After years of stagnant growth following Hurricane Katrina, building in Louisiana is making a comeback. Many people are investing into Louisiana real estate by buying or renovating homes. If you are considering a small-scale renovation to your home – perhaps upgrades to a bathroom or a drainage system on the porch – you will likely engage a contractor. And therein lies the possibility for disputes.
Imagine that you pay that contractor $2,000 up-front, and he then fails to complete the job. Or imagine that you pay him in full, he ‘finishes’ the job, and you later discover the work was defective. How can you recover your money?
Because the value of such small-scale projects is relatively low, it might not be cost-effective to hire an attorney. Fortunately, Louisiana's Small Claims Court (sometimes called City Court, depending on your parish or county) allows you to sue for between $3,000 and $5,000 (again, depending on your parish). How can you use the small claims court to recover against your contractor?
Taking a case to small claims court can be stressful, even though its procedures are simplified for ordinary people. Judges can be unpredictable, preparation is required, and the process takes time. Therefore, it’s in your interestsand your contractor’s interests to try to settle any dispute that arises without the need for litigation.
Have a conversation with your contractor. Firmly inform him that you will exercise your rights and proceed to court unless a deal can be struck. See if you can explore alternatives, maybe over a plate of traditional Louisiana crawfish. What would the contractor need in order to complete the project as originally intended? Is the job more complex than expected? Perhaps you can compromise.
Demand letters are another effective strategy to begin a conversation or drive home your point, if your contractor is ignoring your oral requests. Contractors often take these letters seriously, since they indicate that the homeowner is willing to put time and effort into documenting the relevant concerns. Such letters are also useful as exhibits in court, since they’ll show the judge that you tried to settle without litigation, making you seem like the reasonable party.
Negotiation and letter-writing don’t always do the job. Sometimes, contractors will assume that you are not serious about your claim unless you actually file a lawsuit. An initial factor to consider first, however, is the statute of limitations; these state laws limit the amount of time a plaintiff has in which to file a claim.
The most common legal causes of action against a contractor are breach of contract (“She said she would paint my house turquoise, but she painted it white!”) and property damage (“He caused a huge flood in my kitchen when he was fixing my sink!”). Louisiana has a ten-year limit under La. Civ. Code art. 3499 for breach of contract and a one-year limit under La. Civ. Code art. 3492 for property damage. Be mindful of these deadlines – especially the very short property damage deadline – when considering your lawsuit.
When ready to file your case, you’ll need to determine which parish or county to sue your contractor in. Louisiana law requires that you sue either in the county or parish where the contractor lives (or where the company’s offices are), or where your home is (since your home was the location where the contract was to be performed). If you are unsure of the appropriate county, Louisiana’s court system website offers a helpful list of all the clerks' offices and locations.
Note that Louisiana’s parishes are extremely decentralized. Each one has its own procedures, fees, and dollar limits for small claims actions. In terms of fees, you can generally expect to pay $50 to $90, depending on the number of defendants (e.g. subcontractors) whom you are suing. In Shreveport County, for example, the cost is (as of 2015) $66 for each defendant you sue. In terms of dollar limits, notice that in Baton Rouge, you can sue for up to $5,000; while in Bossier, you can only sue for $3,000.
As the next step, you’ll file a Statement of Claim with the clerk. Again, the form will vary slightly by county, but the basic information it requires is the same: 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. Finally, you’ll indicate the amount of money you believe you are owed. Don’t exaggerate the amount of damage claimed, since judges will require you to prove the full extent of those damages.
Many plaintiffs make the mistake of filling their claim packed with legalese and Internet research. Judges are more likely to be convinced by the facts of your case. It is their role to know the details of the law.
Once this paperwork is done, you will send a copy to the contractor and then file an affidavit of service with the court. The clerk will then send a notice to appear in court on a specified date to both you and the contractor. That will be the date when you each orally present your case to a judge.
Even the most experienced lawyers will tell you that rehearsing is crucial to success in court. You should come to trial knowing your claim (or claims) backwards and forwards – the date of every conversation, the amount of every invoice, and the day-to-day events that resulted in the breakdown of your relationship with your contractor.
Generally, you should practice what you will say in your one to two minutes when speaking to the judge by rehearsing it 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 or speculation about things like the contractor's motives.
Words are not enough, however. You should also bring physical evidence to the small claims court proeeding. In home-improvement litigation with a contractor, the most important evidence normally includes: 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) emails, letters, or other correspondence you’ve sent to the contractor outlining your dispute; and/or 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 want to bring witnesses with you to court to describe elements of the story to the judge.
There are a few ways to “win” in court. First of all, your contractor might simply ignore the lawsuit. In this case, assuming you can show that he was properly served with process, you can apply for a default judgment in your parish court. Second, your judge might hear both your arguments and your contractor’s arguments, and determine that he owes you everything you claim. Third, your judge might hear both sides and determine that he owes yousome of what you claim – but maybe not all of it. In any of these three circumstances, you will get a “judgment” against your contractor.
Most people and businesses will pay judgments quickly. They fear negative relationships with banks and lenders, and they try to avoid continuing legal debts. However, some are more hesitant to pay.
If your contractor fails to pay you within seven days, you’ll need to return to court and fill out more paperwork, called an Execution of Garnishment. This will allow you to “attach” (i.e. collect upon) assets held by the contractor in bank accounts, to the extent that he has any. Note that you will need to hire a private collection agency for this process. You will need to make a financial decision about whether the money is worth pursuing, if your judgment is relatively low.
Note that in Louisiana, there is no right of appeal in small claims cases. This means that if you lose, you lose. The same goes for your contractor.