What is the name of your state (only U.S. law)? Michigan
I have been searching for hours,*I'm coming up empty and I'm running out of time...
quick backstory: we built a new house starting in April of last year. We entered into a contract with the excavator/cement contractor for a set amount after he submitted a series of bids over a few months that increased from approx $23k to the final contract amt of $31k. A few weeks after the contract was signed, he submitted a change order increasing the contract to just under $35k. We agreed to it and signed it. He completed 95% of the work by July and we paid the balance of the contract*in full.*After completing most of the work in the contract (except for two line items for labor or materials we later found out he did not perform or provide), he sent us a bill for an additional $6,800 claiming additional work and material overages. Aside from the first Change Order, he never discussed any additional work or materials and everything listed on the bill was for work/materials covered under the contract. We tried to contact him to discuss the bill and credits we were due and*both the office manager and the site manager told us he would contact us but he never did. He did, however, quickly file a lien and then file suit. He did not file suit on the lien in Circuit Court though - he filed on breach of contract and account stated in district court. After asking around, I knew that the Judge we were assigned to was not going to dismiss just because he didn't diligently follow rules concerning Notice of Furnishing and such so we didn't bother going that route. Honestly, it seemed pointless given how slam dunk things seemed... we have a contact for a firm, stated amount. The contract states it can only be changed in writing with both parties signing. Only one such change happened. We have a copy of our certified check, which was cashed. Done deal, right? Here is the kicker - we were already planning on suing this idiot once the house was finished. He made a HUGE error when digging the basement and when the township caught the error, he outright lied to avoid fixing it. We believed his lie and moved forward making changes to the job site to accommodate the error that cost us almost $20k. Also, because of his fraudulent lien on our title, we could not refinance out of our construction loan and have paid about $24k in interest and penalties to date. So we filed our answer, our aff. defenses and*counter sued for $20k+ (we hadn't incurred the penalties and interest at that point). We kept GREAT records - photos, receipts, site plans, phone records, emails, etc -*and had*several witnesses who were eager to make this guy answer for his lies. Also, there is some pretty good case law, with nearly identical details, backing our argument.*Basically, our plan was to let him put on his case,*move for a directed verdict and then proceed with our counter claim. We had a standing motion prior to trial asking to amend our witness and exhibit list (nothing that wasn't already submitted to the court previously or that wasn't also on the other side's lists.)
Before we can even speak, the judge basically asks P's attorney to show how he would be prejudiced by allowing the amendment and he proceeds to ignore her question and motions the court for a directed verdict. This judge is known for being a bit wishy washy and not at all assertive or in control of her own courtroom so I wasn't super shocked that she just let him ramble on. Basically, his argument was that he was entitled to a directed verdict because we didn't file a counter-affidavit so we defacto agree to owing the amount stated in his client's affidavit - and since he now*established*prima fascia case, an automatic judgement should be entered in his favor, making our motion irrelevant.*Prior to this hearing on OUR motion, we had not been noticed or served with his motion or brief, although I don't think that's*required with a motion for DV. I only bring that up because the judge allowed us a 10-15 minute recess to read his brief and formulate an argument. The fun part of that is because we are not attorneys, we were not allowed to bring in a phone or computer into the courthouse - no phone, no computer... no internet. The time allowed was not enough to go out to the car, research and return in time. When she came back in, we argued that the purpose of the affidavit is for a plaintiff to swear "under oath" that the debt is owed because nothing else is signed by him - his attorney wrote and signed all the court pleadings. An affidavit basically eliminates the chance of the P ever claiming later that he had "no knowledge" if an amount was found to be misstated or fraud was being committed. However, because we are in pro per, every pleading entered with the court, denying the existence of this debt and specifically challenging the fraudulent claims made in P's affidavit, were written and signed by us - and entering them with the court is our assertion, under penalty of law, that they are true and correct. In effect, our entire answer, aff def and counter are one long*affidavit. She denied that argument and entered a judgment for the P - she even gave him a couple thousand for attorney fees. When my husband went up to the bench to sign whatever it was the judge wanted him to sign, she said "you need to get a lawyer". DUH - we tried and tried to find a lawyer but either they "didn't litigate" or our claim was too small for them to bother or their schedule was already too full. Believe me - we tried and we continued to try through most of the last 8 months.*
SO, as luck would have it (I say with sarcasm), our plumber*mentioned that his attorney might be available - he tells us this on the Saturday before our Monday trial. UGGGHHHH I've called and talked to him a couple of times. He also has a full calendar BUT he said that if I can do the research and compose the pleadings, he will review and sign them and represent us in court if needed. But I have to be able to do the legwork. Sidenote: My degree is in paralegal studies and I spent most of my working days in one of those scummy debt collecting law firms - in commercial collections. I was a single mom and it was the only job I could find with the hours I needed - don't judge
*
He said that we should consider filing a motion for reconsideration and/or a motion for judgment notwithstanding the verdict. He said he thinks we have cause for appeal but he has cautioned that it WILL be expensive and time consuming so that it's important to get these two motions right and hopefully save ourselves the hassle of appeal. I should say that the judge has often seemed very eager to help us,*has begged us to get an attorney many times and has all but said we would have won with one. I wish her desire to help gave her a backbone big enough to control her courtroom but that's neither here nor there at this point. I honestly think there is a chance she would grant a motion to reconsider under two conditions - the first and definitely most important*is that we have an attorney. The second is that we give her what she needs in our motion brief - if we can show that we would likely win an appeal, I think she'll reconsider. I know its rare but we have to try.
I said a brief background - I lied. I'm sorry Here's what I need to know now
1) The issue of us not filing a counter affidavit is a fact known to the Plaintiff Attorney as of May 4th when we entered an Amended Complaint. Is there an argument to be made that he did not raise the issue timely by waiting 3.5 months and that the judge shouldn't have even heard his motion based on this argument? Shouldn't he have just filed a MSD back in May on a claim like this? If so, I really, really, really need any Michigan court rules or case law that back it up. Again, I've googled it to death and I have no access to LN or other search engines.
2) Is the fact that we didn't put our denial of the account stated and attached affidavit onto a single page with a heading saying "counter affidavit" really so big of a deal breaker that a judgment so grossly inequitable can be ordered? Is there any case law pertaining to*a pro per defendant's answer being considered the counter affidavit? Or any other argument that can be made along those lines here?
3) Can we argue that the time had passed for dispositive*motions to be brought and that the court erred in hearing P's motion? This I'm less sure will work because it was a directed verdict motion which is always brought at trial so obviously the time hadn't passed. However, I couldn't bring a motion for DV based on improper service at the trial. There is usually a certain amount of time someone has to motion based on a failure by the other party. At a minimum, could we ask the court to reconsider the award of attorney fees based on P's failure to file a MSD right after the answer was filed? He only incurred additional expenses because of his incompetence or sleaziness (a part of me is pretty certain he waited until trial day to point out the lack of affidavit because if he had filed a MSD, we would have just filed one with the court immediately upon receiving his motion and the court, no doubt, would have accepted it, late as it was. The way he did it allowed him to bill dozens of more hours to his client AND it meant we were blindsided.)
if you made it this far, I appreciate it and am grateful for any help you can offer!
I have been searching for hours,*I'm coming up empty and I'm running out of time...
quick backstory: we built a new house starting in April of last year. We entered into a contract with the excavator/cement contractor for a set amount after he submitted a series of bids over a few months that increased from approx $23k to the final contract amt of $31k. A few weeks after the contract was signed, he submitted a change order increasing the contract to just under $35k. We agreed to it and signed it. He completed 95% of the work by July and we paid the balance of the contract*in full.*After completing most of the work in the contract (except for two line items for labor or materials we later found out he did not perform or provide), he sent us a bill for an additional $6,800 claiming additional work and material overages. Aside from the first Change Order, he never discussed any additional work or materials and everything listed on the bill was for work/materials covered under the contract. We tried to contact him to discuss the bill and credits we were due and*both the office manager and the site manager told us he would contact us but he never did. He did, however, quickly file a lien and then file suit. He did not file suit on the lien in Circuit Court though - he filed on breach of contract and account stated in district court. After asking around, I knew that the Judge we were assigned to was not going to dismiss just because he didn't diligently follow rules concerning Notice of Furnishing and such so we didn't bother going that route. Honestly, it seemed pointless given how slam dunk things seemed... we have a contact for a firm, stated amount. The contract states it can only be changed in writing with both parties signing. Only one such change happened. We have a copy of our certified check, which was cashed. Done deal, right? Here is the kicker - we were already planning on suing this idiot once the house was finished. He made a HUGE error when digging the basement and when the township caught the error, he outright lied to avoid fixing it. We believed his lie and moved forward making changes to the job site to accommodate the error that cost us almost $20k. Also, because of his fraudulent lien on our title, we could not refinance out of our construction loan and have paid about $24k in interest and penalties to date. So we filed our answer, our aff. defenses and*counter sued for $20k+ (we hadn't incurred the penalties and interest at that point). We kept GREAT records - photos, receipts, site plans, phone records, emails, etc -*and had*several witnesses who were eager to make this guy answer for his lies. Also, there is some pretty good case law, with nearly identical details, backing our argument.*Basically, our plan was to let him put on his case,*move for a directed verdict and then proceed with our counter claim. We had a standing motion prior to trial asking to amend our witness and exhibit list (nothing that wasn't already submitted to the court previously or that wasn't also on the other side's lists.)
Before we can even speak, the judge basically asks P's attorney to show how he would be prejudiced by allowing the amendment and he proceeds to ignore her question and motions the court for a directed verdict. This judge is known for being a bit wishy washy and not at all assertive or in control of her own courtroom so I wasn't super shocked that she just let him ramble on. Basically, his argument was that he was entitled to a directed verdict because we didn't file a counter-affidavit so we defacto agree to owing the amount stated in his client's affidavit - and since he now*established*prima fascia case, an automatic judgement should be entered in his favor, making our motion irrelevant.*Prior to this hearing on OUR motion, we had not been noticed or served with his motion or brief, although I don't think that's*required with a motion for DV. I only bring that up because the judge allowed us a 10-15 minute recess to read his brief and formulate an argument. The fun part of that is because we are not attorneys, we were not allowed to bring in a phone or computer into the courthouse - no phone, no computer... no internet. The time allowed was not enough to go out to the car, research and return in time. When she came back in, we argued that the purpose of the affidavit is for a plaintiff to swear "under oath" that the debt is owed because nothing else is signed by him - his attorney wrote and signed all the court pleadings. An affidavit basically eliminates the chance of the P ever claiming later that he had "no knowledge" if an amount was found to be misstated or fraud was being committed. However, because we are in pro per, every pleading entered with the court, denying the existence of this debt and specifically challenging the fraudulent claims made in P's affidavit, were written and signed by us - and entering them with the court is our assertion, under penalty of law, that they are true and correct. In effect, our entire answer, aff def and counter are one long*affidavit. She denied that argument and entered a judgment for the P - she even gave him a couple thousand for attorney fees. When my husband went up to the bench to sign whatever it was the judge wanted him to sign, she said "you need to get a lawyer". DUH - we tried and tried to find a lawyer but either they "didn't litigate" or our claim was too small for them to bother or their schedule was already too full. Believe me - we tried and we continued to try through most of the last 8 months.*
SO, as luck would have it (I say with sarcasm), our plumber*mentioned that his attorney might be available - he tells us this on the Saturday before our Monday trial. UGGGHHHH I've called and talked to him a couple of times. He also has a full calendar BUT he said that if I can do the research and compose the pleadings, he will review and sign them and represent us in court if needed. But I have to be able to do the legwork. Sidenote: My degree is in paralegal studies and I spent most of my working days in one of those scummy debt collecting law firms - in commercial collections. I was a single mom and it was the only job I could find with the hours I needed - don't judge
*He said that we should consider filing a motion for reconsideration and/or a motion for judgment notwithstanding the verdict. He said he thinks we have cause for appeal but he has cautioned that it WILL be expensive and time consuming so that it's important to get these two motions right and hopefully save ourselves the hassle of appeal. I should say that the judge has often seemed very eager to help us,*has begged us to get an attorney many times and has all but said we would have won with one. I wish her desire to help gave her a backbone big enough to control her courtroom but that's neither here nor there at this point. I honestly think there is a chance she would grant a motion to reconsider under two conditions - the first and definitely most important*is that we have an attorney. The second is that we give her what she needs in our motion brief - if we can show that we would likely win an appeal, I think she'll reconsider. I know its rare but we have to try.
I said a brief background - I lied. I'm sorry
Here's what I need to know now1) The issue of us not filing a counter affidavit is a fact known to the Plaintiff Attorney as of May 4th when we entered an Amended Complaint. Is there an argument to be made that he did not raise the issue timely by waiting 3.5 months and that the judge shouldn't have even heard his motion based on this argument? Shouldn't he have just filed a MSD back in May on a claim like this? If so, I really, really, really need any Michigan court rules or case law that back it up. Again, I've googled it to death and I have no access to LN or other search engines.
2) Is the fact that we didn't put our denial of the account stated and attached affidavit onto a single page with a heading saying "counter affidavit" really so big of a deal breaker that a judgment so grossly inequitable can be ordered? Is there any case law pertaining to*a pro per defendant's answer being considered the counter affidavit? Or any other argument that can be made along those lines here?
3) Can we argue that the time had passed for dispositive*motions to be brought and that the court erred in hearing P's motion? This I'm less sure will work because it was a directed verdict motion which is always brought at trial so obviously the time hadn't passed. However, I couldn't bring a motion for DV based on improper service at the trial. There is usually a certain amount of time someone has to motion based on a failure by the other party. At a minimum, could we ask the court to reconsider the award of attorney fees based on P's failure to file a MSD right after the answer was filed? He only incurred additional expenses because of his incompetence or sleaziness (a part of me is pretty certain he waited until trial day to point out the lack of affidavit because if he had filed a MSD, we would have just filed one with the court immediately upon receiving his motion and the court, no doubt, would have accepted it, late as it was. The way he did it allowed him to bill dozens of more hours to his client AND it meant we were blindsided.)
if you made it this far, I appreciate it and am grateful for any help you can offer!
