If you’re a South Dakota homeowner in a dispute with your contractor over a home repair, remodel, or renovation,South Dakota’s Small Claims Court may provide a convenient way to recover your money. Most importantly, in Small Claims Court, you can represent yourself without the need for an expensive attorney. This is particularly useful if your dispute arose from a small-scale project, such as painting or tiling. These types of projects might cost only a few thousand dollars. It would make little sense to pay a lawyer an exorbitant retainer, big hourly fee, or even significant contingency, since all of that would quickly eat into your recovery.
How should you pursue such claims against your contractor in Small Claims Court in the Coyote State?
Stop! Before running to court, try to negotiate the dispute with your contractor. Most contractors are business people, and while they’re accustomed to consumer complaints, they will likely prefer negotiating a settlement as compared to wasting time in court.
Remind your contractor what was promised (perhaps with reference to the written contract, if you have one), and provide an opportunity to explain what the problem is. Is the job more expensive or complicated than anticipated? Does the contractor need more time? Is there an issue that can be worked out? Make clear that unless an arrangement can be worked out – further work or a refund – you will sue. Let the contractor make the next move.
It is also wise to record your position with a demand letter, particularly if your contractor is unwilling to talk with you. Sending a letter is strategic if you eventually litigate, because it can serve as evidence to a judge that you did your best to avoid litigation. This demonstrates to a busy small claims court judge that you made reasonable efforts to resolve the dispute amicably before burdening the justice system. Judges generally do not like “litigation-happy” plaintiffs; you will be well-served if you come off as the reasonable party, compared to your stubborn contractor.
No lawyer is optimistic enough to think that all disputes can be resolved through conversation or letter-writing. Some contractors simply won’t come to the table – at least not until a lawsuit is filed. South Dakota’s Judicial System provides a convenient Small Claims Court website, describing the basic role of the court. Small Claims Court will hear monetary disputes for $12,000 or less.
One of the most significant limitations on Small Claims Court is that your claims cannot exceed $12,000. 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 $12,000 from your contractor you must consider another court, and in most cases, the assistance of an attorney.
South Dakota also has statutes of limitations on when you can file suit. The two most common causes of action against contractors are breach of contract (six-year limit under S.D. Codified Laws § § 15-2-13(1)) and property damage (also a six-year limit under S.D. Codified Laws § 15-2-13(4)). Before filing, make sure that the contractor’s error or breach occurred within that period.
To formally begin your case in South Dakota Small Claims Court, you will file a Statement of Claim in the clerk’s office for the appropriate county. 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. All counties use the same claim form.
Your claim includes a sworn statement regarding the facts of your case. You can frame it as a narrative, from the moment you and your contractor first agreed to the scope of work. Try to avoid legalese or citations to statutes and legal treatises. There is no expectation that you know the fine points of the law. Rather, in Small Claims Court, it is the judge’s job to know the law; 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 attempts to write a detailed legal brief with Internet research on legal precedent and statutes will confuse the judge rather than illuminate the important facts.
Once the claim is filed, you must have a copy served by a process server on your contractor. Your process server will then provide you with an affidavit of service, which proves that the defendant was indeed served. This document is required to proceed with the lawsuit. Your contractor will then have an opportunity to file a document called an Answer, where he is permitted to give his own side of the story. From there, the clerk will send you and the defendant a date to appear in court. That will be the date when you each orally present your case to a judge.
Filing a lawsuit in Small Claims Court is not free. The cost will depend on your county, the size of your claim, and the number of defendants you are suing (i.e. architects, subcontractors, and so forth). To simplify your calculations, the court system offers a Fee Calculator. Generally, though, you should expect to reserve a couple hundred dollars for assorted court fees that you may incur throughout the litigation.
When you appear in court for your trial date, it is crucial to be prepared. Court is a stressful environment, and it’s natural to be nervous when speaking to a judge – especially with the contractor standing next to you. Practice is key. A good way to rehearse is to explain your claim to a friend or family member, trying to get your statement down to roughly one or two minutes. Keep it simple and direct. Remember, judges have large caseloads and see dozens of litigants every single day. Avoid irrelevant facts. Make the judge’s job easier.
A second important aspect of convincing a judge of the merits of your claim will be the evidence you present. In the context of home improvement contractor litigation, evidence is crucial to avoiding a he-said/she-said situation, where you and your contractor simply disagree on whether or not he properly performed his duties.
Typically, 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 transferred to him; 3) emails or letters you’ve sent to the contractor outlining your dispute; and 4) photographs of your home before and after the construction work, especially photos that show shoddy workmanship.
In some circumstances, you might also bring witnesses with you to court to describe elements of the story to the judge.
If your contractor loses, and pays you the amount of the judgment, you simply need to file a Satisfaction of Judgment form with the court. This officially concludes your case.
However, the contractor might not willingly pay you, even after losing in court. Collecting money is not always easy. One of the more frustrating aspects of Small Claims Court is that even if you “win” your case, you essentially only receive a piece of paper (called a judgment). It is your responsibility to enforce that judgment if the contractor doesn’t willingly pay.
Enforcing a judgment can be time-consuming and costly, partly because you will need to hire a third-party collections company. South Dakota’s court clerks will at least help you with the mechanics of the process. You’ll want to ask your county court’s clerk about the garnishment process. This process will allow you to attach wages or other assets held by your contractor.