You’ve just moved into a home in Wheeling, West Virginia, and you decide to upgrade the kitchen. You find a contractor who agrees to retile, install new appliances, and fix the water pressure. You sign a written contract for $3,500, including all of that work and supplies.
But when the contractor finishes, you notice that the water pressure is still weak, the appliances are lower quality than those you agreed upon, and the tiles are the wrong color. He refuses to fix the work or refund your money. Because the cost of this project was relatively small, hiring a lawyer could cost as much or more than you could recover from the contractor. What can you do? West Virginia’s Magistrate Court (more commonly known as small claims court) makes it possible for you to recover monies without the need for a pricey attorney.
West Virginia’s small claims court allows you to sue individuals or businesses for up to $5,000. This lets you sue your contractor for any flaws or failures in performance. Note that you can sue regardless of whether you hired the contractor in a personal capacity, or whether the contractor owns a formal company, like an LLC.
You can sue your contractor for multiple causes of action, the most common of which are breach of contract and property damage. Perhaps the contractor breached your written contract by giving you lower-quality appliances than he agreed initially. Or perhaps he burnt your electrical sockets by installing the wrong equipment, causing damage. Your lawsuit can articulate all of the various ways that your contractor damaged you, so long as those damages add up to no more than $5,000 (or you'll willing to forego the remainder).
Many litigants do not want to negotiate or settle because they perceive this as being “weak.” In fact, negotiation is usually the smarter and stronger alternative to litigating. Even the relatively simple procedures of the West Virginia small claims court are stressful and time-consuming. You also never know for sure which way a judge might lean on a case. You are better off trying to negotiate a deal with your contractor yourself.
First, try to strike a deal by talking before you file the lawsuit. Call the contractor, explain the situation, and state that you will sue unless a deal can be reached.
Talking doesn’t always get a contractor's attention, however. You might also send a demand letter. A demand letter tends to be taken more seriously, and can later be used as evidence that you did your best to avoid court, which busy small claims judges will appreciate. You gave your contractor a reasonable chance to fix the error, or refund your money, rather than burden the court system.
If neither talking nor sending a demand letter results in an acceptable response, you may file your lawsuit and then continue to negotiate. Being served with a lawsuit can be intimidating, even for an established contractor or business, since the outcome can be unpredictable. Serving your contractor with a lawsuit might be enough to bring him or her to the negotiating table.
Once you have a conflict with your contractor, don’t delay too long before filing your case. Statutes of limitations restrict the amount of time that a plaintiff has to sue. The idea is to give defendants certainty that they aren’t liable forever. Too many homeowners make the mistake of waiting until they need the money, or until years of negotiations have passed, before filing suit and preserving the claims before they expire.
The most common legal causes of action against a contractor are breach of contract (“They said they’d install a top-quality refrigerator, and instead they installed a cheap one!”) and property damage (“The contractor broke my water system when he was supposed to be fixing a small pipe!”). West Virginia has a ten-year limit under W. Va. Code § 55-2-6 for breach of contract and a two-year limit under W. Va. Code § 55-2-12(a) for property damage. Do not make the mistake of waiting to file until it’s too late.
Each of the 55 counties in West Virginia has at least two magistrates – people appointed or elected to resolve small claims matters. Under state law, you can sue your contractor in either the county where you live or the county where his office or place of business is located. West Virginia’s Judiciary provides a convenient county map, along with contact information for the relevant Magistrate Court.
You will begin your filing by going to the relevant county Magistrate office. You will speak with a clerk, and will be asked to review the Civil Case Information Sheet and fill out a Civil Complaint, which will initiate your case. This document includes the 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 and state the amount of money you believe you are owed. Do not exaggerate, since the judge will make you prove the extent of your damages. These documents will need to be formally served on your contractor. Usually this is done through a process server, who will hand deliver your lawsuit. Proof of this formal service is a requirement.
Depending on your county, there will be fees associated with all of this paperwork. In Kanawha County, for example, you can expect to pay between $50 and $70 depending on the amount of money you’re seeking from your contractor. You may also incur other fees if you decide to subpoena witnesses, like subcontractors or designers.
Because small claims court can be a bit more informal than “regular” court, you are likely to be standing right beside your contractor speaking to the magistrate about your version of the events. Effective communication is key.
Smart plaintiffs will practice their narrative with a few friends before the trial date, reviewing all key facts and dates. You will also want to anticipate the counterarguments your contractor is likely to make. For example, you might accuse your contractor of failing to provide first-rate kitchen tiles, as promised. He might argue that you never mutually defined “first-rate” and the tiles he gave were adequate. Consider your response in advance to avoid being surprised at trial.
In addition to your oral presentation, both you and your contractor are permitted to bring physical evidence to court. Generally, in home-improvement litigation with a contractor, the most important evidence will include: 1) written contracts between you and the contractor outlining the work he promised to perform, the timeline for performance, and the payment agreed upon; 2) proof of payments from you to the contractor, showing how much money you’ve already shelled out; 3) emails, letters, or other correspondence you’ve sent to the contractor outlining your dispute; 4) photos 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 you win your case in the Magistrate Court, you still need to worry about collection. That is, you still need to be sure that the defendant contractor actually writes you a check for the amount that the judge says he owes you.
Most reputable contractors and businesses will pay their judgments immediately. They want to maintain credibility with banks and lenders, particularly if they operate within a small community. Deadbeats will not be able to have lines of business credit or get loans for new equipment purchases, for example.
However, some contractors will not be so forthcoming with your winnings. If 20 days have elapsed since your judgment, and you still have not been paid, you can return to the Magistrate office with a copy of the judge’s order and ask for a Writ of Execution. This document will be filled out, filed, and served once again on your contractor to give him one final chance to pay the judgment against him. If he fails to do so, you’ll be able to “execute” on his assets, typically by hiring an outside collections company to seize property or other financial holdings in the amount of your judgment. The prospect of these collection efforts is usually enough to make a defendant pay voluntarily.