Please help! Can I sue?

[mznatalie]

What is the name of your state (only U.S. law)? PA

I am a freelance web designer and back in May I created a website for a car dealership. The site has been up and running since the end of May and I have even seen them advertising the website on autotrader and obviously they are using the site because they have uploaded about 80 cars to the database. I talk to the owners through email and telephone and they keep promising payment but keep giving me excuses on why they haven't paid. Once it was one owner had a baby and the next the other owner had a baby so they hadn't gotten around to paying it. Through all of this they still email asking for small little updates and I do them because I dont want them to use that against me in court. Do I even have a case because they never signed a contract. All I have are all of the source files for the work that I did and a couple of emails sayings that they will pay but it doesn't say when or how much. Do I even have a chance?

 

[mznatalie]

please any advice is helpful

 

[dcatz]

You have a case. Even without a contract, you’re entitled to the “reasonable value” of services that weren’t rendered gratuitously. Depending on the laws of your state, if you’ve been sending monthly bills and have maintained a ledger of their growing obligation, you may have additional causes of action for Account Stated and Open Book Account.

Make a written demand for payment within 30 days of the demand date and send it CRRR. Then file and serve. The hearing date will be more than 30 days, and service may be the “wake-up call” they need.

You’ll have a short time to present your case in Small Claims, so organize your evidence in a “trial book” and prepare a second copy for the Court so that you can move through it together.

Your evidence should include, to the extent possible:
Records of the work done (source code and time expended).
Records of data uploaded to the site.
Evidence that the site is operating and used.
Billing that you sent (invoices are preferable to email, but use what you have).
Evidence of your normal billing rate (statements, promotional material, billings paid by others).

You’re the claimant. You go first. Tell your story and walk the Court through the evidence at the same time.

Then, listen carefully to what the defendants say in rebuttal. Address those arguments as necessary.

Make sure that you correctly identify the defendant(s) when filing. Start treating your business like a business. Use contracts. Send statements. Get an advance if you have doubts about creditworthiness.

 

[mznatalie]

THANK YOU SO MUCH. I was about to bite the bullet and just let them keep the website. Its good to know that i have a case

 

[dcatz]

Use the trial book to explain the development of the claim, what you did and why you're entitled to your award. Make it a story. The Court will be hearing it for the first time.

Post back with any questions, as you move forward.

 

[vipervin]

I do freelancing website design on the side as well. If I did not receive payment, especially after several months, I would take down the website. I am assuming you still have FTP access to the host, right? Just go in there and change the index file to something else... this may wake them up.

 

[dcatz]

If I did not receive payment, especially after several months, I would take down the website.

Not the right option, in my opinion. In fact, dangerous to the theory of recovery. Permit a simple analogy:

I specialize in masonry, and you hire me to design and build a wall on your property. You don’t pay me promptly, so I go and disassemble the wall and truck the materials away. Now you no longer have the wall that I would still like to be paid for, I have rubble that I may or may not be able to use again and your property is vulnerable and is damaged by the cattle stampede the wall was intended to prevent.

It’s a rotten analogy, but I don’t feel like being more exacting, and it still works on many levels. The OP doesn’t own the site, didn’t pay for the domain name or the bandwidth. The OP enhanced the property of another. Crash the site and the OP creates commercial damage that is the basis of a counter-claim, not to mention exposure to criminal charges. There is no mention of a contract spelling out the rights of the parties, and that fact is only likely to work against the OP. I could continue stretching the analogy, but I hope you get the point if that’s the solution you’d choose.

Why take a simple matter of a claim for money due for services rendered and turn it into something that can bite back?

 

[vipervin]

Not the right option, in my opinion. In fact, dangerous to the theory of recovery. Permit a simple analogy:

I specialize in masonry, and you hire me to design and build a wall on your property. You don’t pay me promptly, so I go and disassemble the wall and truck the materials away. Now you no longer have the wall that I would still like to be paid for, I have rubble that I may or may not be able to use again and your property is vulnerable and is damaged by the cattle stampede the wall was intended to prevent.

It’s a rotten analogy, but I don’t feel like being more exacting, and it still works on many levels. The OP doesn’t own the site, didn’t pay for the domain name or the bandwidth. The OP enhanced the property of another. Crash the site and the OP creates commercial damage that is the basis of a counter-claim, not to mention exposure to criminal charges. There is no mention of a contract spelling out the rights of the parties, and that fact is only likely to work against the OP. I could continue stretching the analogy, but I hope you get the point if that’s the solution you’d choose.

Why take a simple matter of a claim for money due for services rendered and turn it into something that can bite back?

I think you are over-thinking it. The OP owns the source code seeing how he wrote it. He can do whatever he wants with it. He gave plenty of time to the client to pay for his services. Taking the client to court would just take unnecessary, lengthy, and costly time.

KISS.. keep it simple. Start off by emailing the client that you will be removing the source code you wrote if payment isn't received within a week or two. He isn't doing anything to the host, domain name, etc. just his own source code. That should get the ball moving in the right path.

 

[dcatz]

The OP owns the source code seeing how he wrote it. He can do whatever he wants with it.

A dangerous and unwarranted assumption.

My instinct was to leave this thread on a “reasonable minds differ” theory, but there may be others similarly situated and, if so, I was too facile in my analogy. Something involving IP law, software development contacts, the custom and practice of the industry in the absence of contact and passage of title was seemingly warranted.

These situations cut two ways, and it would be unreasonable to contemplate that software development cannot continue because the vendor defaults or terminates. To that end, title transfer should include documentation, source code and all intermediate products delivered against specific product payments. In this instance, there were no payments. Did title pass, leaving a claim for payment or does title still reside with the OP? Assume payment was made. Does the OP still own the source code?

Those are rhetorical questions that you can deal with in your own business. I think the OP has gone and I’m finished. Small Claims litigation is quick and inexpensive. Commercial litigation in a higher forum can be costly and protracted. I agree – KISS. The OP has the choice of being plaintiff or defendant. I’d choose plaintiff.

 

[mznatalie]

I have already sent an email telling him I was going to take the site down that didn't work.. ( I even removed the site for a day but put it back after he called asking what happened and asked if I could put it back up) I also gave him a certain amount of time to pay that didn't work either. He just keeps telling me that they've been in business 10 years and they've never stiffed anyone how they have just been busy and keep forgetting and every day he promises to pay that day and how he didn't want to work out a payment arrangement cuz it wasn't necessary he wanted to pay it off completely but he never did that.

 

[mznatalie]

oops I forgot to mention the reason I didn't want to keep it down is because they can just find another web designer to build them a new site and that still leave me out of the money they owed and they can pull this same scam with someone else. When i first met these guys they had a site that was incomplete and now I see why!

 

[Crispix]

Just some advice for the next time around:

1. Never launch a web site until payment in full is received. Let them see the work on a staging area, but not on the real URL.

2. Never, ever, EVER release the source code until payment in full is received. That means no FTP passwords until you have your money.

3. Put this in your contracts: "payment indicates acceptance", and "launch indicates acceptance". I also have a very specific clause about ownership of code, and "upon payment in full" is the triggering event for transfer of ownership.

I went through a few similar stories back when my company first started out. Take pride in your work, and demand payment. You do not want to get in a situation where your customer feels like he's doing you a favor by paying. If they do not pay, they are not a customer at all.

I would have no problem turning off the web site, right now, and not turning it on until payment was received. If two weeks go by and they had not paid, then I would sue in small claims court. I used to be timid about such things, but no longer. I have not had a serious collections issue for several years as a result, and I have wonderful customers, too.

 

[mznatalie]

Thanks. I should have used better judgement. I always make the small businesses and start up companies sign contracts. I slacked off because this was a medium sized auto dealership so I figured they wouldn't be a risk BOY was I wrong!!

Just some advice for the next time around:

1. Never launch a web site until payment in full is received. Let them see the work on a staging area, but not on the real URL.

2. Never, ever, EVER release the source code until payment in full is received. That means no FTP passwords until you have your money.

3. Put this in your contracts: "payment indicates acceptance", and "launch indicates acceptance". I also have a very specific clause about ownership of code, and "upon payment in full" is the triggering event for transfer of ownership.

I went through a few similar stories back when my company first started out. Take pride in your work, and demand payment. You do not want to get in a situation where your customer feels like he's doing you a favor by paying. If they do not pay, they are not a customer at all.

I would have no problem turning off the web site, right now, and not turning it on until payment was received. If two weeks go by and they had not paid, then I would sue in small claims court. I used to be timid about such things, but no longer. I have not had a serious collections issue for several years as a result, and I have wonderful customers, too.

 

[mznatalie]

Can i only sue for the price of the website or can I sue for some sort of interest (there is no formal contract... Stupid I know) Can i sue for travel for having to file this claim I do not drive and have to pay someone to drive me to the court to file the claim which is 30 miles away. Can I sue for the extra work they asked me to do to "buy time." I added they additions to the site that weren't part of the original agreement but I did it because I just didn't want them to have an excuse not to pay me.

Please help normally I would just let this go but I have a feeling they have done this to other web designers that just let it go.