CHARLESTON – Darryl Smith, who filed a class action lawsuit against C&O Motors after buying a Daewoo automobile there, plans to take the dealer to trial both as an individual and as representative of a class of Daewoo buyers.

Smith's attorney, Harry Bell of Charleston, said Smith would represent a class in a claim that C&O Motors violated the state Unfair and Deceptive Acts and Practices law by selling about 90 Daewoo autos while the automaker approached bankruptcy.

Bell said Smith would pursue a claim of fraud and misrepresentation individually.

C&O Motors reacted to Smith's dual role by asking Kanawha County Circuit Judge Paul Zakaib Jr., to bifurcate the claims and conduct two trials.

Defense attorney Allyson Griffith of Charleston wrote, "There is no way that these claims can be fairly tried together without confusion, disorder and prejudice."

She wrote, "As soon as Smith walks his own path and asserts his conflicting and inconsistent claims, he is no longer an appropriate class representative."

She wrote that Smith's individual claim and the class claim would involve different theories, remedies and elements of proof.

In response Bell's associate, Tim Yianne, wrote that, "…bifurcation would serve no purpose other than to waste judicial economy and force Plaintiff to expend considerable resources litigating two jury trials."

He wrote that, "…the Court can simply instruct the jury that there are two claims being advanced –- one on behalf of the class -– the other individually."

He wrote that, "…the Court can instruct the jury as to the elements and burdens of proof for the respective claims."

He wrote that the jury could use a special verdict form. He proposed a form with three yes or no questions and five blanks with dollar signs for jurors to fill in.

He wrote that Smith would present the same evidence and witnesses on both claims.

He wrote that the claims would not conflict because the class claim would require lesser elements of proof than Smith's individual claim.

Zakaib postponed the trial in July. He had set it for July 23, but a criminal case took priority.

Zakaib pushed the trial back to Sept. 11, but in a July 26 letter C&O Motors attorney Mark Swartz asked him to set it for January.

Swartz wrote, "I argued against setting this case for a trial date on which we knew my co-counsel would be out of the country."

Swartz attached a July 21 letter he received from Gene Walker of C&O Motors, stating that attorney Crystal Stump would be in Europe on the trial date.

Walker wrote to Swartz that he did not want to go to trial without the two of them.

Bell wrote to Zakaib on July 27 that, "C&O's shameless attempt to again postpone this trial to 2007, considering it is a 2002 case, should not be allowed."

He wrote, "Mr. Smith, who as you know is suffering from cancer, desires a prompt resolution to this matter…"

He wrote that Stump had not been actively involved in the case and had not worked on it.

He wrote that he could not prepare for the July 23 trial date due to the birth of his child, but that he planned to let Yianne try the case to prevent a delay.

Bell told The Record that when C&O Motors deposed Smith in 2003, Smith flew 6,000 miles to keep the appointment.

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