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Is this defamation per se?

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quincy

Senior Member
I sent you a private message with the links.

The question remains; did the customer make a false statement with his remark and it is defamatory? Seems to me that it is defamatory on it's face considering he was offered a refund and rejected it.

How do you establish by law what part of a product and service are legally refundable? If you make it know to a customer before he enters a contract that this portion of your service is non refundable, that is your policy and they choose to contract with you anyway and then expect that you change your policy for them when they unhappy, how do your protect your business?
You may need to send the link again. My private message mailbox was full so I just emptied it.

I will take a look at the review and compare it to what you have said has transpired with the sale and installation.

The contract you have with the consumer should spell out what part of the transaction is non-refundable (e.g., delivery costs). If this was clearly outlined in your contract, you do not have to refund whatever the consumer agreed was non-refundable.

That said, there can be an argument made by the consumer that what was delivered is not what was ordered and, therefore, even the delivery costs should be refunded.

There is a lot, in other words, to consider.

I do not believe that it will be worth your time or the expense to pursue a defamation claim at this point, because I think far less expensive (and better) options are available to you in resolving this dispute.
 


I think that what you should have done, was have someone in management personally examine the door right away even if it was inconvenient.
My husband, co-owner of our business, personally installed the door. The customer brought up issues with the door at time of install, my husband addressed them, the customer gave him cash and told him he would pay the remaining balance via Paypal. I have already mentioned that our policy is to issue refunds on spot. How is it our fault that he didn't exercise his right to a refund then? He had a personal responsibility to inspect the product and job performed before he paid us but he didn't. We can't address complaints when we do not know they exist. When my husband left the job, the client was fine. Then a couple of days later, he is not fine and doesn't even bother to bring the issues up with us directly before making a claim against us.

Then, you should have offered to fix whatever needed to be fixed in order for the door to fully open the 32 inches. I understand that you did eventually make the offer to do that but it appears that you did not do it promptly. Now you have dug your heels in to the point where the situation cannot be mended.
I agree, my husband should have not left the job that way and because it did happen that way, I apologized to the client.

The problem that you have regarding a defamation case is that what he is complaining about is essentially true.
If we refused him a refund, then what he posted would be true but we did not which makes his statement false.
 
There is a difference between an unhappy customer and a customer who did not get what he paid for. Your customer did not get what he paid for (a door that opened 32 inches) therefore he should be refunded in full. Had it been fully to spec and he just decided he didn't like the finish he chose, or something like that, then its valid to have some portion be non-refundable.
To date, this customer has paid a $125 delivery fee and $375 toward the door which was billed at $450. The door was discounted to him and the installation fee has been waived. The door style is on our website at $510. Our listed delivery fees on our website at approximately $350 to his location. Did I mention that we made three trips out to get this job done? The first time, he said his house was ready for the install, when we went out, it was not even close to being ready for an install. There were no floors which without we could have not done a complete installation anyway.

The door was absolutely built 100% fully to the specs that he provided us. So I guess we are at fault for that as well? He did have a complaint about the finish as well.

Anyway, I'm going to have to disagree with you here. I don't agree that this particular customer should be fully refunded, not at this point. We would be more than glad to refund him for the door but I will be damned if he is going to get the refund and keep the door.

I'm more than likely going to sue him for defamation but it will not be anytime soon but it will certainly be around the time the statue of limitations are out. I am willing to risk losing because this is an issue that is important to me, I feel that we are the ones that were treated unfairly and did all that we could after we made a mistake to correct the situation and that his particular customer is just a meanspirted person.

I do thank everyone for their thoughtful input. I try to answer additional questions and supply updates.
 

Zigner

Senior Member, Non-Attorney
To be clear, and to answer your original question, this is not defamation per se. I tend to doubt that it would even rise to the level of defamation. It seems to me that you've dug your heels in over a relatively small matter just to prove a point. You are a small business owner and are looking at this as a personal affront instead of realizing that it's just the cost of doing business. Your costs, direct and indirect, even if you prevail, are likely to be far in excess of the couple of hundred dollars that it would have taken to settle this matter.
 

Zigner

Senior Member, Non-Attorney
To date, this customer has paid a $125 delivery fee and $375 toward the door which was billed at $450. The door was discounted to him and the installation fee has been waived. The door style is on our website at $510. Our listed delivery fees on our website at approximately $350 to his location. Did I mention that we made three trips out to get this job done? The first time, he said his house was ready for the install, when we went out, it was not even close to being ready for an install. There were no floors which without we could have not done a complete installation anyway.
Two things I'd like to say about this.

First, what it could have cost is irrelevant. You and he agreed on a price.

Second, are you really saying that your husband did an incomplete install instead of refusing to do an improper installation?
 
You may need to send the link again. My private message mailbox was full so I just emptied it.

I will take a look at the review and compare it to what you have said has transpired with the sale and installation.

The contract you have with the consumer should spell out what part of the transaction is non-refundable (e.g., delivery costs). If this was clearly outlined in your contract, you do not have to refund whatever the consumer agreed was non-refundable.

That said, there can be an argument made by the consumer that what was delivered is not what was ordered and, therefore, even the delivery costs should be refunded.

There is a lot, in other words, to consider.

I do not believe that it will be worth your time or the expense to pursue a defamation claim at this point, because I think far less expensive (and better) options are available to you in resolving this dispute.
I understand and thank you for answering those questions. The only iffy area for us is that because I was in the process of developing our website, I do not know what terms and agreements were verbal. We didn't have a contract per se but we do have our terms and conditions posted on our website.

This customer seemed to have an opposition from the get go of doing business by email or text, and preferred the phone. Could it be because he didn't want everything in writing just incase?

The one thing that I think that we have absolutely going for us no matter what is the fact that he lied to Paypal and I can prove that he lied because it is in writing. I think this makes him look bad from a legal standpoint. If you are going to lie in a written statement in an attempt to get a refund, then what else might you like about? Also, could this lie to Paypal be libelous? Now that I'm thinking about it, I think it might.

What is really odd about this whole thing is that he refuses to return the door. What I think may have happened is that he had someone else replace the track for him, which would make the door work just fine and now wants to keep it and get his money to punish us. Since he has been denied a refund twice now, he is angry that he is not getting his way. If I were in his shoes, I would have most certainly let us correct the problem. These doors that we sell are not cheap however I must admit that we have some the best doors for the price around. He would be hardpressed to find a replacement door in the style that he has for less than $700. And we know that if we had the door back, we could resell it for around that price, maybe replacing the paint color first.

If I decide to sue, I will wait a while first to have the damages to show probably until right before the SOL expires.
 

Zigner

Senior Member, Non-Attorney
If I decide to sue, I will wait a while first to have the damages to show probably until right before the SOL expires.
Your legal strategy is flawed as you may have problems based on the doctrine of laches.

You've received a lot of information. It would behoove you to take a moment and try to see this from an outsider's perspective, as well as from a purely business/financial perspective. Best of luck to you.
 
Two things I'd like to say about this.

First, what it could have cost is irrelevant. You and he agreed on a price.

Second, are you really saying that your husband did an incomplete install instead of refusing to do an improper installation?
The price we agreed upon was contingent on us being able to do the job the first time that we came out. It was because we had another job in the area which made it more convenient for us, thus the discounted delivery fee for him. And what we should have done is given him a refund right then. My husband didn't like him because of his attitude in general and the fact that he was on the phone with other people raging that he wasn't going to pay for this and that in regards to his home build.

I guess my husband did an incomplete install and I don't know why he didn't have the proper track length on hand either. And it very well could be that the hardware vendor supplied the wrong track length but this hasn't been looked into. We didn't provide the hardware, only the door on this occasion.
 
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Your legal strategy is flawed as you may have problems based on the doctrine of laches.
How does that apply to the SOL of libel case? I can't file right now because for one, he is out of state, for two, I have to take time to make the right decision and allow him to change/remove his review after the C&D, talk to several attorneys and to you fine folks. I also have business to run and I'm seeking medical care for the stress this situation caused and I'm talking to a counselor about it. I have read where many people wait until near the SOL expiration date before they file so I disagree with you that my legal strategy maybe flawed, sorry.

You've received a lot of information. It would behoove you to take a moment and try to see this from an outsider's perspective, as well as from a purely business/financial perspective. Best of luck to you.
Thank you, you too.
 
Couple more question for the group...

Can we all pretend for a moment that I'm the customer posting, not the biz owner?

So now, this small biz owner has sent me an email asking me to Cease & Desist from making further statements that the business owner deems defamatory and libelous and in addition, has suggested that I seek the advice of an attorney. Now let's pretend that you are the attorney giving advice to the client. What would you tell him that you think is in his best interest to do at this point? Should he update or remove his review and sue me, or leave his review and wait for me to sue?

Question two and I'm linking this thread as an example: https://forum.freeadvice.com/small-claims-courts-24/mobile-rim-service-blotched-job-611853.html
What responsbility did the customer have in paying for a job that he didn't throughly inspect before paying? Surely this lack of responsibility on the customer's part created part of this problem which could have been resolved a while ago had he only "inspected the job" prior to us leaving. Quincy made this statement:
"You had the opportunity to inspect the job prior to paying. You paid, which indicates you accepted his work.
Does this really count for nothing because it counted for something on another post?
 
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Zigner

Senior Member, Non-Attorney
Can we all pretend for a moment that I'm the customer posting, not the biz owner?

So now, this small biz owner has sent me an email asking me to Cease & Desist from making further statements that the business owner deems defamatory and libelous and in addition, has suggested that I seek the advice of an attorney. Now let's pretend that you are the attorney giving advice to the client. What would you tell him that you think is in his best interest to do at this point? Should he update or remove his review and sue me, or leave his review and wait for me to sue?

Question two and I'm linking this thread as an example: https://forum.freeadvice.com/small-claims-courts-24/mobile-rim-service-blotched-job-611853.html
What responsbility did the customer have in paying for a job that he didn't throughly inspect before paying? Surely this lack of responsibility on the customer's part created part of this problem which could have been resolved a while ago had he only "inspected the job" prior to us leaving. Quincy made this statement:

Does really count for nothing because it counted for something on another post?
The difference is that you've ADMITTED that the job wasn't done properly and you are willing to give a refund, but you've dug your heels in on the fine points. In my opinion, you may be cutting off your nose to spite your face here.
 
The difference is that you've ADMITTED that the job wasn't done properly and you are willing to give a refund, but you've dug your heels in on the fine points. In my opinion, you may be cutting off your nose to spite your face here.
Zignar,

You seem like a really nice person but you avoid my questions. It is indeed frustrating! But so be it.

I do think I'm going to update my response to his reviews however to say this:

We are very sorry that you feel that you had a bad experience with our company. We did however offer to correct the issue and we also offered you a refund and that refund still stands. You will receive it as soon as you return the door. To anyone that is reading this, here is a picture of the door. Once Mr. X returns it, we will be selling it a discount of X dollars which is X amount off of our regular retail price. In addition, you can get 15% off our hardware with the purchase of this door. Don't like the color? We can refinish for you if need be in the color of your choice. This door features a magnetic chalkboard which is great for listing the house menu for the day, grocery lists, or a even fun inspirational quotes such as "You can't make everyone happy, no matter how hard you try" or "Don't sweat the small stuff." This is a fantastic deal all the way around!

We offer a wide variety of custom doors and furniture to suit your needs and a zero risk return policy. Come check out our fabulous new selection on our website here: (link to website). And don't miss our fun giveaways going on right now on Facebook. Thank you for considering us and for supporting small local businesses!


I feel sooooo much better already! :D
 

Zigner

Senior Member, Non-Attorney
Zignar,

You seem like a really nice person but you avoid my questions. It is indeed frustrating! But so be it.

I do think I'm going to update my response to his reviews however to say this:

We are very sorry that you feel that you had a bad experience with our company. We did however offer to correct the issue and we also offered you a refund and that refund still stands. You will receive it as soon as you return the door. To anyone that is reading this, here is a picture of the door. Once Mr. X returns it, we will be selling it a discount of X dollars which is X amount off of our regular retail price. In addition, you can get 15% off our hardware with the purchase of this door. Don't like the color? We can refinish for you if need be in the color of your choice. This door features a magnetic chalkboard which is great for listing the house menu for the day, grocery lists, or a even fun inspirational quotes such as "You can't make everyone happy, no matter how hard you try" or "Don't sweat the small stuff." This is a fantastic deal all the way around!

We offer a wide variety of custom doors and furniture to suit your needs and a zero risk return policy. Come check out our fabulous new selection on our website here: (link to website). And don't miss our fun giveaways going on right now on Facebook. Thank you for considering us and for supporting small local businesses!


I feel sooooo much better already! :D
I like the idea of your response to his review. I still feel that you could offer to head out and remove the door, but that's your choice.

As for not answering your questions - I responded to your second question, but chose not to engage in the hypothetical scenario you presented in the first.

You are a passionate small business owner, and that's great - really! But sometimes one needs to step back and look at things from a purely business/financial aspect.
 

quincy

Senior Member
Can we all pretend for a moment that I'm the customer posting, not the biz owner?

So now, this small biz owner has sent me an email asking me to Cease & Desist from making further statements that the business owner deems defamatory and libelous and in addition, has suggested that I seek the advice of an attorney. Now let's pretend that you are the attorney giving advice to the client. What would you tell him that you think is in his best interest to do at this point? Should he update or remove his review and sue me, or leave his review and wait for me to sue?

Question two and I'm linking this thread as an example: https://forum.freeadvice.com/small-claims-courts-24/mobile-rim-service-blotched-job-611853.html
What responsbility did the customer have in paying for a job that he didn't throughly inspect before paying? Surely this lack of responsibility on the customer's part created part of this problem which could have been resolved a while ago had he only "inspected the job" prior to us leaving. Quincy made this statement:

Does really count for nothing because it counted for something on another post?
First, I stand by the statement I made earlier in the small claims thread. :)

Your customer had the opportunity to inspect the door and its installation at the time it was delivered and installed. Instead of arguing the size and the way it was installed, he chose to pay. That was an implied acceptance of the product and the work.

I visited the websites where the reviews appear but I have decided not to sign into the sites to read them in their entirety. You will want an attorney in your area to personally review what was written, beyond the few sentences of each review that were available for me to read without log in.

Your website is an attractive one and your handcrafted products are beautiful. I noticed that out of 5 possible stars, your business has a 4-and-a-half star rating - the missing one-half star obviously is the result of the one negative review you received that was written by your current customer.

It is unfortunate that you had to run into this particular customer. He appears to be one who would not have been satisfied regardless of what your company did or did not do. He appears to be one who will not be satisfied regardless of what your company now does or does not do. All businesses will eventually have customers like this.

To address one of your questions: The statute of limitations for defamation actions in Georgia is one year. When filing a defamation claim in Georgia, you have one year from the time of publication to file suit. In South Carolina (which is where you would probably want to file suit, to avoid a jurisdictional fight), the statute of limitations is 2 years. Although filing in South Carolina technically provides you with an extra year to file, it is generally smart to file suit based on the state's statute of limitations that is shortest (so, for you, that would be the one year period of time to file in either Georgia or South Carolina).

This is if you decide to go ahead and file a defamation suit and I am not at all sure this would be in your best interest.

I believe your best option is to accept that you have a difficult customer and also accept that, in business, the customer is always right even when the customer is clearly wrong. I think your best course of action is to do what the customer is demanding of you and write him off as quickly as possible. The longer the dispute lasts (and, should you file a defamation claim, it could last months and even years), the worse it stands to be for you and your business.

But, in doing what the customer wants, you might want to ask in return that he post a retraction. You can request that he state that you resolved the matter to his satisfaction. A retraction is going to benefit you far more in the future than a defamation claim that you may not be able to support anyway and which, even if supportable, is going to cost you more than you are apt to gain.

Negative reviews have been shown in studies to cause economic losses to the businesses negatively reviewed so I completely understand your concern. It is a legitimate one. I think that if you responded to the customer's negative review professionally, with facts and not emotion, however, that should be enough for most future customers to ignore the one negative review and rely on the positive reviews when deciding whether to do business with you. I like your proposed response to his review. It states facts, shows you are trying to be reasonable, and it offers a bit of humor, which is a nice touch. If a retraction is eventually made, by the way, that will additionally show customers that you are willing to work with them.

You can sit down with an attorney in your area for a thorough review of all facts but I tend to think that a defamation action is not the way to go. What you decide to do about your problematic customer, however, is ultimately a decision you will have to make after weighing all pros and cons.

Good luck.
 
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I like the idea of your response to his review. I still feel that you could offer to head out and remove the door, but that's your choice.

As for not answering your questions - I responded to your second question, but chose not to engage in the hypothetical scenario you presented in the first.

You are a passionate small business owner, and that's great - really! But sometimes one needs to step back and look at things from a purely business/financial aspect.
I really don't know if another offer to head out and fix the door is going to work since he has already rejected the first one and to be quite honest, I would be tempted to go all out Rhonda Rousey on him as soon as I saw him which would not be good. After all is said and done, I strongly feel that we were wronged; that he acted in malice and all he really had to do what let us come out and fix the door. He has already cost us money. We use Paypal for Working Capital right now because we are still so small and I've read horror stories of people being rejected just because of claims and chargebacks and that unravelled me so I'm glad that I fought back and won those and was able to maintain my good standing with them.

I also truly believe based on all of my experience with this person that is he is simply meanspirited and after all, there is no guarantee that even if we would have went back out that he wouldn't have found an other issue and left us negative reviews anyway. There are some people that you will not just make happy, no matter how hard you try. We did the right thing in offering to correct the problem, in offering to refund his the money for return of the door and I'm not going to kiss his ass, even if that is the right thing from a business/financial prospective. Suing him is still not off the table; I have a feeling that he is not done and that this new response may just incite him more. I guess time will tell. But I'm more at peace now than I have been since this whole thing started and with time, maybe I will be able to look at things more objectively and learn something more than I've already learned.

And I'm still interested in all this libel/defamation stuff and continuing the discussion, just in case I need to know it.

Thank you Zigner for all your feedback! It is sincerely appreciated!
 

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