AFFIDAVIT OF JAMES L. SMITH
Being first duly sworn, James Lawrence Smith, dob 11/04/1944, deposes and says as follows:
2012 Toyota Scion xD owned by Donna Jean Oakes
- No substantial problems existed with the subject Toyota Scion xD before taking it to Curtis Hi-Tech. Ms. Oakes drove it to Curtis Hi-Tech for 5k miles oil and filter change.
- I had been checking the oil dipstick since Ms. Oakes bought the Scion over 5 years ago, and it did not use any appreciable oil. I also changed air filters in the Scion and kept the tires inflated and rotated, and all the other fluids topped off, such as brake fluid, distilled battery water, transmission fluid, and 50-50 Toyota coolant containing water, ethylene glycol, diethylene glycol, sebacic acid, and potassium hydroxide.
- After Ms. Oakes no longer had free oil changes at Asheville Hyundai, the next oil change came due – by Scion dashboard notice, “maintenance required” – at 5k more miles on the odometer. I undertook to change the oil and filter, by the Toyota manual, as I have done to cars, motorcycles, and trucks for 50+ years, and aircraft for 30+ years. I bought the best oil I could find –Mobile One SAE OW-20 synthetic (high mileage) — and the filter cartridge rated highest by trusted youtube mechanics like Scotty Kilmer and AMD, the Car Care Nut, a master Toyota mechanic in Illinois — Purolator ONE.
4.. Asheville Keffer Hyundai, according to the service manager, had been using semi-synthetic oil in the Scion… and their own brand filter cartridges. The oil must be low viscosity to accommodate the variable valve timing, which is actuated by jets of oil squirting through the camshaft and cam gear from the Scion’s oil pump. The engine manual calls for synthetic oil, SAE 0W-20. After the engine has 75k miles on it, high-mileage synthetic is recommended by Toyota.
- I used a special gripping tool from NAPA and broke the tool trying to get the oil filter cover off with nothing but elbow grease. The filter cover also had a hex nut on its very end. I did not want to over-wrench the cover and damage the flats on the hex nut. I also noticed the oil drain plug on the sump had been overtightened (or over-torqued), and the flats were damaged, so I had to use too much torque strength to get it loose. It would not budge for me. So I gave up, for the time being. In addition I noticed that the oil filler cap under the hood had NO GASKET and was so tight I had to use a set of large channel lock pliers to loosen it. I used tape and paper on the cap to keep from damaging it since it is plastic.
- I immediately drove out to Hyundai just a mile or so away on Tunnel Rd. and went in to have a talk with the service people. This would have been before the calamity at Curtis Hi-Tech 5k miles later. There was a full office of people and customers. The tall service manager who did not want me complaining in the presence of all those people – he announced he was service manager – came over, tapped me on the shoulder, and took me outside, outside the office where my complaint was lodged outside of the presence of people, and I told him what the problems were, that the oil filter cover and drain plug were so tight I could not remove them with a large Snap-on 10.5″-long 1/2″ socket wrench or 15″ breaker bar.
- He then offered to change the oil again without charge, and I agreed but wanted to go in and watch. He would not let me go into the garage and watch, where the work was done. Instead he brought out his iPhone and showed me a video of the Scion’s oil filter cover overtightened by a mechanic with a long breaker bar tool which had to be 40″ long. That was too much torque, I told him. The torque exerted on the Scion had to be 100 foot/lbs. or more, abusive to the Scion and the oil filter cap.
- There are 2 O-rings that come with the filter cartridge to prevent the cover from loosening, and there are several other industry standard ways besides over-torquing to keep the oil filter cover from backing off. Toyota’s Scion xD manual, the manual for this 2012 Toyota Scion xD, calls for much less torque — 18 ft. lbs. or 25 Newton Meters. 27 ft. lbs. for the oil drain plug, and hand-tightening for a gasketed oil filler cap under the hood. Breaking torque is invariably similar to torque applied to tighten, on these threaded fasteners. The Keffer Hyundai folks just didn’t want anyone else changing oil and filter on that car… the only inference I could draw.
- The next time for oil and filter change came 5k miles later on the odometer, and I again tried to remove the oil filter cover and the oil drain plug. I had bought a new SAE 4-quart container – Mobil One SAE 0W -20 (high mileage), and an extra quart of new oil, new Purolator filter with gaskets, and oil plug and filler cap gaskets, all by the Toyota book. The oil drain plug and oil filter cover would not budge. I was using as usual my 1/2″ drive Snap-on socket wrench, which has always been adequate to remove oil filters or oil filter covers and drain plugs torqued to book specifications. I informed Ms. Oakes and she said she would take it to a recommended garage in Oteen for oil change. I asked her to let me check the garage out before she went there with the Scion. But she went ahead and drove it to Curtis Hi-Tech.
- Next thing I knew a couple of hours later Ms. Oakes and the Scion came home to Kenilworth in a flatbed truck. The driver could not get the Scion into the steep driveway without dragging the bed on the bank so he let the Scion down in the street, cranked it and drove it into the lower driveway. It pumped out at least 2 quarts of oil onto the street before he could get it into the driveway. I raised the hood and engine oil was splashed all over the car, fender, ground, and engine. I checked the oil with the dipstick and there were about 2 quarts left in the sump. So I filled it back up with Mobil One lest someone try to run it with insufficient oil. There was a hole in the side of the engine where the cover for the timing chain is located. I called Curtis Hi-Tech. The lady I talked to went dead-silent for a long moment when I told her I was calling about Ms. Oakes’s Scion. She would not give me her name. Then she said it was recommended that the car not be driven because of an oil leak. She would not tell me anything more and hung up before I could tell her in more detail what happened here, or ask her why a entrance hole had suddenly appeared in the crankcase of Ms. Oakes’s engine.
- I made a photo of the oil which had made a large 8″-wide oily streak on the pavement on Aurora Drive leading into the driveway. That big ugly streak lasted for months afterward.
- The next day and without telling me, Ms. Oakes had the Scion back on a Triple-A flat bed truck and had it taken back to Curtis Hi-Tech, owner Charles Careccia. She said that they had told her they would repair the engine at their expense. But as it turned out they charged her over $1,300, and would not release her car to her until this money was paid. They told her she must pay in cash, which she did. They had her car on their lot blocked in by two other cars. And when I drove the Scion about two miles back to Kenilworth, the “check engine” warning light and trac light came on halfway home. I checked the oil dipstick and oil was more than 2 qts. low, although I heard one of the employees tell Ms. Oakes the car was now safe to drive. It wasn’t. And it acted weak and stumbled, missed, and surged, like it was sick.
- The Scion was now running and idling rough, and not making full power. Mike Byer Auto Repair on Sweeten Creek Rd. recently tuned the engine to idle more smoothly, although it still runs rough and weak. The valve timing on one of the two camshafts is now stuck on retarded, which means it is running inefficiently and fuel-rich, meaning the engine will continue to gum up with sludge.
- A computer plugged into the readout connector read “Code P0012, camshaft position timing- over retarded, (bank one.) Confirmed” [end of code] .” P0012 is the OBD-II generic code indicating the engine control module (ECM) has determined that the intake camshaft timing for bank 1 is more retarded than what the ECM has commanded it be. Those dashboard “check engine” lights have been shining bright ever since, except for 2 times when they were off just a few minutes before coming right back on again, after the Scion had been in two different repair shops for repair. More about that below. Ms. Oakes receiving SS of 1k per month cannot afford to buy another car. This is most probably her last automobile to her name.
- We have had this sick Scion to several different mechanic garages — Only Toyotas on Biltmore Av., Bryan Easler Toyota in Hendersonville, Jimmy’s Automotive in Newbridge, and in mid-November, 2022, to Mike Byer Auto and Truck Repair. What we have learned is that the Scion’s engine is trashed, that it will cost $4,000 for a new engine at a local supply house (or appx $2,000 for one from Japan which is used, if one is ever available) and at least $4,000 to install the engine, when the car cost the following when it was purchased over 5 years ago:
- $8,320 at Asheville Hyundai. The Scion was just recently paid off in payments of $222.17 per month for 60 months, for a total payback of $13,460.29 which included usurious interest at 19.7%.
- Ms. Oakes’s sole income is social security at less than $12,000 per year. She was 66 years old when she took the Scion to Curtis Hi-Tech for oil change, and at least 65 when she bought the car from Keffer Hyundai. They knew she was elderly and in frail health. I had also told them so.
- The Scion now uses a lot of oil, 2 quarts every 250-300 miles, when until it was abused and perforated from something striking the outside of the crankcase at Curtis Hi-Tech, it never used oil in any appreciable amount, never needed oil added between changes. We never had to add oil between changes before the Hi-Tech occurrence. It has just over 138,000 miles on the odometer. Toyotas, including Scions, will easily go 400,000 miles with proper maintenance. I have known several Toyotas that logged over a million miles without engine repair. My friend from the Beech Community, the late Paris Lunsford, logged over 1 million miles on his Toyota truck and made an ad for Toyotas which was on national television.
- The negligence which ruined Ms. Oakes’s 2012 Toyota Scion engine arises not because she knows the details of what happened when her car’s engine took a violent blow which left a big oil-spewing hole in it, while the car was in the exclusive possession of Curtis Hi-Tech. She doesn’t know what happened. All she knows is that she drove the car to Curtis Hi-Tech for an oil change. Not until the car was in their exclusive possession did the severe damage to her engine occur, and she is entitled to the doctrine of proof in court called “res ipsa loquitur.” The thing speaks for itself. Despite res ipsa loquitur available to her, the magistrate ruled against her. She says that there was a large quantity of oil on the pavement when the mechanics pushed her Scion out of the service bay where it had been on a hydraulic lift. She had been staying in the waiting room next door while the work on her car was being done.
- I can tell you what more than likely happened: the lady mechanic used some kind of hammering electric or air tool like an impact driver (which can produce intense torque) when she tried to remove the over-torqued oil filter cover or some other fastener, and the tool or a part of it violently disintegrated or exploded. That engine was operating just fine — and not spraying oil — when it first entered the premises of Curtis Hi-Tech. The thing speaks for itself: res ipsa loquitur. I am wondering if the mechanic was injured by flying metal parts. Ms. Oakes says she remembered that the mechanic who put the car in the service bay and raised it on the hydraulic lift was a woman.
- Before the carelessness and cover-up at Curtis Hi-Tech, Scion gas mileage was in the mid thirties. I checked it regularly with a neat device on the odometer readout in the Scion. Now it never gets out of the twenties. It is a subcompact car with a 4-cylinder engine, 1800 cc displacement and 128 horsepower. The engine has 2 chain-driven overhead cams and 4 valves per cylinder. A high-pressure jet of oil actuates the variable timing of the cam and valves. But if the tiny jet or an internal filter is clogged by sludge or other debris, it quits actuating the variable valve timing.
- I am responsible for putting $10,000, the maximum, in the prayer for damages. I thought Ms. Oakes had paid about $15,000 for her car. So it’s my fault, not hers. She was born in 1952, is now suffering from macular degeneration and her eyesight is failing. That’s why I had to help her fill out her civil complaint. My eyesight is diminishing too, from floaters, astigmatism, cataract, and blurred vision. I currently need to update my eyeglasses. So I cannot read fine print except with a magnifying glass. I was born in 1944 and raised here in WNC, son of a Baptist minister and schoolteacher. My mother was also a schoolteacher.
- Ms. Oakes receives EBT SNAP so she qualifies to sue in forma pauperis, but I could not get her to the courthouse to get her qualified because she was confined to her bed. We were in a panic to get the action filed because the statute of limitations was about to run. Just over two years ago she fell and broke her tibia and fibula and several bones in her ankle, which required surgery. She had to borrow the money and pay the filing and service fees in cash.
- Having done more research I have also recently learned that this Scion xD likely had two previous owners, not one as the Hyundai salesmen told us the day Ms. Oakes bought it at Asheville Hyundai. I had asked the salesmen to let us take the car to a mechanic to inspect. They refused. They gave us one, and only one, Carfax paper on the chassis of the car which noted a small repaired damage to the Scion’s body. They gave us NO Carfax documents on the engine of the Scion, although I asked them. Three of these salesmen said there were none. I have since found that there were numerous Carfax documents on the engine (or engines). One or more of the mechanics at Curtis Hi-Tech told Ms. Oakes that the parts they ordered to repair the Scion after the engine crankcase received its gaping hole. These parts would not fit because the engine in the Scion was NOT the engine which had been in the Scion when it was new. So, they said, they had to buy used parts, which were more than likely defective and/or were gummed up with sludge. I doubted that what the people of Curtis Hi-Tech said was so and told her I doubted it, but I now, after more research, suspect that they were telling her, at least partly, the truth, despite the fact they had told so many other falsehoods to her.
- Recently I saw a file which contained both body AND engine Carfaxes on the subject Scion. One of these files was in the possession of a man who said he was the present service manager. I saw that file both during the hearing with Judge Joseph Knight and at a later calendar call, one of two I attended in the new courthouse, first with Judge Kepple and the second with Judge Clontz.
- At the first calendar call, I could not bring Ms. Oakes because I had been crippled trying to get Ms. Oakes into the courtroom for the trial before Judge Knight. The struggle I had with her wheelchair damaged my knees and my hips and shoulders. First of all, the incline from the courthouse doors to the parking lot was so steep my knees and hip joints were strained and damaged. My shoulders are both damaged with torn rotator cuffs. For days after that hearing I could not walk without crutches, and after that, walked with intense pain. At the suggestion of one of the deputy clerks and the trial court administrator I obtained a general statutory power of attorney so I could at least announce to Judge Kepple, in Ms. Oakes’s absence that I was appearing for her after her internist, Dr. Charles Sims, wrote a letter advising her not to go to the courthouse for several reasons, one being her frail health and another that she needed a 2-week interim for her completed immunity after her last covid-19 booster shot. This letter, I believe is in the file, and I sent copies of it to the administrator and attorneys. So when the case was called by Judge Kepple, Attorney Zephyr Sullyvan was not present, but Attorney Matthew Roberson was present with a representative of Asheville Hyundai carrying a thick file with Carfax and other documents in it, engine Carfaxes accoed in on one side of the file and chassis Carfaxes accoed on the other side. I requested to be heard, gave my name when requested, and told the judge that I was appearing as attorney in fact for Ms. Oakes, that she had requested a jury trial, and asked that the case be kept on the jury calendar. The clerk for Judge Knight had told me that we had not requested a jury trial, although we certainly had. Judge Kepple agreed that this was a case for the jury.
- But when the next calendar came to us in an odd sort of a way and just a few days before the calendar call was set on the calendar for January 31, 2003, it specified “non-jury.” We got an empty envelope from the clerk’s office in the mail and then about a week later a calendar without an envelope in the mailbox. It looked like someone had opened our mail. I began calling the trial court administrator, Ms. Dornetta Elkins, and she stated Ms. Oakes had waived a jury trial. That was not accurate because I remember clearly writing on the face of the notice of appeal “jury trial requested.” I had already filed Ms.Oakes’s notice of appeal requesting jury trial the date Judge Knight ruled against Ms. Oakes, and then filed copies of that same document within 10 days of the verdict by Judge Knight and sent copies by mail to Attorneys Sullivan and Roberson. Later one of the attorneys for the defendants demanded a jury trial. If these ministerial acts for disabled Ms. Oakes, who asked me to do her leg work, were unlawful, then I plead guilty.
- I again called Ms. Elkins and explained to her that Ms. Oakes was in such a state of health and bowel incontinence that she could not appear and she said to file another letter from Ms. Oakes’s physician, Dr. Charles Sims, so I made a photo of the letter and sent it to Ms. Elkins by email on Monday before calendar call on Tuesday, the 31st. I also mailed the attorneys copies of the most recent letter from Dr. Sims. I had told Ms. Elkins that I could not draft documents without getting cited for practicing law without a license. She said that she understood. So I thought we were in the clear for jury trial, and I had drawn up a narrative document with my affidavit to be used in a motion for summary judgment to be filed by Ms. Oakes with her affidavit and motion.
- On the 31st of January I went to the courthouse, lame and in constant pain, and after first going to courtroom 2A found by talking to the bailiff that I needed to be in courtroom 3A. I got to courtroom 3A before Judge Clontz called the case. Attorneys Sullivan and Robertson were in the courtroom and Judge Clontz was on the bench. When I heard the names of the parties called, Attorney Sullivan spoke in a loud voice that I could hear that she wanted to have the case dismissed because “Ms. Oakes is not here.” I heard Judge Clontz also talking about dismissal, so I asked, “Your honor, may I be heard?” I don’t know what I did or said to cause such a racket, but the bailiff yelled, within just a few feet of my right ear, which is the only ear I can hear with much at all, “NOOOO!” Then Judge Clontz hollered “No!” and the bailiff, Alex Levan, both began to shout so loud and their voices ran together that I could not understand what they were saying. Then the bailiff shouted to me “Stand up!” So I struggled to get up and Judge Clontz asked me “Who’re you?” and began shouting (without the interruptions from Deputy Levan) “Mr. Smith, you know you cannot do this! And he said “You know better than this that you cannot do what you did.” Well, no, I did NOT know since all I was doing was doing leg work informing the court that the plaintiff was at this time bedridden and unable to walk. That was merely a ministerial act.
- The inference I drew from Judge Clontz at this point was that Ms. Elkins had no authority to advise me what to do, being to send a letter from Ms. Oakes’s physician, Dr. Charles Sims, as reason why she could not be there on the 31st of January, 23. I could only conclude that what the judge was doing was threatening that I had done acts called unauthorized practice of law. That was the gist of his obvious hostility. In other words he was already dead-set on throwing out, arbitrarily, Ms. Oakes’s complaint for the destruction of her automobile’s engine by torts of two defendants. Two huge law firms, McAngus, Goudylok, and Coorie, a multistate law firm with offices all over the South and then some, on the one hand, and the Asheville biglaw firm of McGuire, Wood, and Bissette, on the other hand, had triumphed again by an assault on the rights of a sickly, elderly woman confined to her bed, after two defendants had by aggravated torts deceived her, oppressed her, trashed her humble little automobile and then ran roughshod over her at the courthouse. And by the way, what the defendants had done was to commit felonies against this aged woman, having been born in Asheville in 1952 and now 70 years old. The offenses are called “elder abuse.”
- I don’t remember how I answered except to say that I did what Ms. Elkins said to do. Then he loudly uttered more words I could not hear or understand. Unlike courtroom 2A, the acoustics in 3A courtroom are bad. The judge then called the attorneys up to his bench and they began chatting and laughing as he showed them, as they bent over and huddled close to him, loose papers from the file, including a copy of Dr. Sims’s letter and my email to Ms. Elkins. He spoke loud enough that I did hear him utter the word “disbarred” with his eyes on me and a smirk on his face. Which was a malicious slander. He’s done similar things before and is a serial offender of the canons of ethics. Shortly Judge Clontz gruffly beckoned me out of the courtroom hollering “Mr. Smith, you’re free to go!” At this point I was speechless and felt threatened. The bailiff then sprang from his seat and rushed around the rows of benches to my standing position and lunged at me as if he was going to lay violent hands on me, threw the door open with a clatter and told me, “It’s been dismissed. You’re free to go.” I wanted to stay for the rest of the “service,” but felt that I’d better get out before I was physically thrown out. The bailiff waved his arm to the open doorway he had thrown open with such muscular force and made it clear he wanted me out of the courtroom. “You’re dismissed; you’re free to go.” I did not wish to be touched or jostled by this angry, but much younger man with his glaring eyes and inflamed countenance, so I hurried through the double doors and left. I wish I had stayed and suffered the consequences. My, don’t the elderly get so disrespected and despised. I wish I could say it was fun being old, at 78. So the NC Constitution which solemnly announces (Section 19) “All courts shall be open,” is no longer in effect. I wanted to stay and watch a while because it looked to me like every pro se litigant in the courtroom was getting thrown out of court.
- Now let me tell you my experience with Judge Clontz, who has no business on the bench…and is a serial offender who cavalierly violates the canons of judicial ethics as he did in State vs Jermaine Logan by binding Logan over to Superior Court without his attorney. I had insulted him and estates clerk, Elaine Sams, in the clerk’s office long before he went to law school. I knew he had blood in his eye for me when in 2011 he unlawfully ordered me to show cause in a NCGS 50C action where he had signed a TRO ordering me to stay away (which I would have done without being ordered) from illegal AIRBNB neighbor Martha Grist. She had not even requested a TRO. Before I even knew what was going on and wondering why the deputies would declare they were ordered by Judge Clontz to confiscate my firearms, he found I had violated his order and issued a shocking contempt order for me to show cause why I should not be found in contempt, the punishment for which is imprisonment for 6 months and a $5,000 fine. In other words before I could have violated his ex parte restraining order signed after an unrecorded hearing, Ms. Grist was already in the courthouse requesting Judge Clontz to find me in contempt of court. It was a shock and distressing, to say the least. And there is no firearms clause in NCGS 50-C. Firearms confiscation is in 50B but not in 50C. 29 times with the eager,vindictive help of Judge Clontz and others in the courthouse, I went to court under threat of arrest if I had not appeared in the cases initiated by Martha Grist and her courthouse friends. So I kept defending and was never ultimately found guilty.
- Later, after Grist had filed and served a second complaint for a restraining order, when I mailed Martha Grist interrogatories and requests for admissions, he struck as null and void all my civil discovery by claiming falsely that I had ignored Grist’s attorney Marion Groat, now Marion Parsons, who was prominently listed at the top of Clontz’s reelection campaign committee. I had mailed the civil discovery to Grist, he said, when I should have sent it to Attorney Marion Groat. At the time I had no idea Grist was represented by Marion Groat. I told him so, and I am sure he knew I spoke truthfully, but that made no difference. I asked him to recuse himself and he replied “Mr. Smith, I have never read your blog.” Then he put Attorney Groat up to calling me a “disbarred lawyer” in Grist’s pleadings, knowing that libel in pleadings cannot be the subject of a lawsuit for libel. So there in those pleadings I am called a disbarred lawyer, a despicable lie. I filed a lawsuit but it was of course dismissed as to Groat by a judge from Henderson County. Look at the Grist vs. Smith files. They are a curious circus of injustice and chicanery. Grist had even hired someone evil, and with no law degree, to help her file a response to her malicious libel. This anonymous illegal practitioner was illiterate and claimed “contributory negligence” as a defense to malicious libel. Meanwhile, every time I came to the courthouse the sheriff, Van Duncan, had three burly deputies follow me everywhere I went, even to the law library where I studied the law to resist these sadistic haters abusing police powers.
- Now I suggest that in the instant matter Judge Clontz should have disqualified himself on his own motion. And I am asking him now to withdraw his dismissal and recuse himself because his impartiality does not exist and is otherwise reasonably questionable. His impartiality did not exist based on the fact he talked to me like I was committing some sort of violation of law when all I did was, following the directions of the trial court administrator, Dornetta Elkins, send a copy of the letter written by Dr. Charles Sims, that Ms. Donna Oakes, who is bedridden, losing her eyesight, and unable to walk, could not appear in his courtroom. These were ministerial acts, not the acts of a lawyer. And I performed these ministerial acts as the attorney in fact of plaintiff, Donna Jean Oakes based on the advice of Ms. Elkins.
- If the order of dismissal is not set aside, Ms. Oakes intends to appeal to the NC Court of Appeals.
- And if you’d like to know a few of his honor’s judicial violations, how he transforms due process of law into a sham, go to alt.appalachian (Google Groups) and plug “Clontz” into the search engine. Falsus in uno, falsus in omnibus. The violations he has committed in the few matters I have had before him suggest he routinely, and without shame, perverts the course of justice, if not just to “make a point.”
And further, affiant saith naught.
Sworn to and subscribed before me this _ day of February, 2023.
________________________________________ Notary Public
My commission expires: ______________________________