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

Unhappy with repair, remodeling, or renovation work done by a Kansas home contractor? Small claims court may be the place to seek a remedy.

Kansas is the state that made famous the expression that “there’s no place like home.” Indeed, if you’re a Kansas homeowner, you probably want to do all that you can to improve the aesthetics and value of your home. Sometimes, that includes hiring a contractor to do small-scale renovation projects.

There is a risk in hiring a contractor for a project worth only a few hundred or a few thousand dollars, however: if a dispute develops, retaining an attorney to fight for a refund might not be cost-effective. So if you are in a conflict for money with your home contractor, what can you do? Fortunately,  Kansas's Small Claims Court  makes it possible to fight your contractor without needing an expensive attorney.

What Is Small Claims Court?

Kansas’s small claims court allows individuals to sue other individuals or businesses for up to $4,000. These courts are designed for use without an attorney; this makes sense on disputes for smaller construction projects, such as bathroom remodeling or interior painting, where the amount in controversy will likely be a few thousand dollars.

Your lawsuit can be under different “theories of liability,” which is just a legalistic way of saying that you can sue your contractor for multiple harms. Perhaps he or she breached a written contract that you both signed. Perhaps the contractor also destroyed your carpet. Perhaps she negligently set a fire in your backyard. Your lawsuit can enumerate all of the various ways that your contractor damaged you, so long as those damages add up to no more than $4,000.

The Difficult Conversation: Attempt to Negotiate

Even the relatively simple procedures of the small claims court are still stressful and time-consuming. If you and your contractor can negotiate – determine a new construction schedule, a payment plan, and so forth – you will both be better off than having to muddle through the litigation process. Remember, time is money. Tell your contractor in no uncertain terms that you are thinking of suing unless a deal can be worked out; see whether the contractor is willing to come to the proverbial bargaining table.

If merely talking to your contractor doesn’t work, try writing a  demand letter. A demand letter tends to be taken more seriously than an oral complaint, particularly if you note that you are “reserving all legal rights should a resolution not be worked out.” This can later be used as evidence that you did your best to avoid court, which busy small claims judges will appreciate. You gave your contractor a reasonable chance to fix the error, or refund your money, rather than burden the court system.

Important Statutes of Limitations in Kansas

Statutes of limitations are generally the enemy of plaintiffs. They restrict the amount of time you have in which to file a lawsuit. Their purpose is to give legal certainty, so that defendants know when they’re “off the hook” for liability.

As a homeowner, it’s important that you remember to file your claim within Kansas’s limitations periods, or your contractor will be able to evade responsibility even if he did everything you accuse him of doing.

The most common legal causes of action against a contractor are breach of contract (“He said he would repaint my garage purple, and repainted it yellow!”) and property damage (“She broke my electric system when she was supposed to be doing gas repairs!”). Kansas has a five-year limit under  Kan. Stat. § 60-511(1)  or breach of contract and a two-year limit under  Kan. Stat. § 60-513(a)(2)  for property damage. Negotiate for a little while, but be careful not to run past these deadlines.

How Can You File Your Small Claims Lawsuit in Kansas?

After you’ve considered the statutes of limitations, tried attempts at negotiation, and considered your likelihood of success in a lawsuit, you are ready to begin the next step: filing your case.

The first step is to go to your county clerk and fill out a  Small Claims Petition. This is the central document of your small claims filing. You’ll need to provide names, addresses, and phone numbers for both yourself and the defendant contractor (or the business entity name). You’ll then need to describe your claim and state the amount of money you believe you are owed. Don’t exaggerate beyond what you can prove based on your contract or other evidence; doing this risks your credibility with the judge.

Next, you’ll need to serve the defendant contractor. Usually this is done through a process server, who will hand-deliver your lawsuit and generate a proof-of-service affidavit, which essentially proves to the court that the defendant is aware of the lawsuit. Your county clerk will likely have the names of process servers in the area.

Keep in mind that you’ll need to pay certain fees in connection with filing your small claims case. These fees vary by county. In Franklin County,  for example, it costs $47.50 to file a lawsuit asking for $500 or less; it costs $67.50 to file a lawsuit asking for between $500 and $4,000 (2015 figures).

Never Go to Court Unprepared

Judges do not decide your case purely based on your Claim document. Rather, they will listen to both you and your contractor at a trial, on a date set by the clerk when you file the lawsuit. This trial won’t be as exciting as the ones you’ve seen on television, or as formal as the ones that occur in higher courts. Most likely, you and your contractor will stand next to one another, with the judge sitting on the bench, and you will be asked to orally explain your case. Your contractor will have an opportunity to do the same, and defend against your allegations.

Kansas offers a  helpful guide  on how to prepare yourself, and what to expect, in small claims court. (Although it’s useful to remember that each judge has his or her own quirks and runs the courtroom slightly differently). Try explaining your case in one to two minutes to friends, and practice until it makes sense.

It will also be important to bring various documents to court. You’ll want to bring copies of your Claim Form and proof-of-service affidavit. You’ll also want to bring evidence. 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.

Depending on circumstances, you might also wish to bring witnesses with you to court to testify as to elements of the story.

Collecting on Your Judgment in Kansas

If the judge agrees with your version of the facts, and believes your contractor breached your agreement or damaged your property, 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.

The next step will be collecting your judgment. If your contractor has not paid you within ten days of the judgment, you may return to court and request a “garnishment.” This is used to attach a bank account or other property belonging to your contractor. Note that this will take time, and it is your responsibility as the plaintiff to hire a third-party collections company. Often, you will need to evaluate whether this is worth the time, effort, and cost.

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