Playback mpd3

Ghasley,
As a coda to my earlier remarks, regarding your statement: "In simple English, the parties obviously had some sort of understanding with which to proceed or EMM would never have sent product."

May I refer you to this statement in the court documents:

"As the proponent of the agreement, Tinn has not met his burden of demonstrating that sufficient facts exist upon which reasonable jurors could find clear and unequivocal proof, by a preponderance of the evidence, that an oral contract existed. Tinn maintains that the parties entered into a binding oral agreement in October 2005, but his own testimony shows they could not have."

Bhobba,
I am a bit shocked to learn of this. But not entirely surprised because I read the legal proceedings between Jonathan Tinn and EMM on the Internet. The matter was decided in favor of EMM. You can Google the court documents if wish to read them. Let's put it this way -- I was not impressed by what I read about Jonathan Tinn.

Before I purchased my AMR DP-777 I was thinking seriously about the Playback Designs MPD-3. I'm glad I didn't make the move in that direction. I have had nothing but the very best relations with the folks at AMR. I can recommend their DP-77 very highly -- as well as their stellar service.

Ghasley,
With all due respect, I believe most of what came out of the case was in favor of EMM. Please note that I stated "I was not impressed by what I read about Jonathan Tinn." If you read the court documents you may understand why. I believe this is relevant here because it speaks to character and may help us to understand the broader context regarding poor customer service at Playback Designs.

Ghasley,
I have no connection with any audio company -- except as a customer. I have no bones to pick with either party here. In fact, the only issue I have ever had with either part is when I had a repair issue with an EMM product. I had it repaired at my own expense before selling it off.

I understand the circumstances of the Tinn vs EMM lawsuit. I have read the court documents from cover to cover.

With all due respect, the court documents show I am not wrong at all. You stated "The case of Tinn vs EMM (please note it was Tinn suing EMM, not the other way)." This is correct, but the fact that Mr. Tinn brought the suit is, ipso facto, proof of nothing at all, per se. In fact, the facts elucidated in the court documents show that essential parts of the judgment actually went against Mr. Tinn. In other words, Mr. Tinn was not able to prove his own claims. This is clearly delineated by the court documents.

I quote from the court documents: "As the proponent of the agreement, Tinn has not met his burden of demonstrating that sufficient facts exist upon which reasonable jurors could find clear and unequivocal proof, by a preponderance of the evidence, that an oral contract existed. Tinn maintains that the parties entered into a binding oral agreement in October 2005, but his own testimony shows they could not have." Mr. Tinn's statements can only be characterized as totally contradictory and confusing -- which is how the court found them.

Please note this paragraph in the court documents:

"As the above discrepancies illustrate, Tinn cannot meet his burden on summary judgment. The court's conclusion in Mukai Living Trust v. Lopez, 199 Or. App. 341, 111 P.3d 1150 (2005) applies with equal force here: "In the present case, nothing in the summary judgment record amounts to evidence from which a rational juror could find that the parties entered into an agreement with terms 'so precise that neither could reasonably misunderstand them.'" Id. at 345 (citation omitted). In this case, no rational juror could find a meeting of the minds on the terms of the alleged oral contract because Tinn himself has not been of one mind about what those terms were. Furthermore, Tinn testified that both he and EMM did not intend to be bound to any agreement without a written contract; given that unrefuted testimony, a rational juror could not find that the parties reached an oral agreement."

All of this cannot reflect well on Mr. Tinn as you will know by reading the details in the court documents. They point out not only to the facts not supporting material claims made by Mr. Tinn, they also point out that Mr. Tinn's memory is woefully deficient as to the major facts in the case. This is clearly shown in this statement in the court documents:

"Thus, Tinn's conflicting testimony about the oral contract's terms is not a basis upon which he may create a question of fact to survive summary judgment." And "Both parties acknowledge the rule that a litigant cannot create a genuine issue of material fact by contradicting prior sworn without explanation" -- which is exactly what the court documents show Mr. Tinn has tried to do in this case.

Further, the court documents state: "This rule does not extend to cases "in which a contradictory affidavit is introduced to explain portions of earlier deposition testimony. Rather, [the rule is] concerned with 'sham' testimony that flatly contradicts earlier testimony in an attempt to 'create' an issue offact and avoid summary judgment." Kennedy, 952 F.2d at 267. On summary judgment, it is for the district court to determine whether the contradictory testimony was given in an honest effort to clarify, or was an intentional alteration designed to create a genuine issue of material fact." Please note the court's reference to " ...'sham' testimony".

Further, the court documents state ""Here, Tinn's testimony presented two diverging sets of contract terms. Important to the instant issue, he does not explain the many material discrepancies between his June 2008 deposition description ofthe contract terms and his May 2008 interrogatory description of those terms. Nor has Tinn explained the contradiction between these conflicting accounts of an oral agreement and his unequivocal deposition testimony ... statements which Tinn did not refute at the time and did not refute on summary judgment."

Further, the court refers to Mr. Tinn intentionally misrepresenting his association with EMM. I quote from the court documents: "Taken together, the continued references to EMM on Tinn's websites, Tinn's failure to respond to potential customers' inquiries, his failure to clarify his relationship with EMM, and his affirmative attempts to steer potential EMM customers to his own product line create a genuine issue of material fact as to whether Tinn falsely associated himself with EMM's mark, in commerce, such as to cause confusion about his affiliation with EMM. Therefore, summary judgment on this claim is inappropriate and Tinn's motion is denied."

In the end, what Mr. Tinn ended up with, according to the conclusion of the case, was the following: " ... the court will permit Tinn to proceed on a quantum meruit theory to recover the compensation, if any, EMM did not pay to him for the services and sales he performed for EMM's benefit during the period of their business relationship."

Mr. Tinn was awarded payment for services rendered that may not already have been paid to him. Other than receiving payment for services rendered, Mr. Tinn was clearly not the victor on the major legal points of this case.

Here is the link to those court documents for those who may be interested in reading them:

http://docs.justia.com/cases/federal/district-courts/oregon/ordce/3:2007cv00963/84055/181/0.pdf?1270846062

I believe the points I have made are well founded in fact based on the court record. The relevance to this thread? Would you have confidence in purchasing an expensive audio product from someone who exhibited these characteristics shown in these court records?

Ghasley,
As far as I am aware, being of retirement age and having time on one's hands is not yet an indictable offense. It seems, by your lengthy rebuttals, that you have as much time on your hands as I have on mine.

You stated, "After reading your last post you, very eloquently I must admit, validated that you materially misrepresented the outcome of the case. In simple English, the parties obviously had some sort of understanding with which to proceed or EMM would never have sent product." With all due respect, I validated nothing of the sort. The issue is not that the two parties had "some sort of understanding". The issue is precisely what that understanding was and if it constituted the basis in law for the claims made by Mr Tinn.

The court clearly decided Mr. Tinn's statements regarding the verbal understanding between himself and EMM did not constitute the basis in law for Mr. Tinn's claims, that Mr. Tinn was perpetually trying to change the "facts" he wished the court to consider as the basis for his suit, and that he could not prove his claims because no matter what version of the facts he presented they did not constitute proof in law. In fact, the court found that a lot of what was presented by Mr. Tinn were "sham facts". In the end, the court essentially threw that part of Mr. Tinn's suit out the window.

Further, you stated "Your introduction of this topic to this thread however will lend doubt of your neutrality to the fair minded person." Neutrality? Fair-minded person? The court was not neutral in its fair-minded judgment against Mr. Tinn. In fact, its judgment was not neutral at all. Its judgment was crystal clear -- that Mr. Tinn had attempted to use smoke and mirrors to build a case against EMM in order to win a judgment against EMM. Further, the court's judgment was that Mr. Tinn had misrepresented many of the facts of the case and that he had furthermore misrepresented his relationship with EMM to customers.

In closing, you have stated that I have mischaracterized the case. A close reading of the case shows that I have done nothing of the sort. A close reading of the case shows I have characterized it exactly as the court did. It is you who have tried to turn the court's judgment in favor of Mr. Tinn -- where the court clearly did not do so.

Regarding your casting aspersions on my reasons for posting this information here, if you would care to contact Mr. Tinn or Mr. Meitner and ask them if they have ever heard of my name their responses will be in the negative. If you ask anyone at their companies if they have ever heard of my name the only person who may answer in the affirmative is the person who processed my repair at EMM.

I feel it is time to put this matter to bed and let the thread resume its intended direction.

Ghasley,
You stated, "Sabai, all I have ever intended to point out is the fact that in your initial post you stated the following:

"The matter was decided in favor of EMM."

which was not completely accurate."

You are correct here. My statement was not accurate on all points. But a close reading of the court documents shows that all major issues were decided in favor of EMM. Mr. Tinn was to receive full compensation for services rendered if that compensation had not yet been received by him.

Regarding your statement that I mischaracterized the court's findings, may I refresh your memory about the court record regarding the lack of any oral agreement, let alone any written agreement, between Mr. Tinn and EMM:

"As the proponent of the agreement, Tinn has not met his burden of demonstrating that sufficient facts exist upon which reasonable jurors could find clear and unequivocal proof, by a preponderance of the evidence, that an oral contract existed. Tinn maintains that the parties entered into a binding oral agreement in October 2005, but his own testimony shows they could not have."

Retirement is good, thanks -- because I am productively busy. Retirement can be the death knell for folks who put their feet up and think that they have arrived. You arrive when the Good Lord decides it is your time. Until then, keep productive and you'll do fine.

Ghasley,
I have no animosity whatsoever against Mr. Tinn. I am looking at this from the point of view of an outsider who knows none of the parties and who might be doing due diligence before buying an expensive product.

Your lawyer may have characterized the lawsuit as "nothing more than a verbal agreement that went over a cliff", but the fact is the court found there was, in fact, no verbal agreement. You stated this fact here: "Again, I dont really give alot of weight to the idea that there was no agreement."

I must say that I find it curious that you do not give "a lot of weight" to the very matter that was at the center of the lawsuit -- and that was decided in favor of EMM. Mr. Tinn's meandering around various sets of self-created facts was the one thing about this lawsuit that I found very disconcerting. He was shown in the court records to have a propensity for making up different sets of facts to suit his purposes.

The fact that you were thrilled with the service you received from Mr. Tinn speaks very well of him in your case.

Ghasley,
There are two things going on here. There is the legal decision that there was no verbal agreement. Then there is the non-legal situation where Mr. Tinn and Mr. Meitner had what actually turned out to be a misunderstanding -- not an understanding. Whatever transpired that enabled Mr. Meitner to ship product, it was nothing more than provisional -- a work in progress than never progressed to the stage of becoming a true agreement. Certainly, it did not constitute a mutual agreement recognized in law. There was no "meeting of minds" here, as the court recognized.