Builder threatens small claims court

[dogbitevic]

What is the name of your state? PA
Hi...We hired a builder last fall to build a house on our 1 acre property. The day they started to dig the silt fence to hold back soil was not yet set up. The excavator piled some on the dirt on the bottom branches of mature pine trees that make the border/divinding line between us & the neighbors. That night when we saw this, we taped a very large note to the machine telling the operator to not pile any more dirt on the tree branches b/c we didn't want them damaged. In the meantime, the township inspector saw that the required silt fence wasn't there. He contacted the builder immediately & someone from the crew cut back the branches on 6 trees...all the way to the trunks...to find level ground to put up the silt fence. We were very upset & let the builder know it but figured we'd wait until the end of the building process to ask for compensation since we still had to deal with him for the next 8 months.
Anyhow, we owe $2,800 and the final invoice is due. The builder literally has 99% of his money. We are going to go out & buy bushes or baby pines to fill in the spaces where the trees were cut...pine branches never grow back. We are holding the $2,800 to pay for the bushes/trees and told the builder that we'll pay him the difference once we know what it is. He is furious & dropped the "F" bomb on us numerous times in a very unprofessional manner. We cannot even have a civil conversation so we have been e-mailing back-n-forth. He says that if he doesn't have his $ by the end of this week, he'll take us to small claims court. I just wanted someone's thoughts as to whether we should let him take us...what is the most he could get out of us other than the $2,800 if we lose. Could we get more than $2,800 if a judge feels the builder is in the wrong? Also, I should note that our township inspector told us that he saw the note taped to the excavating machine, so I might ask him to sign a letter as proof that we absolutely didn't want those trees touched. We have an acre & there was plenty of room for the dirt to be piled.
Thanks for any advice!What is the name of your state?

 

[racer72]

I just wanted someone's thoughts as to whether we should let him take
us...what is the most he could get out of us other than the $2,800 if we lose

Besides the money, you will get to pay his court costs and any attorney fees.

Also, I should note that our township inspector told us that he saw the note taped to the excavating machine, so I might ask him to sign a letter as proof that we absolutely didn't want those trees touched.

You could subpoena the inspector to appear in court but his testimony is really irrelevent to the actual cause of action.

I will now tell you why you will lose your court case and the trial will be a relatively short one. You have a contract to pay the contractor X number of dollars. You are now withholding money contractually owed because of something that is outside of the contract. There is only one person that can alter the legally binding contract you have and it is not you. At this time you have no legal right to keep the money.

Now you may be asking, what can I do? Simple. Pay the man his money and get a receipt that says paid in full. You then hire someone to look at the trees and make a determination of the damage and how much it would cost to make you whole again. You then sue the contractor for this amount. You present your proof and possible bring the person that looked at the trees as an witness. If the judge determines you have a loss, a judgement will be granted then you can start calling the contractor and demand your money or use other legal methods to collect.

 

[dcatz]

what is the most he could get out of us other than the $2,800 if we lose.

I would be at least as concerned that he chooses not to go to court and files a mechanics lien instead.

Could we get more than $2,800 if a judge feels the builder is in the wrong?

Your SC limit is $8,000, so I would think that the answer would be yes, but only if you file a counter-claim, or start the ball rolling, if he doesn't. If he sues and you just defend, he'll lose if he can't prove his case, but you don't get rewarded instead. You have to have your own case - claim or counter-claim.

 

[Zigner]

As a bit of a clarification to what Racer said. You should get the quotes NOW and file a counter-claim when you are sued. Anything he "wins" will be offset by anything you "win". So, if he wins $2,800 but you win $3,000 - he will end up paying you the remaining $200.
And, I do feel that your case IS a part of the contract, because the contractor did damage during the performance of his contract with you...so you won't have a problem bringing the counter-claim at the same time.

 

[dogbitevic]

Thank you

Thank you for all of the advice. It gives us some things to consider by the end of the week deadline.... I did post my dilemma under the "Construction" section of the Real Estate forum b/c I thought someone familiar with builders & their contracts might have some advice too.
I'll keep you all posted as to what we decide & what transpires.

 

[dcatz]

OP – I don’t know if the responses seem confusing but, actually, they’re very similar and just approach your question from different angles.
If there was confusion, I may add to it. I said your jurisdictional limit is $8,000 but, in Philadelphia, where Small Claims are heard in Magistrates Court, it’s $10,000. Elsewhere, Small Claims are heard in District Courts, but District Courts don’t hear real estate cases, so, if you must appear in District Court, you’d have to frame your claim or counter-claim in terms of a contractual breach or damage to personal property (the trees), not damage to real property. ‘Tho I see nothing wrong with racer’s analysis, particularly because it avoids the prospect of a mechanics lien (be wary of the lien), I suspect that you’d rather not pay and then sue, and that Zigner’s approach is more appealing.