Motion to Dismiss not available for defendant?

[divona2000]

What is the name of your state? Michigan

On March 9, 2015 the underground waterpipe, running from the outside well underneath & into our rental home, froze.
When contacted, our landlord advised us to call "J" Well Drilling, the company who had installed the well & pipes.
Two of their employees came out, after 1 and 1/2 hours they stated they couldn't thaw the pipe, because they couldn't get past a 'splice in the line' and they left, after quoting us a $1,000 estimate to dig up the well. (Landlord later told us there is no 'splice').
My husband was able to thaw the pipe himself.

We later purchased the home on March 23, 2015
6 months later, on Aug 24, 2015, "J" Well Drilling sent an invoice to us, for $450, claiming 3 hours of labor & travel time (it's a 21 mile drive one way).

Since then, they occasionally sent another copy of that invoice to us.
We had made it clear on March 9 that we did not own the house & the landlord had requested we call them.
"J" Well Drilling has never responded to our request for a copy of a work order signed by either of us (we never signed one).

However, now, over 4 and 1/2 years later, they have filed in Small Claims court for $495 & court costs, claimed 'Unpaid invoice for work completed', and stating the date claim arose as 8/24/2015.

Now the question part:
When I called the Court Clerk and explained that we wanted to file a Motion to Dismiss with Prejudice, based on:
1. "J" Well Drilling not completing any work.
2. They left without requesting any payment, or leaving an invoice for our landlord, or even telling us that any money was due.
3. Our not even owning the home at the time they were there.
4. The long length of time that has passed since then.

The Clerk told me there is NO form for the Defendant to file a Motion to Dismiss, only for the Plaintiff to do so, and that all we could do is write our explaination out & mail it to "J" Well Drilling, asking them to Dismiss (I consider they are unlikely to do so).

~Is this correct? We can't file anything to directly ask the court to dismiss this suit?

(Also, on the Affidavit & Claim, they checked #11 "I believe the defendant is NOT mentally competent". Does this make any difference?)

What legal advice can you give me regarding this?
Thank you

 

[quincy]

What is the name of your state? Michigan

On March 9, 2015 the underground waterpipe, running from the outside well underneath & into our rental home, froze.
When contacted, our landlord advised us to call "J" Well Drilling, the company who had installed the well & pipes.
Two of their employees came out, after 1 and 1/2 hours they stated they couldn't thaw the pipe, because they couldn't get past a 'splice in the line' and they left, after quoting us a $1,000 estimate to dig up the well. (Landlord later told us there is no 'splice').
My husband was able to thaw the pipe himself.

We later purchased the home on March 23, 2015
6 months later, on Aug 24, 2015, "J" Well Drilling sent an invoice to us, for $450, claiming 3 hours of labor & travel time (it's a 21 mile drive one way).

Since then, they occasionally sent another copy of that invoice to us.
We had made it clear on March 9 that we did not own the house & the landlord had requested we call them.
"J" Well Drilling has never responded to our request for a copy of a work order signed by either of us (we never signed one).

However, now, over 4 and 1/2 years later, they have filed in Small Claims court for $495 & court costs, claimed 'Unpaid invoice for work completed', and stating the date claim arose as 8/24/2015.

Now the question part:
When I called the Court Clerk and explained that we wanted to file a Motion to Dismiss with Prejudice, based on:
1. "J" Well Drilling not completing any work.
2. They left without requesting any payment, or leaving an invoice for our landlord, or even telling us that any money was due.
3. Our not even owning the home at the time they were there.
4. The long length of time that has passed since then.

The Clerk told me there is NO form for the Defendant to file a Motion to Dismiss, only for the Plaintiff to do so, and that all we could do is write our explaination out & mail it to "J" Well Drilling, asking them to Dismiss (I consider they are unlikely to do so).

~Is this correct? We can't file anything to directly ask the court to dismiss this suit?

(Also, on the Affidavit & Claim, they checked #11 "I believe the defendant is NOT mentally competent". Does this make any difference?)

What legal advice can you give me regarding this?
Thank you

The court clerk was correct. You cannot dismiss someone else's lawsuit.

Your options are to mediate, settle, appear in court, or remove the case to the district court. You could also countersue.

The most important thing for you to do right now, because time is limited, is to file an answer to the complaint.

 

[adjusterjack]

The most important thing for you to do right now, because time is limited, is to file an answer to the complaint.

The Michigan complaint form doesn't require the filing of an answer. It instructs the defendant to appear on the date specified for the hearing to answer the allegations:

https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/dc84.pdf

We can't file anything to directly ask the court to dismiss this suit?

No. You go to court and defend yourself against the allegations.

(Also, on the Affidavit & Claim, they checked #11 "I believe the defendant is NOT mentally competent". Does this make any difference?)

Might or might not have been intentional. The boxes are very close to each other. Probably irrelevant anyway.

As for your defenses:

1. "J" Well Drilling not completing any work.

No, they made a service call. It may have been unsuccessful but two men worked on the problem for 1.5 hrs each. Travel time is often customary for that kind of service call.

2. They left without requesting any payment, or leaving an invoice for our landlord, or even telling us that any money was due.

None of that is a defense to potentially owing the money.

3. Our not even owning the home at the time they were there.

That's a possible defense but you'd have to show that you were acting as agent for the owner. Can you prove that? Even tenants can incur repair costs on their own.

4. The long length of time that has passed since then.

Another possible defense is called "laches."

https://en.wikipedia.org/wiki/Laches_(equity)
You might or might not be able to convince the judge that you have been prejudiced or harmed by the delay.

 

[quincy]

Filing an answer to a small claims complaint is not required but I recommend filing an answer for several reasons.

The defendant's answer can convince a plaintiff to dismiss the suit (e.g., plaintiff sees there is no easy default judgment on the horizon) and the answer is the starting point for negotiations and settlements. The answer (use civil answer form) is where you can list your affirmative defenses.

I agree that the mismarking of Box #11 should not be a problem.

 

[adjusterjack]

Filing an answer to a small claims complaint is not required but I recommend filing an answer

Probably a good idea but MI doesn't have a small claims form for it:

https://courts.michigan.gov/Administration/SCAO/Forms/Pages/Small-Claims.aspx
OP will have to create something or modify this one to suit:

https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc03.pdf

 

[quincy]

Most small claims courts in Michigan that I am familiar with have answer forms available from the court clerk in the court. They are an abbreviated civil form.

Divonna, although it has been a long time since the well company was at the house, the statute of limitations is 6 years (the company has 6 years to file suit).

 

[LdiJ]

What is the name of your state? Michigan

On March 9, 2015 the underground waterpipe, running from the outside well underneath & into our rental home, froze.
When contacted, our landlord advised us to call "J" Well Drilling, the company who had installed the well & pipes.
Two of their employees came out, after 1 and 1/2 hours they stated they couldn't thaw the pipe, because they couldn't get past a 'splice in the line' and they left, after quoting us a $1,000 estimate to dig up the well. (Landlord later told us there is no 'splice').
My husband was able to thaw the pipe himself.

We later purchased the home on March 23, 2015
6 months later, on Aug 24, 2015, "J" Well Drilling sent an invoice to us, for $450, claiming 3 hours of labor & travel time (it's a 21 mile drive one way).

Since then, they occasionally sent another copy of that invoice to us.
We had made it clear on March 9 that we did not own the house & the landlord had requested we call them.
"J" Well Drilling has never responded to our request for a copy of a work order signed by either of us (we never signed one).

However, now, over 4 and 1/2 years later, they have filed in Small Claims court for $495 & court costs, claimed 'Unpaid invoice for work completed', and stating the date claim arose as 8/24/2015.

Now the question part:
When I called the Court Clerk and explained that we wanted to file a Motion to Dismiss with Prejudice, based on:
1. "J" Well Drilling not completing any work.
2. They left without requesting any payment, or leaving an invoice for our landlord, or even telling us that any money was due.
3. Our not even owning the home at the time they were there.
4. The long length of time that has passed since then.

The Clerk told me there is NO form for the Defendant to file a Motion to Dismiss, only for the Plaintiff to do so, and that all we could do is write our explaination out & mail it to "J" Well Drilling, asking them to Dismiss (I consider they are unlikely to do so).

~Is this correct? We can't file anything to directly ask the court to dismiss this suit?

(Also, on the Affidavit & Claim, they checked #11 "I believe the defendant is NOT mentally competent". Does this make any difference?)

What legal advice can you give me regarding this?
Thank you

Those are all things that could/should be listed in your response to the lawsuit. However, it might just be simpler to focus on the fact that you were not the owner of the home at the time, and that any bill from the Plaintiff was the responsibility of your landlord. You called them on behalf of your landlord, at his instruction. You believed that they understood that at the time, as they did not ask you for payment nor give you an invoice.

 

[quincy]

Divona2000, you purchased the house 14 days after the company came out to thaw the pipe. Did the pipe-thawing have anything to do with a purchase agreement you had with the landlord/seller?

 

[Ohiogal]

Those are all things that could/should be listed in your response to the lawsuit. However, it might just be simpler to focus on the fact that you were not the owner of the home at the time, and that any bill from the Plaintiff was the responsibility of your landlord. You called them on behalf of your landlord, at his instruction. You believed that they understood that at the time, as they did not ask you for payment nor give you an invoice.

You cannot say this. You cannot say that they were not responsible for the bill.

 

[Zigner]

You cannot say this. You cannot say that they were not responsible for the bill.

Agreed (quoting for visibility). If the tenant (OP) contracted for the service(s), that doesn't automatically make the homeowner liable for the bill.

 

[Litigator22]

Filing an answer to a small claims complaint is not required but I recommend filing an answer for several reasons. . . .

My, my . . . how quickly your urgency to "file an answer to the complaint'' suddenly fled be replaced with such fragile argument that it is always best that a defendant freely reveal his hand.

 

[Just Blue]

My, my . . . how quickly your urgency to "file an answer to the complaint'' suddenly fled be replaced with such fragile argument that it is always best that a defendant freely reveal his hand.

Run out of puppies to kick?

 

[not2cleverRed]

Run out of puppies to kick?

"When you have eliminated the impossible, whatever remains, however improbable, must be the truth." - Sir Arthur Conan Doyle.

I do believe you hit the nail on the head: he ran out of puppies to kick.

And perhaps quincy recalled divona's posting history. I would think that divona, given her financial past, would just deal with this. The guys worked/the guys are owed $ for their time/just pay it. Because $450 has now increased to $495 + court costs. But that's just me, maybe I'm a chump. Anyway she and her husband can either settle (pay) or choose to fight this (respond), and who knows, maybe they have legal reasons to prevail.

If divona truly believes that the former owner/ll should have paid it, she can go after him in small claims for reimbursement, if she and her husband wind up paying for it. However, before doing that, they should look over their purchase agreement. And any other communications with the former owner/ll about the pipes.

 

[Just Blue]

"When you have eliminated the impossible, whatever remains, however improbable, must be the truth." - Sir Arthur Conan Doyle.

I do believe you hit the nail on the head: he ran out of puppies to kick.

And perhaps quincy recalled divona's posting history. I would think that divona, given her financial past, would just deal with this. The guys worked/the guys are owed $ for their time/just pay it. Because $450 has now increased to $495 + court costs. But that's just me, maybe I'm a chump. Anyway she and her husband can either settle (pay) or choose to fight this (respond), and who knows, maybe they have legal reasons to prevail.

If divona truly believes that the former owner/ll should have paid it, she can go after him in small claims for reimbursement, if she and her husband wind up paying for it. However, before doing that, they should look over their purchase agreement. And any other communications with the former owner/ll about the pipes.

Should I change my user name to Watson???...hummm....nah...doesn't suit me.

 

[quincy]

My, my . . . how quickly your urgency to "file an answer to the complaint'' suddenly fled be replaced with such fragile argument that it is always best that a defendant freely reveal his hand.

Thank you, Litigator, for your loyal following.

I did not change my recommendation, by the way. I recommend that divona2000 file an answer to the complaint for the reasons given - and the time to file an answer is limited.

The answer to a complaint can lead to the plaintiff dismissing the action - and a dismissal of the action is what divona2000 expressed as her goal. Naming the wrong defendant in the action is certainly one good reason for a plaintiff to dismiss a suit.