Counter Claim?

[sparty20]

What is the name of your state? Michigan

I'm the plaintiff in a general civil case against the contractor who poured my patio. The case was originally a small claims case but the defendant hired an attorney and had the case moved to general civil.

I just received the defendant's answer and in it he requests the court dismiss my complaint and "award defendant court costs and attorney fees for the necessity of responding hereto".

My question is how can the defendant counter sue for attorney fees when the case was originally a small claims case which excludes the participation of attorneys? Therefore it was the defendants choice to hire an attorney and remove the case from small claims. Also what are the chances the court will award the defendant attorney fees if the court dismisses my case?

I have not hired an attorney and plan to proceed w/ the case representing myself.

 

[You Are Guilty]

What is the name of your state? Michigan

I'm the plaintiff in a general civil case against the contractor who poured my patio. The case was originally a small claims case but the defendant hired an attorney and had the case moved to general civil.

I just received the defendant's answer and in it he requests the court dismiss my complaint and "award defendant court costs and attorney fees for the necessity of responding hereto".

My question is how can the defendant counter sue for attorney fees when the case was originally a small claims case which excludes the participation of attorneys? Therefore it was the defendants choice to hire an attorney and remove the case from small claims. Also what are the chances the court will award the defendant attorney fees if the court dismisses my case?

I have not hired an attorney and plan to proceed w/ the case representing myself.

As attorney's fees are only awarded in a few category of cases, the big question becomes, is there any language as to attorney's fees in your written contract with the contractor, since that would probably be the only category that applies to your situation.

If none, they are likely not recoverable under the circumstances you've presented.

 

[sparty20]

verbal contract...

The contract was verbal and was made w/ the defendant's foreman for the defendant's company to pour my patio. I would have sued the company but it dissolved soon after they poured my job. Before it dissolved the defendant did agree to re-pour my job since the result was unacceptable but never returned my calls or e-mails to schedule the re-pouring.

The defendant's answer includes the following affirmative defenses:
1. Complaint fails to state proper cause of action against Defendant.
2. Complaint fails to state genuine issue of material fact.
3. Plaintiff failed to mitigate his damages.
4. Plaintiff failed to properly plead cause of action against Defendant.
5. Any damages sustained by Plaintiff resulted from his own negligence or improper actions.
6. Any damages sustained by Plaintiff resulted from negligence or improper actions of third party.
7. Failure to name the proper parties.
8. Statute of frauds.
9. Parole evidence rule.
10. Defendant reserves the right to name additional affirmative defenses as they become known through the course of discovery.

So it seems like the defendant's attorney is saying the complaint was not written correctly. But the complaint was written on a simple small claims form (since it was originally a small claims case) which left little room for details and set up so a person without legal knowledge could fill it out.

From my understanding their defense is the foreman i verbally agreed to the contract with did the job as a side job. But my argument would be i was put in contact w/ the foreman only because i left a message at the company's office requesting a quote to do my patio. And the foreman gave me a business card with the company logo and the owner's (defendant's) name on it so i assumed the verbal contract was with the company and NOT the foreman as a side job. I also feel like the defendant did acknolwedge the job was poured by his company by sending another one of his employees out to inspect and then agreeing to re-pour the job due to unacceptable quality.

One other detail which is somewhat embarassing is i paid for the job w/ cash and was not smart enough to get a receipt.

I have a hearing for entry of default scheduled for later this month. The hearing was scheduled because the defendant's attorney failed to file the answer before the answer deadline. The answer was just received yesterday (8 days past deadline) but i don't know how that will affect the entry of default hearing.

Based on this info. am i at risk of having to pay the defendant's attorney fees if i lose the case?

 

[You Are Guilty]

1 - You won't be getting a default as, although late, the answer was served. Thus, I'd expect the "default hearing" to either be cancelled or to be over in about 5 seconds.

2 - Under those facts, absent a written contract provision stating that attorney's fees are payable if one party sues to enforce their rights under that contract, they stand very little chance of collecting any, and 0 percent if they lose.

3 - Those affirmative defenses are "boilerplate" ones which are thrown into every suit. Don't overly concern yourself with them.

 

[sparty20]

Thanks for your informative responses.

Will the judge hear arguments for the case at the hearing for Entry of Default (if there still is one) or is the hearing strictly to determine whether or not a default judgement will be awarded?

Also, i just learned the defendant's attorney has filed a motion to withdraw as the defendant's attorney and that hearing is scheduled at the same time as the Entry of Default hearing. Apparently the defendant has not paid his attorney the retainer fee and there has been a complete breakdown in relationship between the two.

I really just want to be heard by the judge and get this whole thing over with without having to go to so many hearings.

 

[You Are Guilty]

Will the judge hear arguments for the case at the hearing for Entry of Default (if there still is one) or is the hearing strictly to determine whether or not a default judgement will be awarded?

While it should remain a Default hearing, there's no telling what a judge may do in any specific situation. However, given the information below, I doubt you'll be able to present any evidence at this hearing, no matter what it's called.

Also, i just learned the defendant's attorney has filed a motion to withdraw as the defendant's attorney and that hearing is scheduled at the same time as the Entry of Default hearing. Apparently the defendant has not paid his attorney the retainer fee and there has been a complete breakdown in relationship between the two.

I really just want to be heard by the judge and get this whole thing over with without having to go to so many hearings.

I'm afraid that you'll be disappointed. If the attorney withdraws as it looks like he will, the case will be put over (adjourned) X number of days in order for the defendant to obtain new counsel. Then, you'll get called back in and probably have a discovery conference, and then, after discovery is complete, you may get the trial/hearing you're after. It's not a fast process. You can easily be looking at 12+ months before even getting a trial date.

 

[sparty20]

Thanks again for the info.

Is it possible for me to get the counter claim thrown out early in the process based on the lack of written agreement instead of waiting until the end. I'd hate to go through this lengthy process knowing there's a chance (however slight) i could end up having to pay his attorney fees, which will probably be a substantial amount of money at the end of a lengthy process.

The reason i didn't hire an attorney for myself is i can't afford it and the few i talked to said the fees would almost be as much as the claim amount.

I really only want to proceed if there is no risk of me losing any more money.

 

[You Are Guilty]

Unfortunately, there is no such thing as "no risk" in law. However, you would qualify as "low risk".

As far as getting the claim for attorney's fees bounced, you can sure try. You'll have to write, serve and file a motion to strike the claim for attorney's fees as there is no contract that provides for the payment of same. (There may be some samples on the web for you to use).

The problem is if his attorney drops out, your motion will be put on hold at least until he gets a new lawyer, and then likely even longer for the new lawyer to read and respond to it.

You may have some success when you go to court to mention it to the judge and ask that the claim be stricken from the answer (for the reasons above). In a pro se case, the judge may let you get away with an oral motion rather than on papers. Might as well try it as it's free and the worst he can say is to file a written motion.

 

[sparty20]

Well my hearing for entry of default is on Friday. I will ask the judge to strike the counter claim from the answer "because there is no written contract stating attorney fees are payable if one party sues the other" per your advice. If i am unable to get the counter claim dismissed i will consider dropping the case since i don't want to risk losing any more money and i'm not sure how strong my case is.

If i am able to convince the judge that the defendant's company DID pour my patio and the job quality IS unacceptable what are my chances of winning the case? In other words, is the defendant protected as the owner of the dissolved company (incorporated) which poured my patio? If my chances are not good then it will make it that much easier to decide whether i should drop the case.

 

[sparty20]

Should i sue company owner AND company?

Well i had my hearing today and the defendent's attorney withdrew as his attorney. So now that there are no attorneys currently involved, the case was sent back down to small claims court.

On the way out of court i did get some advice from an attorney which i am unsure of. He said i should amend the small claims case to add the defendant's company as another defendant so that i could go after assets of the company if i win. My question is if i add the defendent's company (which is dissolved) as a defendent then what are the possible outcomes of the case? Am i correct in assuming the following are the possibilities:

Judge rules in favor of the defendent.
Judge rules in favor of the plaintiff versus the company.
Judge rules in favor of the plaintiff versus the owner of the company.

If the judge finds in my favor against the company i would be worried the company has no assets. Then i would have no recourse to collect the judgement since the company is dissolved. But if the judge finds in my favor against the owner of the company then there's always a chance of collecting from a person. Is my logic flawed?

Is it possible if i add the company to the suit that the judge will rule in favor of my versus BOTH the company and owner of the company?

Thanks,
-jeff

 

[tijerin]

The decision would either be for the plaintiff (against all the defendants) or for the defendant. They wouldn't "select" a defendant.

If you add the company as a defendant, the corporation would have to come to court and either:
1) defend themself just as the first defendant, or
2) convince the judge that they are not a party to this action and have themselves removed as a defendant.

That's why most lawyers sue EVERYBODY they can possibly THINK is involved and leave it up to the parties themselves to get themselves removed from the case. The more defendants left at the end of a winning case, the more chances to collect.

Correct me if I'm wrong anybody..