As a homeowner, few situations are more frustrating than a dispute with a contractor over a relatively minor job. If there were a dispute on a large job, you would likely hire an attorney to sue. Nolo offers extensive guidance on construction defect disputes in Arizona. But for a small painting job, a bathroom retiling, or a window replacement, the cost of an attorney could easily surpass the amount for which you might be suing your contractor. All states, including Arizona, have small claims courts for just this type of problem.
If you have a dispute with your home contractor for up to $3,500, small claims court can be an invaluable resource. How can you recover this money from your contractor, without an attorney, in Arizona’s Small Claims Court?
Avoiding court might seem like counterintuitive advice for an article on suing in small claims court, but it's actually a very strategic approach to litigation. All litigation – even in small claims court, where procedures are relatively easy – is time-consuming and stressful. If you can negotiate an arrangement with your contractor without proceeding to court, you will both likely be better off.
Begin with a conversation with your contractor about the situation. Refer to relevant portions of the written contract or agreement, if you have one. Remind the contractor what was promised, and inquire as to the problem – are materials more expensive than originally thought? Is the job more complex? What would the contractor need in order to complete the project as promised? You should be able to work out the dispute if you and the contractor put all your cards on the table.
If this approach doesn’t lead to satisfactory results, try writing a positional letter. A letter tends to be taken more earnestly than an oral complaint, particularly if you note that you are “reserving all legal rights should a resolution not be worked out.” Sometimes called a “demand letter,” this can later be used as evidence that you did your best to avoid court. You gave your contractor a reasonable chance to fix the error, or refund your money, rather than burden the court system.
Arizona’s statutes of limitations control the time within which you can file your lawsuit. Typically, the most common legal causes of action against a contractor are breach of contract (“She said he would repaint my garage blue, and she repainted it pink!”) and property damage (“He broke my air conditioning system when he was supposed to be doing electrical repairs!”).
Arizona has a six-year limit under A.R.S. §12-548 for breach of contract and a two-year limit under A.R.S. §12-542(3) for property damage. Beyond those two statutes, Arizona also has a strict Statute of Repose for improvements to real property. Under this law, homeowners have eight years from the substantial completion of the home (or the last specific act or omission of the builder) to file suit. In other words, regardless of your specific cause of action, Arizona gives contractors some security after eight years. Therefore, don’t delay in filing your claims.
Arizona’s small claims courts are decentralized, meaning the precise filing fees and court rules vary from one county to another. Arizona’s court system website has a convenient map of all of the counties; use this tool to find the appropriate county clerk’s office in which to bring your lawsuit. You must sue the defendant contractor either in the county court where its offices are located, or where the event that is the basis for the lawsuit occurred – in other words, your home, where the contractor was supposed to do his work. Most plaintiffs prefer to sue in their home county, since this is more convenient and provides a certain degree of “home court advantage.”
The county clerk will charge certain fees in connection with the filing of a lawsuit. These fees vary from one county to another, but will most often be between $20 and $50. In Mohave County, for example, the small claims filing fee for a complaint is $24, plus $8 for each defendant that you sue (for example, if you want to sue both the general contractor and a subcontractor).
You’ll need to file a Complaint with the clerk. All counties in Arizona have slightly different forms, but these are generally 1-2 page forms that contain basic information about the lawsuit. You can fill it out in person or download it from your county’s website and bring the completed version to court. You’ll need to provide names, addresses, and phone numbers for both yourself and the defendant contractor (or his business entity name). You’ll then need to describe your claim. Finally, you’ll indicate the amount of money you believe you are owed. Don’t exaggerate; judges will require you to prove the full extent of those damages.
An important tip for writing your Complaint: avoid legalese. A common trap that plaintiffs fall into is to try to do extensive Internet research and make a detailed legal argument, as if you were an attorney. In small claims court, the judge knows the finer points of the law. Your role is to present the facts of your case in a clear fashion.
Once the Complaint is filed, the clerk will send a copy to the contractor along with a notice to appear in court on a specified date. That will be the date when you each orally present your case to a judge.
Your contractor will have an opportunity to file a document called an Answer. Like the Complaint, this is a short form that allows the contractor to tell his side of the story. What happens if your contractor does not file an Answer, and simply ignores the notice from the court? You can win by default if there is no Answer within 20 days. You’ll need to file a default judgment application with the clerk’s office, which gives the contractor one final opportunity to defend himself.
The biggest mistake you can make is to come to court unprepared. Arguing in front of a judge is stressful. It’s easy to forget dates, documents, and payments. Practice what you will say in your one to two minutes when speaking to the judge by rehearsing your claim in front of a friend or family member. Keep it simple, like a story. Remember, judges have large caseloads and see dozens of litigants every single day. Avoid irrelevant facts. Make the judge’s job easier.
A second important aspect of convincing a judge of the merits of your claim will be the evidence you present. In home-improvement litigation with a contractor, evidence is crucial to avoiding a he-said/she-said situation. Typically, the most important evidence will include: 1) Any written contracts between you and the contractor outlining the work he promised to perform, the timeline for performance, and the payment agreed upon; 2) Any proof of payments from you to the contractor, showing how much money you’ve already paid; 3) Any emails, letters, or other correspondence you’ve sent to the contractor outlining your dispute; 4) Photographs of your home before and after the construction work, especially photos that show shoddy or inadequate workmanship. In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.
If the judge agrees with your version of the facts of the dispute, you will receive a piece of paper called a judgment. This indicates that you are owed a certain amount of money – perhaps everything that you asked for, or perhaps a portion of it.
Typically, business owners pay judgments immediately, in part because they fear negative relationships with banks and lenders. However, your contractor might not be so forthcoming. If your contractor does not pay you within 30 days, you’ll need to return to court and fill out an application for a “garnishment” with the clerk.
Again, each county in Arizona handles this differently, but a garnishment will allow you to use the power of the court system to “attach” assets that the contractor has in the state, such as bank accounts. Maricopa County hasconvenient forms for garnishments on its website, for example, though you should speak with the clerk of your particular county about the appropriate procedure in your situation.