Lawyer for small claims

[Fastbreak 3979]

We are suing our remodelling contractor for major problems we’ve had post work and work/fixes that were promised and never delivered. The condo is in central Austin.

 

They have requested a jury trial (to make things more complex for us), so i should probably lawyer up as well. They tried today to settle for half. The trial is set for April 15.

 

It’s small claims, so the amount is $20k or so.

 

We have tons of evidence, photos, videos, texts, timelines, etc

 

Anyone have any recs or advice?

[TwiceHorn 31436]

If there is something you would settle for between half and all of it, take it. Unless you think they'll write you a check after you win a trial, if you win the trial and in full. 

Don't take a trial risk over the delta between 10 and 20k.

[Tonesky 932]

Note that failure to follow the procedural notice and inspection requirements of the Texas Residential Construction Act before filing suit is fatal, including if raised by them for the first time on appeal of your JP Court judgment to County Court.  Also, note that you cannot artificially reduce your damages to $20K to create JP Court jurisdiction.  If your actual claim is for $20,001, but you reduce to $20K so that you can be in JP Court and they call you on it, your case will be dismissed.  Finally, if you win any amount and they appeal to County Court, you will then need a lawyer, who will be very unlikely to take this on a contingency fee basis.  Based on how these things resonate with you, you might consider cutting a deal and moving on.  Good luck.

Edited March 5 by Tonesky

[Gil Bang 25907]

I find this interesting. In CA, lawyers aren't allowed in Small Claims Court. 

[52-80 19143]

you should find an internet community full of lawyers desperate for work

im not sure if i know of one

[deadshank 24652]

I’m not making light of your problem.

Suing “for major problems” equaling $20K?   How did you come up with that number?

What was your original contract amount?

Is this a construction defect claim or a warranty claim?

Whose contract did you use?

Did both parties follow the contract?

Is there a section for dispute resolution?  What does it say?

As Tonesky mentioned, did you provide legal notice and access per the law?

 

[TwiceHorn 31436]

7 hours ago, Gil Bang said:

I find this interesting. In CA, lawyers aren't allowed in Small Claims Court. 

The defendant is a legal entity, I'm guessing, and cannot represent itself in most places. 

[Bevo 13560]

10 hours ago, Tonesky said:

Note that failure to follow the procedural notice and inspection requirements of the Texas Residential Construction Act before filing suit is fatal, including if raised by them for the first time on appeal of your JP Court judgment to County Court.  Also, note that you cannot artificially reduce your damages to $20K to create JP Court jurisdiction.  If your actual claim is for $20,001, but you reduce to $20K so that you can be in JP Court and they call you on it, your case will be dismissed.  Finally, if you win any amount and they appeal to County Court, you will then need a lawyer, who will be very unlikely to take this on a contingency fee basis.  Based on how these things resonate with you, you might consider cutting a deal and moving on.  Good luck.

 

The construction lobby must be pretty damn good here.

[Pato del Muerto 52485]

1 hour ago, TwiceHorn said:

The defendant is a legal entity, I'm guessing, and cannot represent itself in most places. 

Corporations are people

[Bevo 13560]

NM

Edited March 5 by Bevo
Decided my post was dumb as fuck

[Tonesky 932]

31 minutes ago, Bevo said:

The construction lobby must be pretty damn good here.

Indeed.  And, thanks to the latest changes to the Act, things are now significantly worse for consumers with claims arising on or after 9/1/2023.  If OP's issues first arose after 9/1/2023, I'll double down on my suggestion OP take the money and run.

[deadshank 24652]

32 minutes ago, Tonesky said:

Indeed.  And, thanks to the latest changes to the Act, things are now significantly worse for consumers with claims arising on or after 9/1/2023.  If OP's issues first arose after 9/1/2023, I'll double down on my suggestion OP take the money and run.

The OP needs to abide by the rules and the contract, as does the builder / remodeler.  

I'm a contractor (a roofing and sheet metal contractor and a separate home building company).  Hauling off and suing a contractor is not per the law.  The law indicates the HO needs to follow procedure with any claim (construction defect or warranty).  The contractor has to be allowed inspection and the opportunity to make things right.   I have no idea if the OP has done this or not.  

I've been sued and have also had HO's insurance carrier subrogate against our GL insurance policy and all with absolutely ZERO notice per the law.  Claims were alleged after repairs were made with no evidence of necessity and no regard for lawful procedure.  "We didn't contact you because we wanted to get it done because so and so said it was a problem.  Please write us a check for X amount of dollars."

Nope.  Not going to do it.  All evidence of alleged claim is gone.  Responsibility of alleged claim was not clear.  Sue everyone and get money.  

I hope the OP, if correct in his claim, gets his day in court and the contractor makes things right.  

The notion of "things are now significantly worse for consumers with claims" is a matter of perspective.  Perhaps it is time for property owners to follow the contract and the law.

[Bevo 13560]

2 minutes ago, deadshank said:

I'm a contractor (a roofing and sheet metal contractor and a separate home building company).  Hauling off and suing a contractor is not per the law.  The law indicates the HO needs to follow procedure with any claim (construction defect or warranty).  The contractor has to be allowed inspection and the opportunity to make things right.   I have no idea if the OP has done this or not.  

 

If I remember correctly, this was the same poster who had the stair railing installed that was out of code. I think you were on that thread, but it has been a long time.

[deadshank 24652]

6 minutes ago, Bevo said:

 

If I remember correctly, this was the same poster who had the stair railing installed that was out of code. I think you were on that thread, but it has been a long time.

Could be.  
 

Im not saying OP is wrong.   I have no idea.   
 

I do run across some really crazy and conniving property owners that are completely dishonest. 

Of course, there are dishonest, crook contractors.    
 

It is the world we live in. 

[Bevo 13560]

14 minutes ago, deadshank said:

The OP needs to abide by the rules and the contract, as does the builder / remodeler.  

I'm a contractor (a roofing and sheet metal contractor and a separate home building company).  Hauling off and suing a contractor is not per the law.  The law indicates the HO needs to follow procedure with any claim (construction defect or warranty).  The contractor has to be allowed inspection and the opportunity to make things right.   I have no idea if the OP has done this or not.  

I've been sued and have also had HO's insurance carrier subrogate against our GL insurance policy and all with absolutely ZERO notice per the law.  Claims were alleged after repairs were made with no evidence of necessity and no regard for lawful procedure.  "We didn't contact you because we wanted to get it done because so and so said it was a problem.  Please write us a check for X amount of dollars."

Nope.  Not going to do it.  All evidence of alleged claim is gone.  Responsibility of alleged claim was not clear.  Sue everyone and get money.  

I hope the OP, if correct in his claim, gets his day in court and the contractor makes things right.  

The notion of "things are now significantly worse for consumers with claims" is a matter of perspective.  Perhaps it is time for property owners to follow the contract and the law.

 

It all depends on the situation. Sometimes the homeowner is right and sometimes the contractor is right. I had a tile guy walk off a job after half a day and say that he couldn't come back for 3 months. So, I just took the loss and finished the job myself. I had another contractor who was hooked on drugs and didn't pay his workers. So, again, I just took the loss, paid one of the workers and we did the job together. Obviously, in both those cases, I wasn't being unreasonable. OTOH, I am sure there are plenty of instances where the homeowner is at fault with unreasonable demands, or not understanding the situation. It is probably pretty common where the contractor comes in to do a remodel and there turns out to be significant rot that was outside the scope of the project but prevented the project from being completed...

 

Ha - just read your post - we are in agreement.

Edited March 5 by Bevo

[Tonesky 932]

2 hours ago, deadshank said:

The notion of "things are now significantly worse for consumers with claims" is a matter of perspective.

Nope, the 2023 amendments to the RCLA are objectively for the benefit of contractors.  For claims arising on or after 9/1/2023, contractors are liable only for (1) actual physical damage to the residence, (2) actual failure of a building component to perform its intended purpose, and (3) verifiable danger to the safety of occupants.  It will take some time for the Texas Supreme Court to fully body slam plaintiffs who seek to push the limits of what this means, but many expert commentators (not me) suggest that claims for cosmetic issues, not matter how extreme or extensive, are gone.  Also, a separate bill shortened the statute of repose for architects and engineers....

 

PS - I am not a plaintiff lawyer.  I do commercial litigation and represent both plaintiffs and defendants.  If a builder came to me with a lawsuit filed by a homeowner who failed to follow the RCLA notice requirements, or contractual pre-suit ADR requirements, I would be perfectly happy to spank the homeowner.

Edited March 5 by Tonesky

[deadshank 24652]

31 minutes ago, Tonesky said:

Nope, the 2023 amendments to the RCLA are objectively for the benefit of contractors.  For claims arising on or after 9/1/2023, contractors are liable only for (1) actual physical damage to the residence, (2) actual failure of a building component to perform its intended purpose, and (3) verifiable danger to the safety of occupants.  It will take some time for the Texas Supreme Court to fully body slam plaintiffs who seek to push the limits of what this means, but many expert commentators (not me) suggest that claims for cosmetic issues, not matter how extreme or extensive, are gone.  Also, a separate bill shortened the statute of repose for architects and engineers....

 

PS - I am not a plaintiff lawyer.  I do commercial litigation and represent both plaintiffs and defendants.  If a builder came to me with a lawsuit filed by a homeowner who failed to follow the RCLA notice requirements, or contractual pre-suit ADR requirements, I would be perfectly happy to spank the homeowner.

1.) Actual

2.) Actual

3.) Verifiable

 

Seems reasonable and to level the playing field.   Not necessarily worse for the consumer but they have to back up a claim with facts.  

[KYHorn 17011]

57 minutes ago, Tonesky said:

Nope, the 2023 amendments to the RCLA are objectively for the benefit of contractors.  For claims arising on or after 9/1/2023, contractors are liable only for (1) actual physical damage to the residence, (2) actual failure of a building component to perform its intended purpose, and (3) verifiable danger to the safety of occupants.  It will take some time for the Texas Supreme Court to fully body slam plaintiffs who seek to push the limits of what this means, but many expert commentators (not me) suggest that claims for cosmetic issues, not matter how extreme or extensive, are gone.  Also, a separate bill shortened the statute of repose for architects and engineers....

 

PS - I am not a plaintiff lawyer.  I do commercial litigation and represent both plaintiffs and defendants.  If a builder came to me with a lawsuit filed by a homeowner who failed to follow the RCLA notice requirements, or contractual pre-suit ADR requirements, I would be perfectly happy to spank the homeowner.

I have no idea about any of this so excuse any ignorance, but does this mean that if my roofer were to use some hideous shingle design/color that was different than what we agreed to, I would have no legal recourse?

[Tonesky 932]

30 minutes ago, deadshank said:

1.) Actual

2.) Actual

3.) Verifiable

 

Seems reasonable and to level the playing field.   Not necessarily worse for the consumer but they have to back up a claim with facts.  

Those words are not the issue.  The issue is limiting claims to physical damage, failure of a building component, and things causing danger to occupants.  A shitty paint job, which would be very expensive to remedy, is not covered.

[Tonesky 932]

8 minutes ago, KYHorn said:

I have no idea about any of this so excuse any ignorance, but does this mean that if my roofer were to use some hideous shingle design/color that was different than what we agreed to, I would have no legal recourse?

That is exactly the concern.  Imagine you are moving to Texas from far away, that you enter into a contract to build a house to be ready when you arrive, and that you make all your selections at the builder's design center before hopping back on a plane to return to far away.  Imagine that when you arrive back in Texas to close and start your new life, you find a perfectly solid structure with brick, paint, shingle, countertops, light fixtures, and appliances different from what you selected.  They are all of similar grade and value, but not what you picked out.  Many think that the new amendments to the RCLA say you can go fuck off if you don't like it.

[Jerry Callo 8695]

2 minutes ago, Tonesky said:

Imagine that when you arrive back in Texas to close and start your new life, you find a perfectly solid structure with brick, paint, shingle, countertops, light fixtures, and appliances different from what you selected.  They are all of similar grade and value, but not what you picked out.  Many think that the new amendments to the RCLA say you can go fuck off if you don't like it.

Isn't that straight breach of contract as opposed to construction defect?

[deadshank 24652]

20 minutes ago, KYHorn said:

I have no idea about any of this so excuse any ignorance, but does this mean that if my roofer were to use some hideous shingle design/color that was different than what we agreed to, I would have no legal recourse?

If it is documented agreed to and then not met that would be a breach of contract.    

[ztejas 43411]

3 hours ago, deadshank said:

Of course, there are dishonest, crook contractors.  

[Tonesky 932]

24 minutes ago, Jerry Callo said:

Isn't that straight breach of contract as opposed to construction defect?

22 minutes ago, deadshank said:

If it is documented agreed to and then not met that would be a breach of contract.    

Yes, my hypothetical describes a breach of contract (among other things), but the RCLA still controls all residential construction claims, and the recent RCLA amendments seem to bar claims for cosmetic issues.   

[Fastbreak 3979]

Thanks for all the great responses!

The main issue was the flooring. They installed super fast, so fast that they floored over the drain in the utility room. Once that was fixed we noticed that the floor was not leveled and shortly afterwards started to warp. They blamed moisture. We brought in an inspector who said no moisture and “why didn’t you add a moisture barrier anyway?” At first they agreed and said they would fix it. After a few months of delay they claimed the inspector was biased, but said they would still “make it right”. Then again Crickets. We brought in the flooring manufacturer. They said it was an install problem. Crickets. We brought in a city inspector and he said no moisture (and off the record said the floor was a terrible install).

The 20k is what it costs to redo the work. There is no pork there.

Almost every bit of work they did was shoddy, late and with no follow up. Promises of “we will be out there tomorrow to fix it” turned into months. The painting, the tiling, the doors (1 inch open gap on the front door for example, that they did fix after 2 months). But the flooring is all we are trying to have fixed.


Example of some of their fine tiling work in the master shower

[deadshank 24652]

45 minutes ago, Tonesky said:

Yes, my hypothetical describes a breach of contract (among other things), but the RCLA still controls all residential construction claims, and the recent RCLA amendments seem to bar claims for cosmetic issues.   

Cosmetic issues (such as painting and "eye of the beholder" type items) are extremely difficult and too subjective to quantify.  

I get this quite frequently: 

Customer: "I don't like the way it looks."

deadshank: "These products are exactly per the selections you made.  What about the looks do you not like?"

Customer: "I don't know.  It just doesn't look right."

deadshank:  "Is it the color, the shading, the texture, the depth, the reveal, the flashing, the slate / shingles / roof tile?"

Customer: "I don't know. It just doesn't look right."

deadshank:  "Uh, okay.  What do you want me to do?"

Customer:  "I don't know but I'm not happy."

Where do we go from here?  Do I replace everything on my own dime?  What do I replace the existing with? Heck, the PO can't put into words what the problem is nor what they want to do?  Do we go directly to lawsuit?

 

[deadshank 24652]

31 minutes ago, Fastbreak said:

Thanks for all the great responses!

The main issue was the flooring. They installed super fast, so fast that they floored over the drain in the utility room. Once that was fixed we noticed that the floor was not leveled and shortly afterwards started to warp. They blamed moisture. We brought in an inspector who said no moisture and “why didn’t you add a moisture barrier anyway?” At first they agreed and said they would fix it. After a few months of delay they claimed the inspector was biased, but said they would still “make it right”. Then again Crickets. We brought in the flooring manufacturer. They said it was an install problem. Crickets. We brought in a city inspector and he said no moisture (and off the record said the floor was a terrible install).

The 20k is what it costs to redo the work. There is no pork there.

Almost every bit of work they did was shoddy, late and with no follow up. Promises of “we will be out there tomorrow to fix it” turned into months. The painting, the tiling, the doors (1 inch open gap on the front door for example, that they did fix after 2 months). But the flooring is all we are trying to have fixed.


Example of some of their fine tiling work in the master shower

Your stuff is jacked  up and you had a not-very-good contractor.  They should make it right by replacing or paying you.  I hope you get what you deserve.  You did your homework and are showing us actual and quantifiable evidence of improper work.  There seems to be nothing subjective or cosmetic about this.

[Bevo 13560]

Quote

We brought in a city inspector and he said no moisture (and off the record said the floor was a terrible install).

Unless we are talking about wood floors, tile doesn't warp. It does buckle though when the thinset doesn't adhere well to the tile. This could be by improper mixing (too dry or wet for example), poor raking or uneven distribution, a dirty surface, or a wet surface. I assume, that it is going down on slab not on subfloor. If it is on subfloor, a decoupler like ditra should be used.

Edited March 5 by Bevo

[Dbeasy 15040]

I was talking to my electrician Monday. He and his parents were fleeced for $460k by a crooked contractor who was building two homes on a plot of land, one for him and one for his parents. 

The guy poured two foundations, half a wall and then took off to Dallas where he fleeced others, and then onto Arizona where he’s fleecing people now. I don’t know all of the details, but the electrician said because of the new law, it’s made it almost impossible to collect on judgements from the guy.

[Tonesky 932]

34 minutes ago, Dbeasy said:

I was talking to my electrician Monday. He and his parents were fleeced for $460k by a crooked contractor who was building two homes on a plot of land, one for him and one for his parents. 

The guy poured two foundations, half a wall and then took off to Dallas where he fleeced others, and then onto Arizona where he’s fleecing people now. I don’t know all of the details, but the electrician said because of the new law, it’s made it almost impossible to collect on judgements from the guy.

That is not a construction defect.  It is simply theft/fraud.  The real problem is that thieves are always broke.  He is not putting the stolen funds into his brokerage account....  Even if you get a judgment, you can't collect.  And, odds are that law enforcement will say its a "civil issue," and you should go hire an attorney.  Sorry for their trouble.

[deadshank 24652]

44 minutes ago, Tonesky said:

That is not a construction defect.  It is simply theft/fraud.  The real problem is that thieves are always broke.  He is not putting the stolen funds into his brokerage account....  Even if you get a judgment, you can't collect.  And, odds are that law enforcement will say its a "civil issue," and you should go hire an attorney.  Sorry for their trouble.

Misspending trusted funds is a felony. 

[conVINCEd 21469]

45 minutes ago, deadshank said:

Misspending trusted funds is a felony. 

A guy I worked with for a very brief period of time, who was easily the shadiest motherfucker I’ve ever known, is doing 30 years for swindling folks on home improvement projects that he had no intention or ability to complete.

[Fastbreak 3979]

We brought in a city inspector and he said no moisture (and off the record said the floor was a terrible install).

Unless we are talking about wood floors, tile doesn't warp. It does buckle though when the thinset doesn't adhere well to the tile. This could be by improper mixing (too dry or wet for example), poor raking or uneven distribution, a dirty surface, or a wet surface. I assume, that it is going down on slab not on subfloor. If it is on subfloor, a decoupler like ditra should be used.

The floors are MSI vinyl planking. They warp when they installed too tightly and then expand. MSI sent a guy out and he signed an inspection report saying the install was faulty.

[Bevo 13560]

26 minutes ago, Fastbreak said:

Unless we are talking about wood floors, tile doesn't warp. It does buckle though when the thinset doesn't adhere well to the tile. This could be by improper mixing (too dry or wet for example), poor raking or uneven distribution, a dirty surface, or a wet surface. I assume, that it is going down on slab not on subfloor. If it is on subfloor, a decoupler like ditra should be used.

The floors are MSI vinyl planking. They warp when they installed too tightly and then expand. MSI sent a guy out and he signed an inspection report saying the install was faulty.

 

Vinyl for $20K? Anyway, some vinyl requires underlay while other has it built in and actually voids the warranty if underlay is used. And vinyl snaps together so a gap doesn't happen and isn't needed. Warping, doesn't happen unless there are extreme temperature and humidity changes which wouldn't be expected on a remodel but I guess buckling can happen when the floor isn't level and a leveling compound is not used. What people generally notice is that the flooring squeaks and bounces when you step on it. And it isn't surprising that MSI blames the contractor rather than their product. It is probably true but don't take their word as gospel. MSI definitely wouldn't want to foot the bill. Wherever the flooring was purchased might be helpful as far as opinion and in some rare circumstances might be able to help get new flooring from MSI. Installation is pretty simple.

 

 

Edited March 6 by Bevo

[TwiceHorn 31436]

24 minutes ago, Fastbreak said:

Unless we are talking about wood floors, tile doesn't warp. It does buckle though when the thinset doesn't adhere well to the tile. This could be by improper mixing (too dry or wet for example), poor raking or uneven distribution, a dirty surface, or a wet surface. I assume, that it is going down on slab not on subfloor. If it is on subfloor, a decoupler like ditra should be used.

The floors are MSI vinyl planking. They warp when they installed too tightly and then expand. MSI sent a guy out and he signed an inspection report saying the install was faulty.

Stuff like that report is hearsay and will be excluded if objected to, most likely. 

[Bevo 13560]

Too slow in my edits

Vinyl for $20K? Anyway, some vinyl requires underlay while other has it built in and actually voids the warranty if underlay is used. And vinyl snaps together so a gap doesn't happen and isn't needed. Although I guess some vinyl needs gap if it doesn't have a good snapping system. I think that is called peaking when the joints turn up and it is difficult to fix. Warping, doesn't happen unless there are extreme temperature and humidity changes which wouldn't be expected on a remodel but I guess buckling can happen when the floor isn't level and a leveling compound is not used. What people generally notice is that the flooring squeaks and bounces when you step on it. And it isn't surprising that MSI blames the contractor rather than their product. It is probably true but don't take their word as gospel. MSI definitely wouldn't want to foot the bill. Wherever the flooring was purchased might be helpful as far as opinion and in some rare circumstances might be able to help get new flooring from MSI. Installation is pretty simple.

Edited March 6 by Bevo

[Bevo 13560]

I also found this online which was pretty useful.

 

https://www.builddirect.com/blogs/expert-advice-on-flooring/how-to-stop-your-vinyl-plank-flooring-from-buckling

[Braff Zacklin 13552]

On 3/5/2024 at 9:11 AM, deadshank said:

Could be.  
 

Im not saying OP is wrong.   I have no idea.   
 

I do run across some really crazy and conniving property owners that are completely dishonest. 

Of course, there are dishonest, crook contractors.    
 

It is the world we live in. 

Just don't ever let judges or jurors find out that you frequently associate with @Patricio Swayze, or it will be guilt by association!

[TwiceHorn 31436]

While I have no doubt that shitty plaintiffs and shitty lawsuits exist, possibly even in equal number to shitty contractors, I come down on this about like tort reform:  There are robust mechanisms for dispensing with shit lawsuits, made even more robust over the past few years by the rulings of Scotx.

Contractors are businesses.  Lawsuits, even shitty ones, are a cost of doing business.

By making it difficult for even meritorious plaintiffs to get into court, the balance of power is skewed in a way that is not natural or right.  Good contractors will just have to deal with some shit from time to time.  If they're good and honest, like deadshank, it shouldn't be too much of a burden.

[deadshank 24652]

2 hours ago, Braff Zacklin said:

Just don't ever let judges or jurors find out that you frequently associate with @Patricio Swayze, or it will be guilt by association!

I get a federal tax credit and a 12-pack of beer for associating with him  

Of course, the beer isn’t cold.  

[TXSooner518 2438]

On 3/5/2024 at 8:16 PM, TwiceHorn said:

Stuff like that report is hearsay and will be excluded if objected to, most likely. 

Rules of Evidence don't apply in small claims cases unless the judge expressly applies them for fairness to all parties, which is very very rare unless both parties agree.