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
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
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???
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
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.
On Sat, 15 May 2004 11:37:32 -0500, firstname.lastname@example.org (m Ransley)
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.
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
Good luck, and best regards,
Bob <-- not a lawyer
On Fri, 14 May 2004 19:22:58 -0400, email@example.com (Jack Townsend)
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.
On Mon, 17 May 2004 07:16:32 -0400, someone wrote:
Yes it is asking to much, if you got to court by bypassing essential
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
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.
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?
If it was dismissed "without predjidice", then you can refile in the same
court. You need to talk to a lawyer.
Sure, they can sue you. The question is "how do you defend?".
For the amount of money that you were suing for, you unquestionably should
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
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
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
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.
firstname.lastname@example.org (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.
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