Nevada is a state where people love to play games of chance. Unfortunately, dealing with contractors on small-scale home projects sometimes resembles gambling. Your home contractor may be highly recommended, professional, and efficient. But his work might also be faulty, negligent, or behind schedule.
Because small-scale projects – such as garage painting, kitchen renovations, or bathroom retiling – will cost only a few hundred or a few thousand dollars, the cost of hiring an attorney to sue a lousy contractor often outweighs the potential proceeds. Fortunately, Nevada’s Small Claims Court (also known as Justice Court) allows you to sue a person or business for up to $7,500 without the need for a lawyer. If you have this size dispute with a contractor, what should you do?
It might seem odd to begin an article about suing in Small Claims Court with a discussion of settlement. However, even the best lawyers will tell you that settlement discussions happen before and during the course of litigation. Going to court can be stressful and time-consuming. Your contractor is busy trying to run a small business, and you likely have a job and other commitments as well.
Considering that your victory in Small Claims would, most likely, be only a few thousand dollars, it might be worthwhile to try settling the case for something less than the full amount you are owed. Moreover, in a settlement negotiation, you can bargain for additional work by the contractor; a Justice Court can award you only money damages.
Try having a conversation with your contractor when it becomes clear that you have a dispute. Firmly inform him that you will exercise your rights and proceed to court unless a deal is struck. See if you can explore alternatives. What would the contractor need in order to complete the project as originally intended? Is the job more complex than expected? Are there materials that are proving too difficult to acquire? Getting more information might help you reacg a compromise.
Demand letters are another effective strategy with which to begin a conversation; indeed, Nevada requires that you make a demand for payment in writing before you sue. The purpose of this rule, of course, is to prevent plaintiffs from filing lawsuits and clogging the system with claims that could be settled between the parties. Moreover, contractors often take these letters more seriously than oral complaints, since they indicate that the homeowner is willing to put time and effort into documenting the concerns.
If negotiation and letter writing fail, you face the critical juncture of whether or not to sue. In reaching that decision, consider the likelihood of success. Does your contractor have defenses to raise, such as your own breach of an agreement or failure to pay?
A second factor to consider is the statute of limitations. These statutes limit the amount of time a plaintiff has in which to file a claim. Before filing, you should be certain that the work in question does not fall outside of the limitations period. The two most common legal causes of action against a contractor are breach of contract (“She said she would paint my house green, but she painted it orange!”) and property damage (“He caused a huge flood in my basement while fixing my pipes!”).
Nevada has a six-year limit under Nev. Rev. Stat. § 11.190(1)(b) for breach of contract and a three-year limit under Nev. Rev. Stat. § 11.190(3)(c) for property damage. Be mindful of these deadlines when considering your lawsuit. Even a sympathetic judge will be forced to dismiss your claims, since judges are not given much discretion when applying these laws.
When ready to file your lawsuit, you’ll need to determine which county you want to sue your contractor in. Nevada law requires that you sue either in the county where the contractor lives (or where the company’s offices are), or where your home is (since your home is where the contract was to be performed). If you are unsure of the appropriate county, Nevada’s government website offers a handy Interactive Jurisdiction Locator where you can search by name, zip code, or address.
Suing in the Justice Court is not free. Each of Nevada’s counties has slightly different filing fees. In Washoe County, for example, the initial filing fees are (as of 2015): $66 if your claim is for under $1,000; $86 if your claim is between $1,001 and $2,500; $106 if your claim is between $2,501 and 5,000; and $146 if your claim is between $5,001 and $7,500. Beyond the initial filing fee, there may be additional fees for docketing judgments, serving additional defendants (i.e. subcontractors or designers), or enforcing your judgment.
The most important document that you’ll file is the Small Claims Complaint. You can fill out that form in person, or download it and bring the completed version to court. (Helpful hint: A typed version will look more professional and will also make it easier for the judge to read).
You’ll need to provide correct names, addresses, and phone numbers for both yourself and the defendant contractor (or business entity name). You’ll then need to describe your claim. Finally, you’ll indicate the amount of money you believe you are owed. Resist the temptation to exaggerate this amount; you’ll need to prove where your damage calculation comes from, and losing credibility with the court is not a smart move.
Many self-represented plaintiffs make the mistake of filling their complaints with legalese obtained through Internet research – searching for statutes and law review articles to explain the claim. This is unnecessary, and indeed, counterproductive. In the Justice Court, judges do not want or need to see “law”; they want and need to see “facts.”
Once this paperwork is done, you will send a copy to the contractor and then file an affidavit of service with the court. Usually this is done through a process-service company. The clerk will 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, and is typically within 90 days of the date of your filing the Complaint.
Even the most advanced lawyers will tell you that rehearsing is crucial to success in court, whether you are arguing in Nevada’s Justice Court or Nevada’s Supreme Court. You should come to trial knowing your case backwards and forwards – the date of every email, the amount of every invoice, and the day-to-day events that resulted in the breakdown of your relationship with your contractor.
A nonprofit organization known as the Civil Law Help Center offers a convenient guide for filing your claim and preparing for your court appearance. Generally, you should practice what you will say in your one to two minutes when speaking to the judge by rehearsing in front of a friend or family member. Keep it simple, like a story. Judges have large caseloads and see dozens of litigants every single day. Avoid irrelevant facts or speculation about things like the contractor's motives.
You should also dress professionally, avoiding ripped jeans and T-shirts. Court is a fairly formal environment. Business casual attire is certainly appropriate.
Also bring physical evidence to trial. 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) any emails, letters, or other correspondence you’ve sent to the contractor outlining the dispute; and 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 witnesses will not appear voluntarily, you might need to subpoena them.
Assume that you win your case. The judge believes every word that you say, and orders that your contractor pay the full amount asked for. Even in this situation, you will receive only a piece of paper, called a “judgment.” Usually, business owners pay judgments immediately, in part because they fear negative relationships with banks and lenders, and bad press in the community. This is particularly the case if the contractor is larger and more established.
However, your contractor might not be so forthcoming with your damage award. If the contractor fails to pay you, 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 any exist. 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 under Nevada law, some property is exempt from collection. The contractor debtor will have the opportunity to content your collection efforts, which can make the process long and difficult.