Small claims case thrown out in MD. Any recourse?

Hello To All, My small claims case against my builder and the warranty company was just thrown out of court when the judge granted the defendant's motion to dismiss. The amount was over $5,000 so I'm assuming this was not a small claims case in which case attorney's would have been barred. How could the judge grant this motion when I supplied voluminous amounts of evidence including pictures, estimates from 5 foundation and waterproofing companies detailing the defect that was in the foundation wall from the first day I moved into this house.
The problem was that the builder left a 2-inch diameter hole in the wall where the casing for the well pump should have been installed. Over the last few years this hole has been getting bigger and allowing more ground water to seep into the basement. The builder had covered the wall with insulation when the house was built and therefore this defect was not noticed for more than a year. The house is covered by a ten-year warranty, but the warranty company refuses to do anything about it. The estimates to fix the problem range from $3,000 to $9,000. Can I refile this claim for $5,000 in the same court thereby preventing frivolous motions being filed by the other side and having this case proceed to trial?
The warranty company is now suing me for attorney fees for bringing suit because there is a clause in the warranty agreement that stipulates that if I bypass their arbitration process and file suit, then I am liable for their attorney fees. These guys are crooks. We wrote a letter detailing the problems we were having with the house's foundation and we gave the builder and the warranty company 60 days to come out, inspect the problems and make repairs. They ignored the letter. We tried for almost 9 months to get them to do something (including an investigation by the State's attorney generals' office )before we filed suit and they just blew us off everytime saying that it was not covered under warranty. And that we would have to pay them $500 if we wanted to take this matter further. The warranty/insurance company filed a motion to collect attorney fees and it was denied by the court. Can they still sue me to recover these fees?
Sorry for the length of my rant. But the little guy gets screwed every time and I'm getting tired of it. All I want is my day in court. Is that asking too much???
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This isnt alt. Free Legal help for dumm asses, You should have and should contact a Lawyer,
Or go to www.freeadvise.com and get what you pay for, but it is answered by lawyers.
You already screwed up 3 times and are looking for a 4th. Havnt you learned yet
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Hey , you don't even know if you were in small claims !
It got thrown out !
The warranty co wants suit for legal fees !
You want to RE file and risk a Frivolous suit !
Did you even have a case !
The judge would not hear your complaint !!!
Look, you are the genius that did not consult an attorney and fell flat on his big fat ass in court, go talk to one, but since that rubs you the wrong way. RE - file and learn a lesson.
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On Sat, 15 May 2004 11:37:32 -0500, snipped-for-privacy@webtv.net (m Ransley) wrote:

Apparently the judege thinks I have a case against one of the defendants (the builder) because he's allowing it to go to trial this week. Where I come from, if an insurance company doesn't fulfill its side of the contract ....in this case a third party warranty ....that is breach of contract/breach of fiduciary duty. And since this is a forum for homeowners and prospective new home buyers...I thought I just give you guys a heads up about third party warranties on new homes. Don't get one backed by Quality Builder's Warranty Corporation. They will never live up to their side of the agreement.
PS....I did consult an attorney in this matter and they wanted a $1,000 to file the paper work and then they said that I probably would only get the materials back that were used to fix the problem, which was about $1,400.
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Jack Townsend wrote:

Insurance companies are a regulated business. Maybe you should contact your state board of insurance examiners or the attorney general and let *them* file a lawsuit.
Tell the insurance company that you are filing a "bad faith" complaint with the state regulators. That will get their attention (perhaps only briefly.)
Good luck, and best regards, Bob <-- not a lawyer
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wrote:

If he's in Maryland he needs to go to: http://www.mdinsurance.state.md.us /
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On Fri, 14 May 2004 19:22:58 -0400, snipped-for-privacy@yahoo.com (Jack Townsend) wrote:

Do you do your own dental work too? You obviously do not have any idea what you are doing and are probably screwing yourself.
Get advice from a lawyer as soon as possible. He/she may be able to undo some of the damage you have already done.
Good luck.
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On Mon, 17 May 2004 07:16:32 -0400, someone wrote:

steps that you had previously agreed you had to take before going to court. Like, looks like you agreed to arbitrate first, by SIGNING a contract with that requirement. Instead of asking us here, what reason did the other side give when they asked the judge to dismiss? What was the judge's response (apparently he/she agreed).
Was your case dismissed BEFORE hearing your voluminous evidence? Then you probably violated your contract that required you to arbitrate BEFORE filing a lawsuit, and perhaps the case was dismissed on that basis, but never mind what we say, WHAT DID THE JUDGE SAY was the reason?????
-v.
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Oh you know judges. They always have too much to say. <g>
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OK, so, did you go through their arbitration process before filing suit?

Sure they can- *winning* is a different matter. Bring a copy of their prior motion and the court's response with you. If a judge already said no, and their suit is for essentually the same subject as the motion, your defense should mention res judicata. The judge, particularly if the same judge, should get annoyed at them.
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In Small Claims Court in Maryland, attorneys *are* always allowed.
Small claims court in Maryland allows only cases claiming damages up to $5000, though. Therefore, you weren't in Small Claims Court. You were in regular District Court, or maybe even Circuit Court (if the amount was over $20,000). (Small Claims Court is part of District Court, by the way, with the main difference (at least in Maryland) being that lots of rules are relaxed and procedures are not as formal, so that individuals can more easily represent themselves.)

Didn't the judge give a reason for dismissing the case?

court. You need to talk to a lawyer.

have hired an attorney. You should contact an attorney promptly anyway, since there might be a limit to the amount of time in which an appeal must be filed.
I'm not a lawyer, but I have sued a few companies and individuals in Small Claims Court (and I've always prevailed). But I was exceptionally well prepared in each case, and the defendent in each case was relatively unprepared. Small Claims Court is very much like Judge Wapner's "Peoples Court", where the judge asks questions, as needed, to get the entire story out and ensure a fair trial. In contrast, in regular District Court, the judge does not cut anyone much slack, and expects the parties (or their attorneys) to know the rules and to present all of the evidence without the judge having to do much other than be sure that the court rules are followed. If I had to take a case to regular District Court, then no matter how strong my case was, I would lose without a lawyer, since there's no way that I could know how to follow all the rules and procedures.
It sounds like you were in regular District Court and lost, not because you weren't the stronger player, but because you didn't know the rules of the game.
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Jack Townsend writes:

Two kinds of successful contractors: those who build well, and those who build poorly but are expert at weaseling out of the consequences. The latter are not really contractors. Think of them as non-contractors. These two kinds are hard to tell apart at the beginning.
You are an amateur at this legal process, he is an expert who does it for a living. Who do you think is going to win? Unless you spend many $1000s on lawyers, he will.
In somes states a small claim can be refiled in "real" court, especially if summarily dismissed.
Your only option at this point is to start paying a construction lawyer. There are lots of them ready to be hired, because there are lots of weasly contractors that need to be sued.
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snipped-for-privacy@yahoo.com (Jack Townsend) wrote in message

You tell us nothing about the basis given for the dismissal, or whether it was done solely on the papers presented before trial, or while you were appearing in person, during or after the evidence was presented. So it's kind of hard to figure out what went wrong with your case to give the judge grounds to dismiss.

That is _above_ the $5k limit of "small claims" jurisdiction in MD. Cases under that amount, if appealed, automatically get a brand new trial "de novo" in Circuit Court; cases claiming more than that amount, unfortunately for you, are heard "on the record". That means the factual findings of the trial judge below will be given great deference by the appeals Court; the Circuit Court will not hear new evidence but will just determine, based on their review of the trial transcript and your legal arguments (presented to them, on appeal, in a written brief and at oral argument), whether the trial judge committed some error of _law_ which they would then overrule. Needless to say, if you already were unsuccessful presenting your arguments below, you'd do well to consult an atty to help you with the appeal, if you are considering one, and to tell you whether you realistically have a chance worth pursuing or not.

Unlike some other states, attys are _not_ barred from participating in small claims cases in MD.

I can't answer that question. One would have to listen to the entire trial tape to figure out who actually said what, what grounds for the motion were presented by the defense, and what the judge said were his reasons for granting the motion. But it's entirely possible, even likely, that a lay person (non-lawyer) such as yourself may have left out proof of one of the essential legal elements of your claim, in which case the defendant is very likely to move to dismiss, and it would be the entirely proper response for the judge to grant that motion. As the plaintiff, you have to know what you're doing, and meet your burden of proof. No one is going to hold your hand for you and say, "gee, that's very impressive evidence of elements A, B, and C of your claim, but unless you present evidence of element D, I'm going to have to rule that your claim is legally insufficient to entitle you to relief." The judge has to be neutral to both parties, and both parties are presumed to know the law applicable to their claims and defenses. If you DON'T feel comfortable that you knew what the legal elements of your claim were, then by all means you should have had an atty representing you in this matter. <snipped details of the merits of OP's claim>

No. Their motion wasn't frivolous, by definition, since it was granted. Your re-filing would be frivolous, almost by definition, since you have already been dismissed on the merits, and the doctrine of "res judicata" prevents you from re-filing another claim based on the same facts. If you do, don't be surprised if the defense files a motion to sanction you with a fine and/or atty fees for opposing your re-filed claim (this is a separate issue from their atty fee claim based on the arbitration clause in the contract).

So why did you bypass the arbitration process? Arbitration would also have given you a chance to have your claim heard. In fact, if the basis for the dismissal of your Court claim was the existence of a binding arbitration agreement, then you are NOT entirely out of luck; all that dismissal means is that the Court held you were bound to the terms of the arbitration agreement and were not permitted to bypass it by having a Court decide the merits. If so, you can still have an arbitration to decide the merits of your claim.
<snipped stuff about why the other side are crooks>

Probably not, since the Court has already decided the issue (the same reason _you_ can't refile to have that issue heard again). So you lucked out there. If they _do_ sue you anyway, have your atty (you should get one, this time) point out to the Court that the issue has already been decided, and move for sanctions against _them_.

I disagree. The little guy gets screwed some of the time, and wins some of the time. Most of my caseload is representing "little guys" against insurance companies and big corporations. Since I only get paid if I win, I wouldn't be able to stay in business if I didn't win at least some of the time. The little guy has a much better chance of winning, esp. when the opponent has an atty, if the little guy has an atty too. The judge has to be neutral; he can't take sides and help you out, and is supposed to withhold judgment until all the evidence is in, at which time he has to make a decision based only on that evidence, without speculating about what other evidence might have been presented but wasn't. If you had no idea what evidence you had to present to prove a winnable case, that's your fault, not the system's. The system, to be fair, has to hold both you and the defense to the same standard of knowing and applying the law correctly, and amateurs representing themselves often screw up and lose because they frankly are not very good at lawyering. Sorry.

Didn't you have one? You filed suit, presented your evidence, and got dismissed. If the basis for dismissal was the arbitration clause, then the arbitration hearing will be your "day in court" to present the merits of your claim.

Only if you want a second bite of the apple. Except in small claims <$5k, one bite is all any of us get. Good luck,
-- This posting is for discussion purposes, not professional advice. Anything you post on this Newsgroup is public information. I am not your lawyer, and you are not my client in any specific legal matter. For confidential professional advice, consult a lawyer in a private communication.
Mike Jacobs LAW OFFICE OF W. MICHAEL JACOBS 10440 Little Patuxent Pkwy #300 Columbia, MD 21044 (tel) 410-740-5685 (fax) 410-740-4300
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