Contractor is suing me for the redo of glass installation.

Contractor is suing me for additional charge. Should I countersue him?

What is the name of your state? Texas

Hello,
We (me and my business partner) have a small corporation and hired a contractor for a small remodeling project on our office. The remodel was completed and we paid all the balance, and now the contractor is suing me in small claims cout claiming that we have not paid a new additional charge. I need help!

Here is the detail.
In May 2003, we and the contractor signed the contract clearly stating "installation of tempered safety glass windows". We paid the half of the total cost at this time.

In June, when the job was completed, we discovered that the contractor installed wrong material to the windows: He installed "tempered ONE-WAY MIRROR" instead of regular tempered clear GLASS!! This mistake was critical for our business so we refused to pay the balance since it was a breach of the contract.

We however decided to give him a second chance to redo the glass installation and he agreed to do it at his own cost with no additional charge, which was verbal. At this point, he admitted that it was his mistake because he was confused with a previous project for someone else.

A few days later, he actually fixed the problem then we paid all the balance. However, a few weeks later I found that this contractor is suing me as an individual for small claims court claiming that I have not paid for the MIRROR installation/ removal and the material cost for the mirror. So he now wants me to pay for his mistake!

We went through a mediation arranged by the court but it did not work. We are currently waiting for any further action from the court.

My question is this. Can we counter-sue him for misleading/deceptive trade practice? If so, can we file in small claim court or should we hire an attorney? Or is there anything we can do to protect ourselves from this false claim?

BTY, we keep all the documents and some of them were written by himself, which all clearly show "Tempered glass", but none of them mentions "mirror" or "one-way". So I don't think he has a case at all.

Exactly. He made a mistake by installing the wrong glass. You contacted them ( gave him an opportunity to rectify the mistake ) to fulfill the contract.
He did so !! You paid him for the contracted work. End of Story.

Let him sue you. Tell your side of the story. You should win based on what you have posted here.

I don't know where you're getting deceptive practices ? I see nothing here by what you've posted , anything other than the glass installer trying to get you to pay for their mistake. He may state you told him Mirror verbally after signing the contract. It would mean nothing.

Your written and signed contract should prevail , he should lose, and End of Story !!

We want to counter sue him because....

Thank you for your response. I feel much better now.

I was talking to a couple of friends who have been in the construction business for years. They said what the contractor is doing is a violation of the Deceptive Trade Practices Law. They could not tell me what legal procedure should be taken since they were not lawyers. However, they suggested that we might need to do something to counterattack him. You can understand that even though we think he has no case and hope for winning in court there is no guarantee that we will win.

We are afraid that the judge may buy the contractor's story. We went to a mediation, arranged by the court, in a local university law school facility. The mediator, who introduced himself as "a former engineer and contractor", actually seemed to believe him.

During the mediation, the contractor insisted that WE asked him to install mirror glass even though it is not written on the contract and that we had changed the project, which is a lie. He also made up a story like "these ladies said we don't want any disturbance in the office so please install one-way mirror glass"

Even though we told our story and showed all the documents, the mediator told us that both side stories were so contradictory and this was a "He-says-she-says" situation since there was no solid evidence. I don’t understand that. We provided all paperwork to the mediator that shows precisely what we had determined with our contractor, and he signed off for all the work before he did it. I still do not know why he installed one way mirror glass and if this case goes to the court, the judge may favor the contractor.

We strongly believe we are not liable at all but the experience with this mediator scares us. So I feel we better do something more aggressive rather than waiting for the hearing.

I would check with the State's Business Licensing Bureau, to see if :

A) A business has to fill out a contract before preforming work. &
B) If there are any changes to the contract, it has to be in writing and signed by All parties.

It would seem so. One place to inquire is your State's Consumer Protection hotline. It's usually a toll free #. Also your local Attorney General's Office of consumer frauds and protection may know.
You could ask these places about the Deceptive Practices Act also.

You might file a counter for Deceptive Practices, in that you had a written Contract , signed by both Parties, and now the other Party has attempted to deceive you into paying more money , and claiming you had a verbal Contract.

If you can find a State Law that requires a Contractor, to make a new written contract for any new work negotiated, and the contractor did not fallow the Law, you may be awarded money damages.

If the terms of the work were changed prior to the work starting, the contract should have been rewritten .

Personally I don't see anything to mediate. It's not he said ,she said. The contract is in writing and signed.

I was doing some quick searching on deceptive Practices Act and The Law has actually changed It appears from Buyer Beware to Seller Beware .

First, the response by 'Blonde Lebinese' (sic) is not correct. Here are correct and appropriate answers:

jessica t said:

They said what the contractor is doing is a violation of the Deceptive Trade Practices Law.

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I disagree. The TDTPA is very broad in scope, but this appears to be more a matter of disagreement than any viable attempt to deception. The text of the TDTPA (look at § 17.46) can be found at:
http://www.capitol.state.tx.us/statutes/docs/BC/content/htm/bc.002.00.000017.00.htm#17.41.00

They could not tell me what legal procedure should be taken since they were not lawyers.

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First, you will not like the process required in order to assert a DTPA claim. It starts with sending the other party a letter detailing the complaint and that you feel it is a violation of the TDTPA. Then you have to give them 60 days to offer an acceptable remedy. If none is offered, or any offer is not acceptable, only then can you take legal action asserting a DTPA violation.

However, they suggested that we might need to do something to counterattack him.

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Again, I disagree. At this point, you apparently have not suffered any damages, and therefore have no reason for a claim against him. Wait for the court to have a hearing and issue a ruling. If you disagree with the order, then you can file an appeal.

You can understand that even though we think he has no case and hope for winning in court there is no guarantee that we will win.

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Nor is there a 'guarantee' you would win on any subsequent claim or suit.

We are afraid that the judge may buy the contractor's story.

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Then be prepared to appeal the ruling if needed.