Sorry for the length of this post but this is totally unfamiliar territory to me.

Story:

A neighbor and I hired a contractor to replace a shared retaining wall. I am on the low side of the wall and therefore most work was performed on my side. Work started about 1 week after some heavy rains and the skid steer that was being used rutted my yard and broke some sprinkler heads. Approximately two weeks into the job the contractor called me out and said he was concerned his tractor would get stuck and we agreed to stop using it. The sprinkler had not been turned off and of course filled the ruts where the lines were severed. He asked for more money for smaller equipment and I said let's tackle other portions of the project and come up with a game plan. Fast forward to that evening and he has "gained permission" from the neighbor to run his skid steer all afternoon to move gravel to the back of my lot. This caused the ruts to go from ~12" deep to almost double in some spots and put enough pressure on a retaining wall shared with another neighbor to damage that wall enough to warrant full replacement of some parts and repair of others. I haven't paid this contractor anything yet and I wanted to negotiate damage costs out of the invoiced amount. He's unwilling to do so and instead is threatening a mechanics lien against me. He did offer to come back and repair the retaining wall if I paid him 95% of the amount owed. I have received a bid for repairs to the ruts, sprinkler and retaining wall and the total bid exceeds the amount I owe to him. My question is what recourse do I have? Will his lien be valid considering the excessive damage done to my property?

TLDR: Contractor hired to replace retaining wall used heavy machinery and damaged a different, perfectly functional retaining wall, sprinklers and yard. Won't negotiate amount owed and threatening lien for non-payment.

Do you have a signed contract, and were provisions discussed upfront for repairing damages to the yard by his equipment?

There is not a signed contract. There is a one liner in his bid that says "damage to landscape (ie grass)" is not covered.

I hate to say it, but I don't think you have much leverage here. I'd suggest trying to keep a cool head and friendly demeanor, offer to pay him for the completed work, and try to negotiate as much of the repairs as you can. It sucks when contractors refuse to do the right thing, but Texas lien laws highly favor them.

I tried my best to keep it amicable but he lost his mind when I told him I was getting bids and wanted to negotiate repair costs out of the amount owed. The other retaining wall is shared with a different neighbor so I informed him I couldn't let him repair the wall until I had their approval. He wasn't having that either.

Yes, That is correct. Originally the contractor was given permission to drive back and pick up a load of rubble one time. In doing so we noticed the soil was very wet and I told him I wasn't happy about it. Later on in the week while I was at work he made an executive decision to move concrete with the bucket on his skid steer because they couldn't move quickly enough with just two wheel barrows to avoid truck fees. This caused the initial breakage in the irrigation system and created the ruts that were up to 12" deep. The following week he returned to finish the job and on that Friday after driving his tractor back there he asked me to come home at lunch to discuss some things. At this time he asked for money for a smaller machine. I asked for other options to be considered before we got the extra machine and we agreed to no longer use the tractor. I went back to work assuming he would move on to another part of the project and we could game plan later. That afternoon I got a text from my girlfriend saying they were driving the skid steer dangerously close to the other retaining wall and she thought they may fall through it. When I got home I asked him why he had proceeded to drive it back and forth after we agreed not to and he informed me the neighbor I was splitting the project with told him he could go ahead and do so. On the following Sunday the neighbor not involved with the project and on the other side of a different, previously sound retaining wall informed me that the tractor traffic had caused cracking and bulging in the retaining wall and he was concerned if we received a heavy rain the wall may come down and block his driveway.

Where are you located?

Fort Worth, TX

I would think you'd have a pretty good small claims case. The problem is the contractor doesn't have to prove anything to file the lien. The burden would be fully on you to prove your case, and I can't imagine the dollar value is worth it. Even on multi-million dollar projects, the we've found the cost isn't worth the fight until we start encroaching on about $250k.

I was told by an attorney you need a signed contract and it must be filed with the county clerk's office. I asked who does that and he replied, "pretty much no one". I don't know if that's better the case or not, but I've never filed a contract with the county clerk.

I had a mechanics lien put on me, so I am intimately familiar with this process.

If there is no contract, the lien will be invalid if filed. Period.

I spent the better part of a year inside of TX Property Code 53, trying to educate my self on what to do. I AM NOT AN TTORNEY, but here is what I know - perhaps this can put you at ease:

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53.021:
Sec. 53.021. PERSONS ENTITLED TO LIEN. (a) A person has a lien if:
(1) the person labors, specially fabricates material, or furnishes labor or materials for construction or repair in this state of:
(A) a house, building, or improvement;
(B) a levee or embankment to be erected for the reclamation of overflow land along a river or creek; or
(C) a railroad; and
(2) the person labors, specially fabricates the material, or furnishes the labor or materials under or by virtue of a contract with the owner or the owner's agent, trustee, receiver, contractor, or subcontractor.
(b) A person who specially fabricates material has a lien even if the material is not delivered.
(c) An architect, engineer, or surveyor who prepares a plan or plat under or by virtue of a written contract with the owner or the owner's agent, trustee, or receiver in connection with the actual or proposed design, construction, or repair of improvements on real property or the location of the boundaries of real property has a lien on the property.
(d) A person who provides labor, plant material, or other supplies for the installation of landscaping for a house, building, or improvement, including the construction of a retention pond, retaining wall, berm, irrigation system, fountain, or other similar installation, under or by virtue of a written contract with the owner or the owner's agent, contractor, subcontractor, trustee, or receiver has a lien on the property.
(e) A person who performs labor as part of, or who furnishes labor or materials for, the demolition of a structure on real property under or by virtue of a written contract with the owner of the property or the owner's agent, trustee, receiver, contractor, or subcontractor has a lien on the property.

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The key for the contractor is 53.052 through 53.055 in which they must meet certain timing criteria AND language criteria in their affadavit.

BUT, even better, section 53.254-53.256 is where things get really more difficult for the contractor:

http://www.statutes.legis.state.tx.us/Docs/PR/htm/PR.53.htm#53.254

Without a contract, or some real diligence on their behalf, any threat of a lien at this point you can just laugh at.

Again - I AM NOT AN ATTORNEY, but I certainly can sympathize with what it feels like to be in this situation. Without a contract, I would be hard line about things..."I will pay you X after all the damage is satisfactorily repaired." If he doesn't agree you have saved yourself some money. It's up to him to then take you to court outside of a contract and try to prove his case. Likely won't happen.

I appreciate the response.

At this point I have a bid for repair to all his damages totaling about $1,100 more than what I owe him. He sent, via email, his account of events last Thursday to my neighbor and myself and stated that a non-response would be taken as an agreement to his account. The problem is it's just a he said, she said at this point about how he feels. It's irrelevant to me because the damage is real regardless of the conversations on the way there. I will say it was therapeutic in some way to put together my own timeline along with some photos of the damage which I plan to send out to him later today along with a copy of the bid for repair and an offer of a settlement agreement with some money for him to go away. We will see how it goes.

Fraudulent liens can also be removed without charge and without notice (unless the statute has changed -- haven't looked at it in a number of years). However, I would hire an attorney as the process is a little tricky.

again, not a lawyer here, but...certainly he realized he had no grounds to file a lien, so he went this route, and rather quickly I might add. Question - how much money are we talking here? Unless he is going to represent himself, attorney's fees are likely more than what all these damages are gonna be. If you understand the money involved, you could call his bluff so to speak. If the attorneys fees alone are a small fraction of the overall project, then you may have to fight it with an attorney yourself.

Honestly, lesson learned from my experience - I would just sit and wait for him to act rather than rushing to an attorney and start to pile up bills. I bet this is all just strong arm tactics to get you to give him money.

As far as that line in your "contract" about "grass not covered" - again not a lawyer here, but I don't believe you can contract yourself out of negligence - if you can prove that. Liability waivers are just that -for liability but not negligence. I'd like to think if there were conversations (hopefully you documented this) about all the warnings and hesitation to use damaging equipment, and he ignored those, then you have that in your favor. unfortunately this sounds like a bunch of he said/he said stuff.

It's 100% he said/she said. I do have a text from him saying he felt it was too wet to use the tractor and I agree that you're right. He's attempting to strong arm me into paying. He states in his filing that I haven't offered to pay him any amount even though the previous day I emailed him an offer along with a settlement statement. He is not hiring an attorney. If anything he's filing out of spite knowing he could lose but also knowing that if I hire an attorney I will have to spend money out of pocket on that. Even more spiteful is that he named my neighbor as a co-defendant who is supposed to be his friend. It's all pretty out of hand at this point. He also filed in Travis County although work was performed in Tarrant so I'm hopeful a motion to move to a local court will wrench up his plans. As of now the neighbor has called him and left a "what gives" message and probably requesting an in person meeting.

Can't file in Travis, that's just stupid.

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He is not hiring an attorney

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Then I wouldn't do anything. By all means keep your money. If there was work done that was satisfactory, I would pay him that, with a certified letter stating that acceptance of this payment for work performed concludes the relationship. Then wait and see if he does anything.

It's tough when you've been served and know that you are in the right, so just sit tight and wait. I wish I had done that in my situation and it would have saved me $6K in attorney's fees. In hindsight, for me - nothing ended up happening with the lien and the one year action period expired. The lien is still on my property, but I have reached out to the now new owner and it will be removed soon.

I'm still required to submit a response to the court by Monday 4/23. Then I have 20 days to file a motion to transfer venue. For all of this I still feel like I'm ignorant enough to need the assistance of an attorney.

Streetfighter 02 said:

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I'm still required to submit a response to the court by Monday 4/23. Then I have 20 days to file a motion to transfer venue. For all of this I still feel like I'm ignorant enough to need the assistance of an attorney.

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Look around for services that provide free or cheap legal advice. If it's reasonably cheap to draft a countersuit, I would file that.

If he's going to be ****ty about it, he shouldn't finish the original work or repair his damage. If he feels spiteful, he's going to do a shoddy job on both. Sue him for the difference between the new damage and the work he's completed plus legal fees.

He can't indemnify himself from damages he caused by running equipment that is too heavy for the condition of your yard with a single line "contract." If he isn't going to hire a lawyer, you'll likely have an easy win.

The local Bar Association does have some services that allow for cheap 20-30 minute consultations. I've gone ahead and set up a consult tomorrow afternoon with an attorney recommended by a friend. If this attorney doesn't want to give me the advice I need without a retainer I may try the other options. For now I have a solid document typed up for the motion to transfer venue citing both rules that cover where it is proper to file a law suit.

According to Rule 510 of the Texas Rules of Civil Procedure Part V Rules of Practice in Justice Courts a defendant in a small claims case or debt claim case is generally entitled to be sued in one of the following venues:

• (a) In the county and precinct where the defendant resides.
• (b) In the county and precinct where the incident, or the majority of incidents, that gave rise to the cause of action occurred;
• (c) In the county and precinct where the contract or agreement, if any, that gave rise to the cause of action was to be performed;

Furthermore according to Chapter 15, Sub-chapter E, Sec. 15.0821, of the Texas Civil Practice and Remedies Code, except as otherwise provided by this sub-chapter or by any other law, a suit in justice court shall be brought in the county and precinct in which one or more defendants reside.

Hopefully the JP of the court will agree. Technically any court in the state has jurisdiction but not every court is the proper venue in which to file.

As far as answers are concerned in small claims and justice court the best course of action appears to be a general denial. No specifics are given on the answer form.

My biggest question isn't how to file a counterclaim. That is spelled out in the document TEXAS RULES OF CIVIL PROCEDURE PART v- RULES OF PRACTICE IN JUSTICE COURTS. My question is if I file the counterclaim should it be filed in Tarrant or Travis and if I file in Travis does it validate his choice of venue? My assumption is I should file the counter in Tarrant regardless of the venue in which he filed. Hopefully I can determine that tomorrow and if not I'll keep looking.

Is this what you mean, CapCity?

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If a judgment is entered in your favor, the court does not collect the judgment for you, nor can it force the party to pay the judgment. It is very difficult to collect a money judgment in Texas. Only non-exempt property of the judgment debtor may be seized to satisfy the judgment. Most judgment debtors do not have non-exempt property; in other words, most people have only exempt property. It is likely that it will be difficult to recover any money. Please consider this before you take the time and expense of filing a lawsuit.

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it's another component that's part of the equation, yes. I was told by numerous attorneys - you may very well win, but might not ever collect. It's difficult to get the money.

I did not see it mentioned, but do you know if he is insured? General Liability (if written correctly) should cover the damage done to the other walls, spriklers...etc. Might be worth checking. This will allow you to pay him and the damage will be repaired through his policy. Everyone is happy.

All this assumes the policy both exists and is correctly written for the work he does.

I've filed a claim with my insurance provider and I'm waiting to hear back on if they will cover me. There is no way I see him using his own insurance to cover the repair without being forced to do so. He is very hung up on all the supposed "free" work he did that I don't appreciate. I apparently offended him when I mentioned that the project was running long and I was tired of parking four cars on the street. My dissatisfaction with the wall being out of level and not straight was also offensive.

The way this is shaking out, I highly doubt it.

It sucks because it gives the rest of us (contractors) a bad name.

Streetfighter 02 said:

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I've filed a claim with my insurance provider and I'm waiting to hear back on if they will cover me. There is no way I see him using his own insurance to cover the repair without being forced to do so.

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I would be surprised if your homeowners carrier will take this on but it is certainly possible depending on the policy form. That said, it is not his choice, it is your choice whether to file a claim on his insurance. Granted, it is unlikely he will just give you info now after the fact. It may require an attorney to pry it out of his hands...assuming again he even has a GL policy.

My thought is, even though verbal agreements can be binding, he added to the "scope" of the work by damaging other property and everything needs to be complete per that agreement before payment can be made. If you agreed to a potion of the work to be paid prior to completion and you have not done so, that may be the root of the issue. Often these guys do not have the reserves to pay cash for their labor and materials and so a small hiccup in cash flow hurts all current and future jobs. These guys go out of business (then re-brand and start again) very easily with the smallest interruption.

Lessons learned and certainly does not help you now, but you always want a copy of the contractors certificate of insurance prior to the work starting. Be sure to email his agent to verify the policy is still in effect and that it actually is written to cover the work being preformed.

Corps_Ag12 said:

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The way this is shaking out, I highly doubt it.

It sucks because it gives the rest of us (contractors) a bad name.

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I would agree it's very possible he has no insurance and even if he did, it's probably not written correctly and therefore would not cover their operations. I'm in the commercial insurance world with about 60% of my clients being contractors of various size. Most of these small guys just simply do want to pay what is required to protect their business and their clients the way they need to.

We both changed some aspects of the scope of work. I asked for him to run a pvc future under the footing. He said no problem and ran a future through the wall instead. I also requested soil be level in front of the rear half of the wall before and during the project. Again, I was told this was no problem. Lastly I asked him to scoop some stone at the front of my house if there was any room left in a dump truck load. He did so but left other excavated soil from initial demo sitting in the driveway. That's all a wash. Every time I asked for anything I told him if it was an issue to let me know. He took it upon himself to drill piers for the footing so it would be more robust. He also took it upon himself to spread mastic on the back side of the stone for water proofing after he saw water seeping through the mortar.

I'm going to try and do this all Pro Se. We will see how it goes. Like I said before the counterclaim is where I'm hung up. I hate to file a counter in Travis County because it could somehow validate his venue but for the counter to be properly tied to the initial claim it seems as though that's the proper procedure.

If neither you or the work was done in Travis county, you can't file there. Filing in a non-party county court is a BS delaying tactic I heard from some paralegals I know. File a response in another court, assuming you are Pro-se and the courts will give 'somewhat' of a pass. Do it as a lawyer and you get yourself on bad footing with the judge.

I would file a motion to move the claim to where you live and file the counter claim where you live.

My experience with small claims was filing/suing a music venue/promoter for not paying me for a show. Paid me for the 1st and the 3rd, but not he 2nd.

I won and he luckily paid me right after the court case. But in my favor as well, he paid check the first time. So if I had won and he didn't pay, I could at least go to the bank with the old check and attempt to get money.

I have forgotten the statue, but you can make him sweat some more by requesting discovery of his stuff during your counter-suit. Good way to make him have to get a lawyer and burn more money.

as stated before: I learned this having gone through small claims before. I am not an attorney, nor did I stay at a holiday inn last night (homewood suites though).

~egon

Is there a clock limitation to file a counter claim?

If not, I think waiting for the venue to be changed would be best.


(not an attorney.....but you know that)

There is a statute of limitations but it will be filed before that time expires. Talked with Travis County JP clerk and that person said it would more than likely be transferred to Tarrant if that is what the rules state.

With a tele-hearing set for 6/21/18 for the motion to transfer venue I was hopeful the plaintiff would not take the call and case would be dismissed. Instead he filed a motion to accept transfer to Tarrant County on 6/19/18. Seems odd but nothing about this is what I would consider normal.