+ Reply to Thread
Results 1 to 5 of 5
  1. #1
    Frosty14 is offline Junior Member
    Join Date
    Jun 2009
    Posts
    3

    Reasons that stand up in small claims court to countersue

    WA- We are in the process suing a subcontractor for breach of contract in small claims court. (faulty workmanship) Now they are threatening to counter sue because they believe it is a false claim? Assumming the judge either sides with us or has no decision, does thier countersuit stand any chance at winning? What are valid reasons to counter sue that stand up in court?
  2. #2
    latigo is offline Senior Member
    Join Date
    Apr 2009
    Posts
    3,724
    This jerk is bluffing!

    A defendant in a civil action CANNOT “counter sue” the plaintiff on the sole grounds that the evidence and applicable law doesn’t support the plaintiff’s claim. (Or as the sub has indicated, your claim against him is FALSE).

    That begs the entire question. And it’s question for the court to decide.

    If that is all the boob proposes to tell the court - that your claim is false - the court will treat it as a denial of your claim and proceed with the trial. Substance and not form control.

    A counterclaim is a separate cause of action brought against the plaintiff in the same lawsuit in which the defendant/counterclaimant seeks positive relief from the court. Generally arising out of the same set of circumstances described in the plaintiff’s pleading.

    But a responsive pleading that simply alleges that the plaintiff’s claims is legally untenable (for whatever reason) is NOT a counterclaim.

    [A counterclaim can be made on the basis that the plaintiff’s cause of action has been brought maliciously and thus is alleged to constitute an abuse of process. But that is an area of substantive and procedural law not presented here.]

    Talk is cheap so let the guy squawk all he wants. Just make sure that you have competent, strong evidence to prove your case against him.

    A cardinal rule followed by good trial lawyers is that they rely on the strength of their client’s case. Never on the weakness of the opponents case.

    Another rule is preparation, preparation, preparation, etceteras ……

    I’ve seen hundreds of lawsuits over tried, but never one over prepared. And that applies at every level – small claims to appellate cases.

    Sax
  3. #3
    tranquility is offline Senior Member
    Join Date
    Mar 2006
    Posts
    18,756
    I love latigo, but:
    A defendant in a civil action CANNOT “counter sue” the plaintiff on the sole grounds that the evidence and applicable law doesn’t support the plaintiff’s claim.
    Sure they can. That is pretty much the definition of malicious prosecution.

    While I like the rest, this is a very unfortunate phraseation. (Is that a word?)
  4. #4
    latigo is offline Senior Member
    Join Date
    Apr 2009
    Posts
    3,724
    tran:

    Read the small print!

    “A counterclaim can be made on the basis that the plaintiff’s cause of action has been brought maliciously and thus is alleged to constitute an abuse of process.”
  5. #5
    jhlwstdnt is offline Member
    Join Date
    May 2009
    Posts
    36
    Looking at this with my architect/contractor hat on, I'm with Tranquility. The sub in this case could be stating a fact. I glanced at the Washington Construction Law Manual and did not find a "faulty workmanship" cause of action.

    I know what the OP infers, but I see many Owner's and general contractors abuse their superiority over subs, many times to avoid payments. There really aren't enough facts here to claim that the sub cannot counter sue for malicious prosecution.

Similar Threads

  1. Countersue in NH small claims
    By hwkkix in forum Libel / Slander / Defamation
    Replies: 4
    Last Post: 06-20-2011, 04:20 PM
  2. Replies: 6
    Last Post: 02-19-2009, 01:15 PM
  3. What court process for claims bigger than small claims amount?
    By mdb31483 in forum Small Claims Courts
    Replies: 1
    Last Post: 09-25-2005, 07:40 AM

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •  

© 1995-2012 Advice Company, All Rights Reserved

FreeAdvice® has been providing millions of consumers with outstanding advice, free, since 1995. While not a substitute for personal advice from a licensed professional, it is available AS IS, subject to our Disclaimer and Terms & Conditions Of Use.