Suing Home Contractor for Construction Defects in Small Claims Court in Delaware

The Delaware Justice courts allow you to bring actions worth less than $15,000, which tends to fit the value of numerous small-scale home repair projects.

Delaware is a small state, but known for its excellent court system. Its Chancery Court is known around the world as a home for high-stakes corporate litigation. Fortunately, you don’t need to be a Fortune 500 company to make use of Delaware's courts. If you are a homeowner who needs to recover monies from a bad contractor – for example, if that contractor damaged your property or breached your contract – you can sue in the  Justice of the Peace Court, also known as small claims. The Justice courts allow you to bring actions worth less than $15,000; this tends to fit the value of many small-scale home repair projects, such as bathroom remodeling, roof repair, or repainting.

In small matters like these, the value that you could recover from your contractor is likely less than the cost of hiring a lawyer to litigate your case in the Court of Common Pleas or Superior Court. In small claims, you do not need a lawyer; you can sue on your own. How should you pursue such claims against your contractor in Delaware Justice courts?

Don’t Be Afraid to Negotiate

When you have a dispute with your contractor, even experienced lawyers will agree that running to court isn’t always  the best first step. More often than not, you should begin by having a conversation with your contractor about the problem – the color of the paint, the quality of the materials, or the shoddy work. After reminding your contractor what was promised (with reference to the written contract, if you have one), give an opportunity to explain what the problem is. Is the job more expensive or complicated than anticipated? Does the contractor need more time? Is there an issue that can be worked out?

If this softer strategy gets you nowhere, put your concerns in writing with a  demand letter. Your letter to the contractor should explain what the contractor promised (again, with reference to any written contract). Such a letter typically carries more weight than a mere oral complaint; especially if you include a sentence at the end stating that you reserve all your legal rights and remedies.

Moreover, sending a letter is a good strategic move if you may eventually litigate. It can serve as evidence to a judge that you did your best to avoid court. Sometimes called a “good faith letter,” it demonstrates to a busy small claims court judge that you made reasonable efforts to resolve the dispute amicably before burdening the justice system. In other words, it can make you look like the “good guy.” By contrast, you wouldn’t want the contractor to be able to tell the judge that your lawsuit was the first he'd ever heard that there was a problem with the work; judges generally prefer litigation to be a last resort.

Suing in Delaware Justice of the Peace Courts

While many disputes with contractors can be solved through negotiation, sometimes you will need to file a lawsuit. There are a few important things to keep in mind when you wish to begin your lawsuit.

Limitations on Time and Money

One of the most significant limitations on Justice of the Peace Court is that your claims cannot exceed $15,000. Under  10 Del. C. 1953, § 2801, the court cannot award you damages more than that, even if you can prove them. (You would need to file your lawsuit in a higher court, called the  Court of Common Pleas).

Delaware also has statutes of limitations on when you can file suit. The two most common causes of action against contractors are breach of contract (three-year limit under  Tit. 10 § 8106) and property damage (two-year limit under  Tit. 10 §8107). Before filing, make sure that the contractor’s error or breach occurred within that period. Note that these limitation periods are slightly shorter than most states, so homeowners should act quickly to preserve their rights.

Filing Fees

Filing a lawsuit in the Justice Court  is not free. The cost (as of 2015) is $40 for the Complaint, with additional fees for service of process, sending subpoenas (if you need them), and recording your eventual judgment. Aim to budget about $100 for court fees, just in case.

Filing in the Delaware Justice Court

First, you’ll need to select the county for your lawsuit. Under Delaware law, that can be either the county where you live or the county where your contractor is based (i.e. where its offices or headquarters are). Delaware’s Judiciary provides a  convenient list of locations  for its Justice of the Peace courts.

Regardless of the county, you’ll need to fill out the same  Complaint  form. This can be filled out online, but must be physically brought to the clerk. The Complaint is a sworn statement regarding the facts of your case. You can frame it as a story, from the moment you and your contractor first agreed to the scope of work.

Generally, you should avoid legalese or citations to statutes and legal treatises in your Complaint. There is no expectation that you know the law in detail. It is the judge’s job to know the law; your job is to present the facts of your case in a clear manner. More often than not, a small claims court plaintiff who attempts to write a detailed legal brief with Internet research on legal precedent and statutes will confuse the court.

Once the Complaint is filed, the clerk will send a copy to the defendant 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.

Speaking in Court

Once your paperwork is filed, you will receive a court date. This is the date when both you and your contractor will come into court and appear before the judge. Preparation is critical to your success. Court is a stressful environment, and it’s natural to be nervous when speaking to a judge – especially with the contractor standing next to you.

A good way to rehearse is to explain your claim to a friend or family member, trying to get your statement down to roughly one or two minutes. Keep it simple and direct. Judges have large caseloads and see dozens of litigants every single day, so avoiding irrelevant facts will make the judge’s job easier.

Also bring key documents with you, including a copy of the Complaint that you filed.

Additionally, you can bring actual evidence, which typically might include: 1) Written contracts between you and the contractor outlining the work he promised to perform, the timeline for performance, and the payment agreed upon; 2) Proof of payments already made by you to the contractor; 3) Emails or letters 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 workmanship.

In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.

Enforcing a Judgment

A frustrating aspect of the Justice Court is that even if you “win” your lawsuit against your contractor, you essentially receive a piece of paper (called a judgment). Honorable contractors will see that they’ve lost in court and will pay you what the judge ordered; especially if the contractor is local, and knows that it needs to operate in your community and have relationships with local banks.

But not all contractors are so forthcoming. It remains your responsibility to enforce that judgment if the contractor doesn’t willingly pay. Enforcing a judgment can be time-consuming and costly.

If 30 days elapse after the judgment and the contractor has still not paid you, you’ll need to return to the Delaware Justice Court and speak with the clerk. There, you will fill out a  Garnishment Application, which will give the contractor one more chance to pay. After that, you would be able to hire a collection company to pursue the contractor’s assets (such as equipment or bank accounts) to fulfill the obligations under the judgment.

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