What are my chances of winning in small claims?

[Alex Berkovsky]

A couple of years ago I had my basement finished by a contractor. The job included framing, insulating outside walls, sheetrocking, 5 new windows, etc. A couple of months ago I had to open an access panel in the wall in order to shut off the water to the house. As I stuck my hand in, I could feel the cold air and no insulation. I had also noticed during the winter that after the window calking had cracked, I could feel a draft, see daylight, and dirt blowing inside. I walked outside and saw that the windows were not insulated nor capped. I called the contractor and explained the problem. He swore to me that he did insulate all the outside walls. I extended an invitation to come over and have a look. He informed me that he is no longer in business. I asked him to either pay me what it would cost to fix the problems or send someone himself to correct the problem. He asked me for my phone number and said he'd send someone to take a look. Weeks passed... my call are ignored with my last message threatening to take him to court.
First court date, he didn't show up (his lawyer sent a letter saying that he was out of the country). Second court date he didn't show up again (lawyer sent a letter saying that he had a medical family emergency). The judge didn't like that and asked me to present my case. I had the cancelled checks, pictures, and two estimates to fix the problems. Long story short, a judgement was awarded in my favor for $3k.
Last week I got a letter from the court and his lawyer that he is appealing the judgement. In lawyer's letter to the court, it has a copy of the proposal and his argument is that the proposal does not mention the insulation. If he was to insulate the walls, the job would cost more money than he was paid. The letter also states that I was at home when he was doing the job (another lie since I worked full time) and why didn't I bring up the problem to him then. I took additional pictures of other walls with insulation showing (where other access panels are) to bring to court. Even though he will be under oath, he can still deny that insulation was part of the job even though he did insulate the other walls and swore on the phone that ALL the walls were insulated.
I am so damn ticked that there are people out there that you trust and they screw you over. BTW, this guy was a member of my congregation and that's why I could trust to leave him alone in my house. Lesson learned the hard way.

[Darren Ford]

I wonder if there have been any other lawsuits against him.

[Greg Peterson]

I'm surprised that he is able to appeal the small claims judgment, especially since he did not attend either hearing. I don't doubt that his lawyer was able to appeal under some procedural method, I just assumed a small claims appeal was final.

If I read your post correctly, the insulation was never documented. Is there any documentation other than the proposal? Is there a contract stating the work to be done?

If he insulated part of the project without your permission, sue him for installing the insulation he did install. It isn't on any of the documentation, therefore the insulation shouldn't be there.


More than one way to skin a rabbit.

[Joe Pelonio]

So there's nothing in writing indicating the scope of the job, including the missing insulation?

I'm no lawyer but have heard stories from a good friend that's a superior court judge in CA.

It will probably come down to his word against yours. If you are found to be telling the truth (and he's not) on other issues, such as whether or not you were home, the judge is more likely to take your argument as accurate. Can you provide witnesses as to the dates he was working, and co-workers that will be willing to come to court and testify that you were at work all those days? Unfortunately sworn statements do not compete with actual testimony in court, if he should bring in former employees to day that you were home.

Good luck.

[Alex Berkovsky]

...Can you provide witnesses as to the dates he was working, and co-workers that will be willing to come to court and testify that you were at work all those days?

I don't think I can find anyone to go to court to testify that I was working that day and he can't either since he was working alone.

[Joe Pelonio]

That's the problem, even if he was alone he might bring someone that testifies that he was there too and saw you there. Fake witnesses turn up all the time, it's illegal perjury but still done. Maybe you have at least a copy of some H.R./Payroll documents indicating that you worked those days?

If the new judge has the information that the contractor failed to show up in court on 2 occasions that could help you too, looks like he's avoiding it.

[TYLER WOOD]

I like your thinking Greg!!!

[Cliff Rohrabacher]

Absent anything in writing you may end up with the old he said she said and the judge may send you all home equally miserable.

Most states require that to challenge a default judgment they must have good cause. A bona fide medical emergency might be enough but you should demand proofs.
If they raise the statute of limitations ( limitation on actions period) you can aver "hidden defect."
It's a little late to amend your complaint but the court may choose to read it expansively And you can always insist that the legal theory of recovery of "hidden defect" is plain from your complaint so long as you were detailed about he facts and circumstances.

Next time hire a lawyer to draft the contract for the work. That way you won't be behind the 8-ball later on.

[Mike Henderson]

The person bringing the case has the burden of proof. If you can't prove that he was supposed to insulate the walls, I'd call it a lesson learned and go on from there. The one thing lawyers love is someone who is unreasonable and wants to press on "to prove a point".

However, there are other things you can do. There's some web sites, such as Angie's List, where homeowners rate people who do various work on houses. You might try going there and leaving an honest account of the situation (make sure what you say is the truth - if you don't have paperwork, say that it's your memory of something).

While it won't help you, it might help someone else.

Mike

P.S. You also have the satisfaction that you made him pay for a lawyer to handle the case this far.

[Steve Campbell]

You have gotten some great advice, and I'm sure not a lawyer, but just stop and think this through. You said he was out of business now. You may get a judgement, but if he has no money you will still be the loser.
I hope you can nail him. Just make sure you don't spend too much money trying to get it.

Good luck
Steve

[Cliff Rohrabacher]

but if he has no money you will still be the loser.

Well intended but clearly mistaken.

In almost all states any judgment from an inferior court such as small claims can be docketed with the superior court and it instantly becomes a lien on the real property owned by the judgment debtor anywhere in the state.

One day you will get a call.

[Alex Berkovsky]

...You said he was out of business now. You may get a judgement, but if he has no money you will still be the loser.
I hope you can nail him. Just make sure you don't spend too much money trying to get it.

Steve,
They can still go after his assets (bank account, car, etc). The only money I have spent is $20 to file, time, and gas money. If the judge reverses the original judgment, oh well... a hard lesson learned and I'll have to fix everything myself.

[John Mihich]

I think the fact that he did insulate some but no all would be a point on your side. The judge should question that. If it's not on the specks then why did he insulate part but not all. I think the contractor would have a problem answering that.

[glenn bradley]

John M makes a good point and as mentioned earlier in the thread if you can reasonably prove he is making false claims about some of the "facts" the judge will lean more your way on the 'he said / she said' thing. If no one wants to go to court to prove you were at work, a deposition will do. Just a simple written statement as to I was working with (you) doing such and such on (date in question). Signed and witnessed by a third disinterested party doesn't hurt either. Time records, appointments kept, recipts you may have signed, etc. can all prove you weren't there at least some of the time he states you were. Good luck. I hate to see flakes get away with this stuff while those of us trying to be decent end up their victims.

[Mitchell Andrus]

The building code may dictate that insulation be installed and give your the presumption that a completely compliant finished product was expected.