On Tuesday I have a hearing before the Magistrate Court/Small Claims Court

[RamblingRose]

against the contractor I used to remodel our bathroom. He promised to come back and make the necessary repairs to the shower but always had an excuse the evening before as to why he couldn't come. Unfortunately, in my haste to be done with the job, I paid him in full. After 3 months, which was waaaay too long for the scope of the job, and with the holidays approaching, I was ready for him to be gone! Also, the number of items I noticed that needed to be fixed seemed to multiply once I started using the shower.

To determine the amount of my claim I got 3 estimates to redo the entire shower. It came to about $5,000 which I think is very reasonable.

He hired an attorney who sent me a letter in legalese saying he was not negligible and that I have to pay his court costs. I on the other hand am representing myself.

I believe I have strong evidence to support my case, including all text messages, tile manufacturer's installation guide, grout manufacturer's recommendations, pictures,...

I am trying to decide the best way to present this to the judge. I have printed everything in duplicate as instructed by the court, along with 2 sets of photo prints. Should I put all the documents in a 3-ring binder with tabs to indicate the sections (i.e. "original contract", "estimates", "installation guides",...) or just present them in a mantilla folder with relevant documents stapled together. I have about 15 pictures that will need to be placed on poster board so as to support the weight of the photos and give me room to write under each one. I can cut the poster board to size based on the number of pictures I want on a 'page' or use the full poster board as a display.

I feel like an idiot for hiring this guy and paying him in full.

Any recommendations or words of support would be greatly appreciated.

[TomSlick]

1. I recommend having one of more of the contractors

from whom you obtained estimates in court to testify the job was improperly done.

[Amishman]

2. Given the dollar amounts involved, this might not be cost effective

They will want to charge for the time and effort involved, likely at a premium as most do not like going up against a peer in their industry. Blue collar trades tend to have quite a bit of solidarity

[dalton99a]

7. Because they don't want their tires slashed and their families threatened

It's best to hire an 'expert' from out of town

[Ellipsis]

3. I would present it chronologically... talk to the clerk of court and ask about protocol.

[Bev54]

4. A binder is good

When doing my son's divorce trial, I did binders with copies of all exhibits to hand to the judge and the other side. Be sure to number them with tabs and a table of contents.

[2naSalit]

5. +1

[2naSalit]

6. Though it's been decades since...

I have been to small claims court and it was my understanding that there were no attorneys allowed. So the more professionally you can present your case and the more backup you have to show you are not the only one who agrees the guy owes you. Anyone who gave you an estimate or a friend who is knowledgeable about such construction and your plight.

[Ms. Toad]

11. The contractor may well be a business.

While individuals can represent themselves, businesses cannot without engaging in the unauthorized practice of law. So I can't imagine a court barring attorneys.

[2naSalit]

14. I sued my landlord,

Who was a business. I won because I had my ducks in a row and witnesses. The business was a couple but that's how they presented themselves. And I was informed when filing, from several sources, that attorneys were not allowed by either party but it may be a local/state sort of rule.

[Ms. Toad]

16. Any time you represent someone other than yourself,

you are engaging in the unauthorized practice of law. So a single landlord could represent themself, but once there are two people involved, the business is (at a minimum) a partnership. So a member of the partnership representing the partnership is representing someone other than themselves.

Ethics rules are pretty universal, and all prohibit the unauthorized practice of law.

[RamblingRose]

21. In the letter from his attorney, his TENTH DEFENSE reads:

Plaintiff has asserted a claim against "Castleworks", which is not an actual person or entity. Therefore, Plaintiff's claim should be dismissed.


The contractor's name along with Castleworks is on the contract and all checks were made payable to Castleworks.


???

[Ms. Toad]

22. Just ask the judge to amend the complaint to name

whatever the entity's real name is. They should allow it, since they are obviously on notice of the complaint against them, so there is no prejudice that the wrong entity was served.

You may be able to look up the correct name using the secretary of state's website. Most states require that entities doing business in the state register their name (and agent for service) with the state.

[RamblingRose]

8. I wonder how many hearings the judge has a day & about how much time they spend on each case.

Do they take the evidence into their Chamber first then come to the bench or do they look at it all from the bench then go to Chamber?

I know my time is limited so I want to make it as succinct as possible. The printout of the texts alone is 32 pages. I have highlighted the relevant texts and added additional notes on the side I could shrink them to fit on fewer pages but I thought the judge might appreciate the larger font

I have no idea what to expect and am very nervous. Guess I should have watched more Judge Judy.

[moonscape]

18. I watch People's Court and she

always wants to see texts in the actual phone for both authenticity and context, but I have no idea if non-TV Small Claims judges want to see one’s phone vs print-outs!

[RamblingRose]

24. I wondered about that since the phone gives a time stamp to pictures and texts n/t

[Takket]

9. binder... organize organize organize

and don't beleaguer the judge with irrelevant material. if there is a design guide don't expect them to leaf through the whole thing. either only present what is relevant, or use sticky tabs and highlighter on the pages you want the judge to look at with a clear link between "the guide says this, and here is a photo showing this was not done".

[Baked Potato]

10. It all comes down to what's reasonable and customary.

It sounds like your case hinges on shoddy work which was unfinished and was taking to long.

I think you will need to prove those points.

The Magistrate will probably want you to prove why the entire shower needs to be redone. You will need to show how long a normal job takes. And, you will probably need to show what exact part of the completed tasks were shoddy.

Be simple to the point as you can.

[RamblingRose]

19. Yes, it is for shoddy work. The first time we went to use the shower the shower handle came off.

He came out that day and fixed it but that's about how things went- the sink leaked, the sink stopper wasn't connected, toilet seat lid wasn't attached correctly, put on the wrong shower head...

It is not how long the job took that is the issue, though it definitely was not reasonable and customary, it is the tile work in the shower. Just the tile in the shower could be torn up and replaced but if it looks like that on top I shudder to think of the quality of work underneath.

Most of the estimates said the job would take less than a week.

[Baked Potato]

26. Please let us know what happened, if you want.

[Ms. Toad]

12. As a general rule, the US does not follow the "loser pays" rule.

I am not aware of any place in the country in which general contract law would require you to pay the contractor's legal fees (if you lose). BUT - if the contractor gave you a standard contract form you may have agreed in advance to pay his fees.

If you have a written contract, read it.

Look for
Any promises as to time of completion (or time is of the essence provisions)
Any mandatory arbitration clauses
Any indemnification provisions and/or any obligation for one party to pay the attorney fees/costs of the other.
Any warranties or promises as to quality (the implied warranty of workmanlike services (next paragraph) generally can't be inadvertently waived - there has to be enough in the contrat to establish that you were aware you were waiving it)

As to the claim (the attorney's legalese) - I think you mean negligent. Your claim is for breach of contract.
Generally, services come with an implied warranty of workmanlike services. Broadly, that means that the quality of work must be equal to the work performed by someone with the knowledge, training, or experience necessary for the successful practice of a trade or occupation, as judged by someone capable of performing such work. It would be helpful if one of the folks from whom you obtained a second opinion could attest to the quality of the workmanship.

Small claims courts are generally pretty user-friendly - but technically you can't get that in unless you have the expert available to testify. (Whatever they tell you out of court is hearsay.) If you have it, it doesn't hurt to offer it.

You'll need to establish
* There was a contract (it doesn't have to be written, but you have to establish what you agreed to pay and what the contractor agreed to do, and when)
* Performance was mandatory as of the date you filed the claim. (If you didn't have a date certain for completion, you'll need to establish why the contractor isn't entitled to more time). If you didn't have a specific date - you would need to establish what is reasonable.
* The performance was incomplete (sounds like he completed the work) OR the performance fell short of any express warranty or the implied warranty of merchantability (your best bet - but you may not be able to establish it without an expert witness)
* The damages - most of what you have mentioned goes to the damages.

[2naSalit]

15. THIS!

[RamblingRose]

20. The only 'contract' is the one page estimate which lists the scope of the job and the price which we

both signed. It is one man with 2 helpers that does business under the name Castleworks.

He included all materials in his estimate which later became an issue since he never gave me any allowances. I asked him several times to meet me at the granite store or bring me samples for the counter top. Instead he sent me to the shop and told me to ask for John. When we got there we asked John what the budget was and he didn't know so we selected the one we liked. The next day the contractor called and asked if John told us the granite we selected was a premium granite and cost more which he did not. Since this was already 2 months into the job I told him to use the granite we selected and we would pay the difference.

There was no deadline in the contract however everyone that came out to give an estimate to re-do the shower was shocked the job took so long.

The closest thing I have to a witness is one of the contractors included the items that were wrong with the workmanship along with his price to re-do the shower.

For damages I am asking for the amount it would take to have the shower completely redone. Since I had no idea what amount to ask for I thought I'd start there figuring the judge could award less.

I need to learn how and what to put on a contract for any future jobs!

[Ms. Toad]

23. With any luck,

the judge will use the estimates to determine that the service was not provided in a workmanlike manner. Technically that can't come in because it is hearsay that doesn't fall within an exception. From your other comment about the attorney's motion to dismiss (based on the entity name) he will probably object, and the judge may be forced to keep it out.

The lack of much in the contract will probably be in your favor - especially if they wrote it up. Contracts are generally interpreted against the drafter, figuring that the person who wrote the contract had the best opportunity to define things and chose not to. So if there are discrepancies, the contract is generally interpreted in favor of the non-drafting party.

But the lack of much in the contract means there probably wasn't a clause allowing them to collect attorney fees. Absent an agreement in the contract that you would pay attorney fees, courts generally cannot award attorney fees to the winning party.

It also means that they likely didn't effectively disclaim the implied warranty of workmanlike services.

As for damages - generally the court will award an amount that allows you to get what you bargained for. That likely doesn't mean a complete re-do (unless it is a total disaster) - just to pay somoene else to fix it so that it is what you asked for. But you're right that the judge can just pay less than you asked for.

[LetMyPeopleVote]

13. Good luck

Small claims courts tend to be friendly to consumers. Keep calm and just be organized

[WhiskeyGrinder]

17. Paging The Magistrate.

[DFW]

25. My sympathies. Germany is a nightmare is this regard.

Contractors accept all sorts of projects, demand payment up front, especially if they are sleazy, and many (not all, by any means) do 75% of the work paid for and disappear. One time we had a guy come to some outside roof repair, and within days an overhang with recessed light bulbs began dangerously sagging downward. We called, wrote, you name it. He was local, in the phone book, but never answered.

Finally I took drastic action, German style.

In Germany, you have to understand that the customer is always wrong. My wife calls it "Servicewüste Deutschland," or Germany, the desert of service.

So, I called the owner's residence to offer my condolences to his wife on the death of her husband. She freaked out, figuring something must have jut happened that morning. I said he had promised weeks ago to come back and fix the damage he had left, so we figured he must have died. Somewhat recovering from her shock, she said she had seen him alive that morning, and I said I didn't understand how that could be, since he hadn't gotten back to us for weeks after promising to do just that. I admitted that I was in "close contact with the local press," and didn't understand why I hadn't yet seen the death notice.

He got the hint, and was at the house with his team the next morning, mumbling some phony apology for "the misunderstanding." Yeah, right. I guess it doesn't work that way in the USA.