," in which a reply text is deemed authentic because it's clearly in response to the text message that was initially sent.

    The above MIGHT help you support your side of the story, if that's what you wish to do.

    Final note: Some people claim the phone company can always determine which phone sent a text based on cell towers and systems.

    Not true.

    A smart cookie can clone a phone and/or otherwise spoof it to the point that it can fool the carrier's systems.

    There are also "apps" available that allow a person to spoof any telephone number from anywhere in the world, not just the USA.

    Systems improve, and so do tricksters.

    Here are some lengthier legal explanations:

    Authenticating Digital Evidence at Trial

    Text Messages as Court Evidence | Law Office of Natalie Gregg

    This one warns about FAKE text messages:

    Beware of fake text message evidence | Dallas Divorce Law Blog
     
  4. adjusterjack

    adjusterjack Super Moderator

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    That question is impossible to answer without details, not the least of which is did you cancel or did the venue cancel?
     
    Michael Wechsler likes this.
  5. zddoodah

    zddoodah Well-Known Member

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    What makes you believe you're entitled to a refund?

    I have no idea what this question might mean or why you're now talking about mediation (which is very different from arbitration).

    No one who hasn't read your contract can intelligently answer this question.

    You can try. However, if the venue really wants to do this through arbitration, it could easily have the small claims case dismissed, and you'll have wasted your time and money.

    Yup, that's pretty much what it shows, which is all but meaningless. Again, one would need to read the contract.
     
    Michael Wechsler likes this.
  6. Chris Nguyen

    Chris Nguyen Law Topic Starter New Member

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    To give everyone the back story.

    We booked the venue in Nov. 6th for a June 6th, 2020 wedding with a 1k deposit. Two additional 1.5k deposits were made on December 18th, and 6th for a total of 4k. We met throughout the process to provide our guest numbers and coordinate all the vendors and rentals with the venue. Then Covid 19 came.

    - Nevada's Governor issued a stay at home order on March 17th taking affect on March 18th.
    - April 1st, the Governor closed all non essential businesses to close to the end of the month (April 30th). At this point, we were staying hopeful still.
    - On April 21st, the Governor stated we are in Phase 0 (closure of non-essential businesses) and will not start Phase 1 until there's a 14 day downward tread in Covid cases. At this point, there was no confirm date of when Phase 1 would start.
    - April 29th, the Governor extends the stay at home order to May 15th.
    - April 30th, the Governor announced that Phase 1 would begin on May 15th but this will not include large entertainment venues. Public and private gatherings are limited to 10 people or less.
    - May 9th, the actual start date of Phase 1. Earlier than everyone expected with the same requirements noted above.
    - May 12th, we reached out to the venue to talk about canceling the wedding. Told them we are ok with them keeping the 1k initial deposit but would want the rest refunded. The owner, Michelle said she would think about it and get back to me.
    - May 15th, Michelle rejected our 1k offer but said she would refund half but if we want to move foward with the wedding, we were limited to 10 people max as stated by Phase 1 requirements. I believe this was wrong as the 10 people does not apply to wedding venues and they were not allowed to operate so I rejected the offer and said I would review the contract and see legal advices.
    - May 18th, call Michelle, no answer
    - May 19th, received a text from Michelle saying shes out of town in Oregon with sketchy reception and I should just text her. I texted and said I rather talk on the phone and if she could call me back when she gets back, it would be best. She said she would be back Friday.
    - May 22nd - The Friday came and no call. Waited until 930pm before sending out a letter of demand to get the ball rolling to go to small claim court.
    - May 26th - Received a text from Michelle saying she tried calling but I never called her back. I got no records of this. At this point, we are 11 days from the wedding.
    - May 29th, Phase 2 started. This includes wedding venues but they are limited to the same criteria as faith based services which stipulate that gatherings are limited to 50 people max and food and drinks cannot be shared.
    - June 12th, reached out to Michelle again with a level head and tell her with the wedding over, I would like to just move on and if she is ok with it, we can settle for half. She agreeded and said her lawyer will draft up a contract and will refund the money once I sign it. This is all documented in text.
    - June 17th, followed up, she messaged back and said the lawyer is still working on it.
    - June 24th, reached out again. She said she just received the document and that she can sent it to me electronically or I can go there and do it. This is the text I attached in my previous post.
    - June 25h, showed up at the time we agree and she was a no call no show. Her employee got her on the phone and said I need to come back tomorrow. Agitated I said yes and walked away. On the drive home, I relaized I had other obligations so I messaged her and tell her to send the document instead and just mail me the check. no reply
    - June 26th, followed up again at 8am asking if she will be emailing the document to me today? no reply. Called and left a voicemail, no reply. Finally received a call from her, but when I answered, I just hear a dog barking in the background. No one replied. I hanged up and called her right back, no reply. I messaged up about not hearing anything but her dog in the background, no reply. Called her after leaving work, no reply. Wife called twice when I got home, no reply.
    - June 29th, I messaged her saying that since she has been avoiding all communications, I am proceeding on the basis that she would rather settle this in arbitration. She finally shot back and said I was the one that changed the plan and not show up the next day. If I proceed with aribitration, I am getting what's in the contract which is nothing. I messaged her saying that I have been reaching out to her constantly and she has not responsed to an text or phone call so that is why I took it as she was avoiding me. No reply. I called her to see if we can just settle this in person today. No reply. Shot her a final message saying please sent the document by Wedenday or I can stop by today and take care of everything. No reply.

    This is where I currently stand. The contract all notes that deposits are non refundable. I get that. No one saw Covid coming and I have been trying to work with the venue to no avails. There is an arbitration clause in the contract but it also notes that the prevailing party is entitle to recover arbitration cost and reasonable lawyers fee. For arbitrations, businesses typically pays up to 3k plus for the arbitration fees. If I lose, I am risking an additional 3k plus to try and get maybe 2-4k back. Reading the rules from the American Arbitration Assocaition, section R-9 states below which is verbatim. I copied and paste it.

    "If a party’s claim is within the jurisdiction of a small claims court, either party may choose to take the claim to that court instead of arbitration as follows: (a) The parties may take their claims to small claims court without first filing with the AAA."

    If this is true, I would rather go to small claim as it would not cost her up front so if I lose, she would not be able to recover her lost fees. This is where I am asking for advice from everyone here and see if I have a case and where do I stand. Can I quote the clause of impossibility or frustration of purpose? Can the text agreements (informal mediation) be considered a binding contract.

    I hope everything makes sense now.
     
  7. adjusterjack

    adjusterjack Super Moderator

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    Many people voluntarily go to arbitration even if it is not mandated in a contract. If your contract mandates arbitration then you no longer have the option of using small claims court.

    However, if you want to risk a hundred or two on the chance that she won't ask for dismissal on the grounds of the arbitration then do so. Once she is served the summons and complaint for small claims court it's up to her to decide whether it's worth it to her to insist on arbitration. If she gets the small claims case dismissed and doesn't file for arbitration, you'll have to decide what to do next.

    I have no idea what that clause is. Is it in your contract? If not, then provide a link to it.

    In theory, they can. In practice, yours don't show any such thing.

    Note that you can upload a file here. If you want to upload your original contract, feel free to do so, redacting any identifying information.
     
    Michael Wechsler likes this.
  8. Chris Nguyen

    Chris Nguyen Law Topic Starter New Member

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  9. army judge

    army judge Super Moderator

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    After a quick perusal of the document you uploaded, it appears to be a bunch of "do this" and "don't do that", rather than a contract.

    The document insinuates arbitration is binding, yet I don't see that you agreed to anything, other than all parties affixing a signature and date to the document.

    If small claims is your desire, it'll only cost you as noted below:

    Small Claims Filing Fees Washoe County Nevada
    Description Cost
    Under $1,000.00 $66.00*
    From $1,000.01 to $2,500.00 ..........Filing fee = $86.00*
    From $2,500.01 to $5,000.00 ..........Filing fee = $106.00*
    From $5,000.01 to $7,500.00 ..........Filing fee = $146.00*
    From $7,500.01 to $10,000.00 ..........Filing fee = $196.00*
    Counterclaims $71.00*

    If you prevail, your filing fees and court costs are recoverable, should you ask for same as one of your remedies.
     
  10. adjusterjack

    adjusterjack Super Moderator

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    I did not do a "quick perusal" of your upload. I slowly read every word. The first 5 pages are certainly the "do this" and "don't do that" pages but the last 4 pages is a contract, one that you signed agreeing to it's terms and conditions including a binding agreement to use arbitration to settle any disputes.

    As previously noted, you can take your chances with small claims court but you should know that Nevada allows parties to be represented by attorneys. You can bet that a venue that charges $12,000 for a wedding reception is almost guaranteed to have an attorney ready to put the kibosh on a small claims lawsuit and enforce the arbitration clause. (Sorry for the bad news.)

    After reading the articles you linked to I agree that those doctrines may be of help. However, one of the articles cites California cases and another relates to Massachusetts. The third article cites no cases.

    You will have to find Nevada case decisions to support your contention that you are entitled to a refund.

    The following search reveals several resources that you can read and see if they cite Nevada case decisions that you can look up.

    frustration of purpose nevada at DuckDuckGo

    Understand that when you litigate you must cite case decisions not articles about case decisions.

    Chris, now that we've read and commented on your attachments I have had to delete them because there is too much identifying information in them.
     
    Last edited: Jun 30, 2020
  11. Chris Nguyen

    Chris Nguyen Law Topic Starter New Member

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    Thank you for all the responses. They have been extremely helpful.
     
  12. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    I am unclear about who actually canceled the reception. I would consider this an issue and perhaps I missed it. Were they willing ready and able to perform? Did they perform for other parties after phase 2 opened?

    At one point it seemed as though they would go forward but only with 10 persons. You rejected that offer but only because you believed it wasn't necessary - which apparently it wasn't once the state entered phase 2. At that point, did the venue ever give you any reason to believe they would perform? You tried contacting them but you said that they didn't reply.
     
  13. Chris Nguyen

    Chris Nguyen Law Topic Starter New Member

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    I was the one to reach out to them and cancel the wedding since they never initiate any communication; however, I believe that although I reached out, it would be considered that they had to cancel the wedding because they cannot provide what was bargained for.

    I am unsure if they perform any other parties during Phase 2 but my guest would be no. This venue is very poor at communication and every attempt is just me reaching out to them. Even if they wanted to move forward with the 10 people limitation, they are wrong in that that limitation does not apply to them. All non-essential businesses are to remain closed and that 10 people limit is for more of personal gatherings of people like family and friends. That's how I took it.
     

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