Small Claims Court Question

[James Boston]

I'm thinking of taking a guy to small claims court and wanted any possible advice before I spend money on a lawyer. Here is the sequence of events.

1) I hire a guy to put travertine counter tops in the bathrooms of a house I'm building.
2) Problems ensue, he finally finishes, I pay him in full out of relief the project is done (MY BIGGEST MISTAKE), and I eventually realize what a terrible job he did.
3) Call the guy, he acknowledges bad job, and agrees to fix it.
4) Guy goes AWOL.

I'm now considering hiring someone else to replace the couter tops entirely, but I still want some money back from the guy who botched the job.

Do I need to wait until I prove he did a bad job before proceeding with replacement? What do I sue him for? Replacement costs? His bill less the value of what he screwed up?

Any advice is appreciated.

[El Diablo]

JB,

I imagine you'd sue him for replacement costs. First step I'd take is leave a message telling him that you are filing a claim in small claims court on xxx date if he doesn't commit in writing to fixing his work by yyy date.

[Mike Gallo]

James,

You do not need an attorney to file a claim in small claims court.

Does this person own his own company or did you have someone do the work that freelances in masonry as a side business?

Anyone can sue anyone, however collecting on the judgement will prove difficult especially if he is not bonded or insured.

Did you get an estimate from him prior to the start of work?

This... 4) Guy goes AWOL poses your biggest problem. Even if you obtain a money judgement the chances are slim to none of recovering if he becomes a skip (industry term for defendant who goes AWOL)

FYI I work in the credit and collections industry.

If you like you can send me a pm.

[pseudo t-bone]

you probably don't need a lawyer. in fact, in california you're not allowed to have a lawyer represent you in small claims court - not sure about alabama.

if you have an address for the guy, send a letter giving him a deadline to do the work. write in the letter that if he doesn't make arrangements to do the work by the deadline, you will hire someone else to do the work, then bring a small claims action to collect what you paid the new contractor.

if he doesn't respond to your letter, then do exactly what you said you'd do in the letter.

[J.A.Sucker]

You can't have an attorney present at small claims court in any state that I'm aware of. You can have one help you with your case, but they'd be of no use here.

What should you sue him for? At best, you will have the new guy come out and fix his work. He'll give you a bill and you can sue for that. If the new guy wants to tear everything out and start over, you might have a bit of a problem establishing what the damages are, but something along the lines of labor minus materials/markups is probably right. The labor should be similar to what the original guy quoted you for.

At this point, all you need to do is write up a complaint on the small claims court (which you can get online). If you have any questions, ask the court clerks - they are ALWAYS super useful. Once you finalize your complaint, you pay the clerk filing fee (probably 30 bucks) and you will get a courtdate or range of dates at this point (a month in the future, or so). Make sure to have a clerk check out your complaint to make sure everything is OK.

Then you're going to have to serve him the papers for your court date. If you don't know where to find him, you're SOL. You'll have to pay a process server something like 50 bucks, but many of them are really clever at finding people.

Then you go to court and Judge Whopner comes out and you make your case. You better have lots of receipts, photos, and quotes for the new work. Also, if you can get another contractor to give a signed, notarized statement about the previous guy's work being terrible, this might help establish a poor line of work (along with your pictures). Better yet, maybe this guy will come to court with you.

That's all you need to do. It's not that hard, but you have to have your stuff together to stand a chance. It's a lot of aggrevation so you need to ask yourself whether it's worth suing for. Unless you really want to do it out of principle or are hard up for the money, I wouldn't go for less than a grand.

[James Boston]

To answer a few questions:

1) Yes, he owns his own company. I don't know if he's bonded.
2) I'm looking at about $2,000.
3) It's almost certainly a full replacement job. The guy used crappy slabs of travertine, so it's all dinged up.
4) Photos are tricky because it's kind of hard to photograph chips in a surface or around the sink.
5) Numerous people have told how bad of a job it is, but I don't think the guys in that industry like to openly talk s**t about each other, so a notarized statement about his bad work is likely going to be hard to obtain.
6) I know I can't take a lawyer to court. I just would have had to pay one to tell me what to do to prep for it, hence this post.

Thanks for the replies everyone.

[En Passant]

1. Yes, a lawyer can't be with you in small claims court. However, you can certainly get a lawyer for his counsel before and after the court date.

2. The judge is going to ask you why you decided to pay him the full amount if he did a poor job. It's going to be your word against his. But, if you do have some type of evidence proving he acknowledged doing a bad job and agrees to fix it, then you should be ok.

[Sardo Numspa]

[ QUOTE ]
1. Yes, a lawyer can't be with you in small claims court. However, you can certainly get a lawyer for his counsel before and after the court date.


[/ QUOTE ]

this just isn't true in every jurisdiction in the entire country. its not true in florida and many other states in which i know attorney's in my line of work that the majority of their practises are in small claims court. i'm in small claims court three days a week and people have attorney's representing them all the time.

i see cases like this pretty often and the problem you are going to have is that you are going to have to have an expert testify about the job and what wrong with it and what should have been or what needs to be done. you're not going to be able to just show up and say "judge, he did a [censored] job, i gots me some pictures, i want me money"

an expert can be anyone the court recognizes as an expert so it can really be just anyone who has an amount of years in the business who can testify what is reasonable and customary in the industry. this is basic evidence. affidavits, estimates, scribbles on paper, none of that is evidence. you will need testimony from an independent expert for the court to consider it to be competent credible evidence of your damages,

like i said, i've seen dozens of cases like this and what usually happens is the court will have some sort of mediation process where they try to get the parties to settle. if that doesn't work, you get a trial. the rules of evidence still apply in small claims so you will be bound by them when presenting your case. as the plaintiff, its your burden to prove your case, which even if you get an expert, sounds like it will be his word against your experts word.

then there's collecting on the judgment if you manage to get it. was he operating as a corp, or as a proprietorship? if its a corp, you can only get a judgment against the corp, which if its a some guy with a truck and some tools, good luck getting anything. collecting judgments is a large part of my practice and i can tell you that unless they have something to lose, a judgment in many cases is just a piece of paper.

if you do sue, your best case senario is to have him served which may or may not wake him up. sometimes people are petrified of the court system and it will spur them to action. sometimes people wipe their asses with court papers and don't do anything. if they respond to the suit maybe you can settle it. if they dont, you may get a default judgment, but then again there's collecting. the good news is that small claims cases usually dont cost alot so it may be worth the gamble. if you can get a judgment against him personally, it will show up on his credit and judgments last years. we get payoff requests for judgments in my office every week that are 4 and 5 years old.

edit: just to clarify, this is how small claims works in Florida. But i'm pretty sure the evidence codes with be very similar in most states. Just keep in mind that you have to prove liability and damages. The judge is going to need something to make a ruling on, and in most jurisdictions i am aware of, at least in florida this is true, sworn statements, estimates and the like are not admissible as evidence. you will need testimony to admit the estimates or any other documents you want the judge to consider as evidence.

[supafrey]

^^^ Great post. I'm a little shaky about sworn estimates being inadmissable, though. From my undertstanding, the vast majority of Judges have no idea as to the reasonable cost/damages that problems cause, which is what the estimates are for.

Really your only good bet is to document the problem as much as possible, get some "expert" to look it over that is willing to spend a day in court (friends help for this, obv), then redo the bathroom and gamble on the idea of getting recompensated for it.

Remember that the courts are there to compensate you for damages, NOT pre-emptively fix your problems for you... You're likely going to have "lose something" (i.e. redo the work AFTER documentating/expert) before you can get compensated.

[jeffnc]

[ QUOTE ]
Anyone can sue anyone, however collecting on the judgement will prove difficult

[/ QUOTE ]

QFT. I've won several "cases", and still managed to get ripped off every time.

Once, had some work done on the house. It was a disaster and I went to small claims court. They never showed up (that's how slack they are.) Judge awarded me the "winner". Piece of cake, right? No, they never had to pay. There was no real penalty if they didn't. They just never answered the letter they received from court.

For me to pursue, I had to file "execution of judgement". In layman's terms this means "they were penalized, now actually do the penalty. Funny, huh? Of course that cost me $100. A sheriff went out to their residence to "collect". They said they didn't have the money. The sheriff looked around and saw some stuff, but he couldn't take it. They're not allowed to take
- cars that could be used for the guy to get to work
- any items that was related to his business
- any item that they felt couldn't be easily auctioned off for easy profit (like a couch)

So, the guy's business had a "lien" on it which meant it was very difficult for him to get business loans. Big deal. The business went under a year later and he never had to pay me.

In another case tenants trashed my rental house to the tune of $12,000. It cost me $5,000 in lawyer fees to get the money, and then I only received half of it - i.e. $6,000. So I was in the hole $11,000.