Your suburban home outside of Bismarck, North Dakota needs some upgrades. Perhaps a new coat of paint on the garage. Perhaps a new electrical system. Perhaps a new water pump. You hire a home contractor to do a small-scale repair job and pay him a sizable down payment. But he performs defective work, or leaves the project before it’s finished. The amount you paid out is probably less than the cost of an attorney. How can you recover your money? North Dakota’s Small Claims Court might be your answer.
Small claims court lets you sue persons or businesses for amounts up to $15,000. This is one of the largest limits for any small claims court in the United States. In North Dakota, you do not have the right to trial by jury; a judge decides all cases. You also do not have the right to appeal.
Before running to small claims court, you should attempt to negotiate with your contractor. Do this orally, as well as in writing. Remember, litigation can be time-consuming, stressful, and unpredictable. Both you and your contractor are, in some sense, rolling the dice in a courtroom, subject to the feelings of the judge. Moreover, you both could spend your time more efficiently. All of this creates a mutual incentive to settle the dispute without needing to involve a court. Explain this to your contractor, letting him know that you’ll file suit if he cannot make a reasonable offer.
If this approach doesn’t lead to satisfactory results, try writing a demand letter. Such a letter tends to be regarded more seriously than an oral complaint, especially if you emphasize that you are “reserving all legal rights should a resolution not be worked out.”
Judges also like to see that you’ve made a written demand; it shows that you were willing to negotiate without bothering the court system. Therefore, there’s no harm in trying to negotiate and sending a letter, even if it doesn’t ultimately lead to a settlement.
Finally, you should consider mediation. In mediation, a trained third-party neutral will sit down with both you and your contractor and try to facilitate a settlement. North Dakota’s court system offers extensive resources for this sort of alternative dispute resolution. If it fails, and no agreement is reached, you can continue to litigation.
Like all states, North Dakota limits the amount of time that plaintiffs such as you have to file suit. The idea is to give defendants legal certainty after a certain number of years. For homeowners, though, these statutes mean that you need to pay close attention to the calendar, or you might find your case precluded.
Typically, the most common legal causes of action against a contractor are breach of contract (“She said he would repaint my garage black, and she repainted it red!”) and property damage (“He broke my ceiling when he was supposed to be doing roof repairs!”). North Dakota has a six-year limit under N.D. Cent. Code § 28-01-16(1) for breach of contract as well as a six-year limit under N.D. Cent. Code § 28-01-16(4) for property damage. Do not delay in filing your claims!
First, you must sue your contractor either in the county where its offices are located, or in the county where you live (given that your home was the subject of the contract). If you are unsure of the appropriate county, the North Dakota Court System provides a comprehensive map including the contact information for each court within each county.
Note that the county clerk will charge certain fees in connection with your lawsuit. It will cost $80 to file the suit (as of 2015), and there might be additional fees if you seek to subpoena witnesses or sue multiple defendants. It is typically a good idea to reserve a few hundred dollars for these fees as an investment in your case.
Next, you’ll need to file the Claim Affidavit with the county clerk. This form contains basic information about the lawsuit, such as your contact information and the contact information of the person you are suing. You’ll then need to describe your claim. Finally, you’ll indicate the amount of money you believe you are owed. Don’t exaggerate; judges will require you to prove the full extent of those damages. You can fill this out in person or download it from your county’s website and bring the completed version to court.
From here, your contractor will have a chance to file an Answer. Typically, defendants will deny the allegations against them, or at least assert a variety of defenses.
You may continue to negotiate even after you file suit. If you and the defendant reach an agreement before the date of your appearance, simply file this Satisfaction form with the clerk, so that they know that the case is dismissed from the court docket.
Even experienced lawyers spend days, sometimes weeks, preparing for a court appearance. It’s normal to get nervous! The best way to counteract this is practice. Practice what you will say in your one to two minutes when speaking to the judge by rehearsing your claim 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. Avoiding irrelevant facts will make the judge’s life easier.
A second important aspect of convincing a judge of the merits of your claim will be the evidence you present. 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:
In some situations, you might also want to bring witnesses with you to court to describe elements of the story to the judge.
If the judge agrees with your version of the facts of the dispute, and that the law warrants action in your favor, 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. Your contractor is required to pay the judgment amount within ten days.
Typically, business owners pay judgments relatively quickly, in part because they fear negative relationships with banks and lenders and bad reviews from customers.
If your contractor does not pay up, you should immediately return to court and speak to the clerk about a garnishment. While each county handles this differently, you will be able to use the court system to attach assets held by your contractor in the amount of the judgment. This might involve hiring a third-party collections company.