Complaint Review: Apollo Engines - HOUSTON Texas

Plaintiff State of Texas has reason to believe that Defendants have engaged in, and will
continue to engage in the unlawful practices set forth below. Plaintiff State of Texas has reason to
believe Defendants have caused and will cause immediate, irreparable injury, loss and damage to the
State of Texas and its citizens, and will also cause adverse effects to legitimate business enterprises
which lawfully conduct trade and commerce in this State. Therefore, the Consumer Protection
Division of the Office of the Attorney General of the State of Texas believes and is of the opinion
that these proceedings are in the public interest.
TRADE AND COMMERCE
8. Defendants have, at all times described below, engaged in conduct constituting trade and
commerce, as those terms are defined in 17.45(6) of the DTPA.
State of Texas v. ASAP Motors & Parts Systems, Inc. et al.
Plaintiffs Original Petition
Page 4
ACTS OF AGENTS
9. Defendant ASAP MOTORS & PARTS SYSTEMS, INC., is a Texas Corporation with
headquarters in Houston, Texas. Defendants Brian McCutcheon and John Scott Sandell are officers
and principals of ASAP MOTORS & PARTS SYSTEMS, INC. (
Exhibit 1, Investigators
Affidavit, [p. 3, para. 10] & Exhibit 12, Texas Secretary of State Articles of Incorporation
records).
10. Defendants Brian McCutcheon and John Scott Sandell, jointly and severally, participated
directly in the false, misleading and deceptive acts or practices and had the authority to control them.
Further, each Defendant had actual knowledge of material misrepresentations, was aware of the
actual content of the false and misleading solicitations and authorized and/or failed to prohibit same.
11. Whenever in this petition it is alleged that a Defendant did any act, it is meant that:
A. The Defendant performed or participated in the act, or
B. The Defendants officers, agents, trustees or employees performed or participated in
the act on behalf of and under the authority of the Defendant.
NOTICE BEFORE SUIT NOT GIVEN
12. Pursuant to 17.47(a) of the Deceptive Trade Practices Act, contact has not been made with
the Defendants herein to inform them of the unlawful conduct alleged herein, for the reason that the
Plaintiff is of the opinion that there is good cause to believe that such an emergency exists that
immediate and irreparable injury, loss or damage would occur as a result of such delay in obtaining
a temporary restraining order, and that Defendants would dissipate or secrete assets if prior notice
of this suit were given.
State of Texas v. ASAP Motors & Parts Systems, Inc. et al.
Plaintiffs Original Petition
Page 5
SPECIFIC FACTUAL ALLEGATIONS
ASAP MOTORS DECEPTIVE ADVERTISING
13. Defendants are engaged in the sale and distribution of used automobile engines and
transmissions. Defendants advertise via a website (
www.asapmotors.com), Yellow Pages and
Yellow Book directories, flyers, and contact consumers through other websites selling used engines
and transmissions (e.g.,
www.junkyarddog.com, www.qualityusedengines.com). (Exhibit 1,
Investigators Affidavit, [pp. 1-2, paras. 3-5], Exhibit 9, Prater Affidavit, [p. 1, para. 2], Exhibit
11 Neisser Affidavit, [p. 1, para. 2], & Exhibit 17, ASAP website.
).
14. Defendants falsely represent to consumers that:
a) They sell quality replacement engines and transmissions with low mileage (
Exhibit
17, ASAP website
& Exhibit 10, Larry Smith Affidavit, [p. 1, para. 2]);
cb) Engines and transmissions are quality tested, rigorously inspected and
compression tested (
Exhibit 17, ASAP website, & Exhibit 4, Sinex Affidavit [p.
1, para 2.])
;
c) Engines and transmissions are leak down tested, hot run tested, inspected, cylinder
tested, and steam cleaned before being shipped to the consumer (
Exhibit 2, Gordon
Affidavit [p. 1, para. 3] & Exhibit 9, Prater Affidavit [p. 3, para 3.])
;
d) Engines and transmissions available include Japanese and European motors and
transmissions, ASAP MOTORS is the Japanese Direct motor headquarters with
engines that arrive directly from Japan, and Japanese motors in its inventory are
quality low mileage units due to a stringent vehicle inspection process called the
State of Texas v. ASAP Motors & Parts Systems, Inc. et al.
Plaintiffs Original Petition
Page 6
Shaken that these engines and transmissions undergo in Japan, (
Exhibit 17, ASAP
website)
;
e) Japanese motors sold are not merely replacement engines, but in fact can improve
power and reliability of a consumers vehicle (
Exhibit 17, ASAP website);
f) That they sell quality used engines that are ready for immediate installation without
any other required parts (
Exhibit 17, ASAP website); and
g) They are able to ship any order within days, sometimes even overnight. (
Exhibit 17,
ASAP website & Exhibit 4, Sinex Affidavit, [p. 1, para. 3].
)
DEFENDANTS DECEPTIVE REPRESENTATIONS TO CONSUMERS
15. Defendants direct, authorize and encourage their employees to make certain false
representations when soliciting business. Consumers (some of them experienced mechanics) report
that they purchase from Defendants, instead of other businesses, because they are looking for a
specific year and model type of engine or transmission or because they need a motor or engine that
is hard to find due to limited availability or compatibility.
(Exhibit 2, Gordon Affidavit, [p. 1, para.
2], Exhibit 3, Pisz, [p. 1, para. 3], Exhibit 5, Doskey Affidavit, [p. 1, para. 3], Exhibit 7,
Brannon Affidavit, [p. 1, paras. 2-4]
, & Exhibit 8, Allen Affidavit, [p. 1, para. 2]). Defendants
claim to have the particular engine or transmission in stock. Further, consumers report that when
they contact or are contacted by Defendants to order an engine or transmission, Defendants claim
that the used motors or transmissions for sale have certain
characteristics, including that they:
a) are tested and inspected by Defendants, including leak testing, hot run testing, and
cylinder testing (
Exhibit 2, Gordon Affidavit, [p. 1, para. 3] & Exhibit 11,
State of Texas v. ASAP Motors & Parts Systems, Inc. et al.
Plaintiffs Original Petition
Page 7
Neisser Affidavit, [p. 1, para. 3]
);
b) are low mileage (
Exhibit 6, Chou Yung-Sen Affidavit, [p. 1, para. 3], Exhibit 8,
Allen Affidavit, [p. 1, para. 2] & Exhibit 9, Prater Affidavit, [p. 1, para. 3]);
c) are imported from Japan if the engine ordered is Japanese (
Exhibit 4, Sinex
Affidavit, [p.1, para. 2], Exhibit 5, Doskey Affidavit, [p. 1, para. 2-3]
& Exhibit
8, Allen Affidavit, [p. 1, para. 2],
);
d) that upon receipt of full payment, the unit will be delivered within days and that
Defendants can even ship some units the same day. (
Exhibit 2, Gordon Affidavit,
[p. 2, para. 3]
& Exhibit 4, Sinex Affidvit, [p. 1, para. 3]);
e) are plug n play meaning they will plug into a consumers vehicle and run without
any other required parts.
(Exhibit 10, Larry Smith Affidavit, [p. 1, para. 2]).
DEFENDANTS DELIVER INCORRECT, DEFECTIVE AND DAMAGED UNITS
16. Many consumers that receive their order find upon inspection that Defendants delivered
a motor or transmission very different from what the consumer ordered. (
Exhibit 8, Allen Affidavit,
[p. 1, para. 3] & Exhibit 2, Gordon Affidavit, [p. 1, para. 4].
). Consumers call Defendants
about this mistake, and are told that Defendants will pick up the wrong motor and drop off the
correct one at the same time. However, when Defendants arrange for the wrong engine to be picked
up, it does not deliver the correct motor or sends another damaged or defective motor (
Exhibit 2,
Gordon Affidavit, [p. 1, paras. 4-6].
).
17. Some consumers, after receiving their order, find that upon inspection and before they
attempt installation, Defendants deliver a motor or transmission that is
defective or damaged,
State of Texas v. ASAP Motors & Parts Systems, Inc. et al.
Plaintiffs Original Petition
Page 8
(
Exhibit 3, Pisz Affidavit, [p. 1, paras. 5-6].), VIN numbers missing or scratched off, making
it difficult to trace the origin of the motor (
Exhibit 8, Allen Affidavit, [p. 1, para. 4]), or a unit
with
much higher mileage than advertised. (Exhibit 6, Chou Yung-Sen Affidavit, [p. 1, para.
3].
).
18. Other consumers find, immediately after installation, that ASAP MOTORS has delivered a
transmission that does not work, a motor that does not start at all, a unit that only starts after missing
parts are replaced, a unit that has
rusted valves or damaged timing gears (Exhibit 3, Pisz
Affidavit, [p. 1, para. 6] & Exhibit 6, Chou Yung-Sen Affidavit, [p. 1, para. 3].
), or holes in the
gasket cover and water in the oil pan
(Exhibit 2, Gordon Affidavit, [p. 1, para. 6]), or that
makes
loud or unusual noises when started (Exhibit 2, Gordon Affidavit, [p. 1, para. 6], Exhibit
4, Sinex Affidavit [p. 2, para. 11], & Exhibit 10, Larry Smith Affidavit, [p. 1, para. 6])
, or stops
working
after a relatively short period of time. (Exhibit 5, Doskey Affidavit [p.1, para. 5].).
19. Consumers and their mechanics find that Defendants are not, as it claims, testing motors
and transmissions before shipping them to consumers. (
Exhibit 2, Gordon Affidavit, [p. 1, para.
7], Exhibit 10, Larry Smith Affidavit, [p. 2, para. 8].).
DELIVERY & RETURN PROBLEMS
20. Defendants require that a consumer pay the full charge before the unit is shipped. However,
after payment is received, consumers commonly experience significant delays in delivery. When
consumers call about these delays, Defendants resort to a series of delay tactics, including repeatedly
telling the consumer to call back, putting the consumer on hold for extended periods of time,
representing that the unit has been shipped when it has not, or telling the consumer that the unit is not
State of Texas v. ASAP Motors & Parts Systems, Inc. et al.
Plaintiffs Original Petition