You have a delightful old home in Billings, Montana, and you hire a contractor to do some work on the kitchen – retiling, repiping and regrouting. Your contract was for $3,000 total, with 50% paid up-front and the other 50% paid upon completion. The contractor took the $1,500, did a small amount of work, and then stopped showing up. Your bathroom remains unfinished.
What can you do? You may need to sue your contractor to get your money back. When you have a claim worth perhaps several thousand dollars – not enough to hire an attorney, but still enough that you don’t want to give it up – how can you recover this money? Montana’s Small Claims Court might be the answer.
Montana’s small claims court is a court of “limited jurisdiction,” that is, solely empowered to hear claims of up to $7,000. This means that you cannot sue your contractor for anything more than that unless you're willing to waive the extra.
There are no juries; all small claims cases are heard by judges who regularly hear small-value disputes, often between employees and employers or landlords and tenants. Small claims court typically hears disputes over contracts, where one party owes another money. This makes it an ideal venue for many construction-related disputes. (More complex causes of action cannot be brought in small claims court). Parties do not need lawyers in small claims court. The forms and processes are intentionally designed to be simple enough for average individuals.
When you recognize that a serious disagreement has arisen between you and your contractor, you should not immediately run to court. Nolo has some advice on the best first step when considering your options at this juncture.
Starting with a conversation with your contractor about the problem is probably the wisest idea – regarding the quality of the materials used, the shoddy workmanship, or the lack of completion. There might be a good reason that the project isn’t going according to plan. Or, if there’s not a good reason, perhaps you can convince your contractor that a lawsuit is not in his or her best interests.
If your contractor still doesn’t offer to fix the problem or at least begin to negotiate with you, write a demand letter. Such letters are often taken seriously, since they are more formal than a mere oral complaint. They put your contractor on notice that the status quo is not acceptable, and also show that you’re willing to put some effort into the resolution of the dispute.
This letter is also creating a paper trail, if you do eventually go to court, demonstrating that you gave your contractor an opportunity to negotiate and settle, and that you did not want to burden the court’s time with your dispute. This can make you look like the more reasonable party.
Negotiation sometimes fails. Letters and phone calls are sometimes ignored. If your contractor is stubborn, or thinks he or she can get away with substandard performance, you may need to file your lawsuit.
How do you do this? First, you will be required to pay a filing fee. Generally, that fee will be about $30, though it varies by county. Note that these fees will occasionally change, and you should check the Montana Court System website before writing a check. Note that you will pay additional fees if you seek to include additional defendants, or subpoena additional witnesses.
Next, to initiate your lawsuit, you will file a Complaint. The form asks for basic information, such as: (1) your name, address and phone number; (2) your contractor’s name and address; (3) a description of your claim, including dates and other relevant information; and (4) the amount of money damages you are claiming.
Space is limited, and you’re not expected to write a novel or a legal treatise. Avoid legalese or references to statutes. There is no expectation that you know the finer points of the law. That’s the judge’s job. Your job is to present the facts of your case in a clear and compelling fashion. More often than not, a small claims court plaintiff who tries to come up with a detailed legal brief with Internet research on legal precedent and statutes will confuse the judge rather than illuminate the important facts.
Once your lawsuit is filed, you will send a copy to the defendant contractor. You’ll usually do this through a process service company, and you’ll need to file an affidavit of service to prove that this was completed. Then, the court clerk will send both you and your contractor a notice to appear in court on a specific date. That will be the date when you each orally present your case to a judge. Your contractor will first have an opportunity to submit a written Answer to your claims in writing before that date.
As a plaintiff, statutes of limitations are crucial to pay attention to. The two most common causes of action against contractors are breach of contract (eight-year limit under Mont. Code Ann. § 27-2-202(1)) and property damage (a two-year limit under Mont. Code Ann. § 22-2-207(2)). Before filing, make sure that the contractor’s error or breach occurred within that period. If it does not, your suit may be time-barred, or you may lose out on certain possible damages.
Even for experienced litigators, court can be terrifying. While you can’t prevent nerves, you can make sure you’re as prepared as possible. Try rehearsing your case to your friends or family members in just one to two minutes, while including all the relevant facts and details. Weed out any extraneous information that might confuse the judge. Appearance matters, even if it shouldn’t. Avoid wearing T-shirts or dirty jeans. Business casual is appropriate.
Also, come to court with copies of any relevant evidence that you have. In the context of home improvement contractor litigation, the most common pieces of evidence include: 1) any written contracts between you and the contractor outlining the work he promised to perform, the timeline for his performance, and the payment agreed upon; 2) any proof of payments from you to the contractor, showing how much money you’ve already given him; 3) any 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.
Winning a case is a wonderful feeling, but even “victory” will get you nothing more than a piece of paper, called a judgment. Most contractors will see that they’ve lost in court and will pay you what the judge ordered. If they pay, you can file a Satisfaction of Judgment to end the case on the court’s docket.
But some will not pay as ordered – either because they do not have the cash, or because they think they can get away with it. If the contractor fails to pay the debt, you will need to return to court and fill out a Writ of Execution form. If the court accepts the form, it will allow you to hire a third-party judgment collections company to collect on the judgment, typically by attaching property or assets held by your contractor.