Imagine that you hired a contractor to perform a limited set of renovations on your Austin, Texas home – perhaps new countertops and range in the kitchen, new windows, or resurfacing the driveway and walkways. Now imagine that the contractor failed to perform his duties in the way you expected. He used low-quality materials, misaligned the windows, or left an uneven surface on the driveway. Or perhaps he took off before the project was complete. If you had only spent a few hundred dollars, perhaps you would “write off” the loss as a lesson learned. But the scale of these types of projects, while not be huge in the grand scheme of residential construction, still likely cost you a few thousand dollars. For most people, that loss is too large to take lying down.
Small claims courts are generally a good mechanism for dealing with these types of disputes. For the most part, such courts allow litigants like you to pursue legal claims against businesses or individuals without needing to hire an attorney. Litigation in small claims court is also typically faster than litigation in the state’s regular court of general jurisdiction. How should you pursue such claims against your contractor in Small Claims Court in the Lone Star State?
In a dispute with a contractor, running to court is rarely the best first step. More likely, you should begin by speaking personally with your contractor about the issue at hand. After reminding your contractor what he promised (ideally with reference to the written contract, assuming you have one), provide an opportunity for the contractor to explain the underlying issue. Is the job more expensive or complicated than was anticipated? Does the need more time, and if so, exactly how much? Is there an issue that the two of you can work out?
If this softer strategy gets you nowhere, put your concerns in writing. A letter to the contractor explaining what he promised (again, with reference to any written contract) and what actually transpired is likely to carry more weight than an oral complaint. Be sure to include a sentence at the end of your letter stating that you reserve all your legal rights and remedies.
Sending such a letter has a dual purpose: If you eventually litigate, it will serve as evidence, showing that you did your best to avoid going to court. Sometimes called a “good faith letter,” it demonstrates to a busy small claims court judge that you made reasonable efforts to resolve the dispute amicably before burdening the justice system. In other words, it can make you appear as the “good guy.” You wouldn’t want the contractor to gain the judge's sympathy by protesting that your lawsuit was the first he'd ever heard that there was a problem.
While many – maybe most – disputes with contractors can be solved through negotiation, not all can. Sometimes you’ll have no viable choice other than filing suit. People can represent themselves in Texas small claims courts without bringing a lawyer along. Also, no jury will be present in the courtroom. Instead, your case will be heard by a “magistrate” – most likely a lawyer from the community, appointed to resolve lawsuits for money damages not exceeding $10,000. There are a few important things to keep in mind when you preparing your lawsuit.
One of the most significant limitations on Small Claims Court is that your claims cannot exceed $10,000. This is one of the highest monetary limits of any state. However, the primary relief requested must be monetary – that is, you must be seeking money, rather than some other form of relief, like a court order that your contractor must do further work on your home. If you seek to recover more than $10,000 from your contractor you must consider another court, and in most cases, the assistance of an attorney.
Texas also has statutes of limitations on when you can file suit. The two most common causes of action against contractors are breach of contract (four-year limit under Tex. Civ. Prac. & Rem. Code § 16.004(a)(3)) and property damage (two-year limit under Tex. Civ. Prac. & Rem. Code § 16.003(a)). Before filing, make sure that the contractor’s error or breach occurred within that period.
To formally begin your case, you can file a Complaint in the clerk’s office for the appropriate Texas county. Note that each county uses a slightly different form for its Complaint; Denton County's form is a good example, showing the information you would be required to provide. The appropriate county could be where the defendant contractor is based, or (more commonly) where your home is located, since that’s where the harm occurred.
Your Complaint should include a sworn statement setting out the facts of your case. It's a good idea to frame it as a story, beginning from the moment you and your contractor first agreed to the scope of work and reviewing all that occurred after that. Don't try to sound like a lawyer! You don't need to add legal jargon, or even citations to statutes and legal treatises. In Small Claims Court, it's the judge’s job to know the details of the law; your job is to present the facts of your case in a clear and convincing manner.
After you've filed the Complaint, the clerk will send a copy to the defendant contractor, along with a summons to appear in court on a specified date. That will be the date when each of you orally present your case to a judge.
Filing a lawsuit in Small Claims Court is not free. Texas’s counties are decentralized, in terms of how they charge filing fees. Contact your county’s clerk to ask about the appropriate filing fee. In Denton, for example, the fee is $55 plus an additional $20 per defendant.
When you appear in court for your trial date, it is crucial to be prepared. Court can be a stressful environment, and it’s normal to be nervous when speaking to a judge – especially in this situation, with the contractor right next to you. Practice is key. To rehearse, it's good to ask a friend or family member to listen to your presentation, trying to get it down to roughly one or two minutes. Have the person ask questions and tell you what parts seemed less convincing or clear.
Keep your exposition simple and direct. Small claims court judges have large caseloads and see dozens of litigants every single day. Avoiding irrelevant facts will make the judge’s job easier and could lead to a better result.
A second important aspect of convincing a judge to rule in favor of your claim will be the evidence you present. The last thing you want is a he-said/she-said situation, where you and your contractor simply disagree on whether or not he properly performed his duties.
The best evidence will likely 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 you've already made to the contractor; 3) Any correspondence (emails or letters) between you and the contractor describing or related to the dispute; 4) Photographs of your home before and after the construction work, especially photos that show shoddy workmanship. In some situations, you might also bring witnesses with you to court to describe elements of the story to the judge.
One frustrating aspect of small claims court is that even if you “win” your case, all you really get is a piece of paper (called a judgment). Honorable contractors will see that they’ve lost in court and will pay you the amount that the judge ordered without you having to take extra steps; especially if the contractor is local, and knows that its reputation is important for gaining future customers and maintaining good relationships with local banks and lenders. But not all contractors are so upright in their behavior. In the end, you'll have to be the one to enforce the court's judgment if the contractor doesn’t willingly pay. Enforcing a judgment can be time-consuming and costly.
The Texas Bar Association provides helpful resources on collecting judgments. If the contractor fails to pay you, you will need to return to court to file additional paperwork. The judge might set a schedule for payment that will be reasonable for the contractor (for example, if cash flow is an issue). Alternatively, the judge might order that the contractor’s bank accounts be garnished.