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At a Braden Family Home
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We need to keep this hypothetical. I donít want to end up in court again.

So letís just say there was a time when Bonnie and I bought a home in Florida that did not have a swimming pool. We had built a swimming pool at our first home in Valrico and we just loved it. So we wanted one for our next home. So we found a local contractor who was more expensive than other swimming pool contractors, but he had a good reputation so far as we knew and we went with him.

During the construction, there was one problem. On the day concrete was placed for the deck, it rained. That meant the surface of the fresh concrete was a bit watery. When the concrete cured, it turned out that there were sections of the deck that had a smooth surface, not a slightly roughened surface as you need when people are going to be walking around the wet deck of a swimming pool.

So we contacted our contractor and asked him to come out and make a fix. I might add that the technology today for Portland cement is very advanced. One can buy a specialty high strength cement that is made to go on in a very, very thin layer, yet still bond with the layer underneath. That new layer, placed atop the concrete that was smooth, could be roughened gently and the problem would have been fixed. My estimate was that in an absolute worst-case scenario, the contractor could get the job done for $800 or less. And this wasnít bad considering the premium price we paid initially for his work.

But all we got from the contractor was a runaround. It became clear that he had no intention of coming out and making the fix.

So we called some other swimming pool companies to come in, and we asked their opinion on the deck. Unanimously, they all agreed that the deck was to slick and needed to be fixed. And they were glad to give us a price to do that: somewhere around $3000-$3500. Yes, a lot more than the $800 that it wouldíve cost them, but they were evidently looking at a big profit for the job.

So we collected their estimates and then pointed out that the only way would be able to do business with them was after we took the initial contractor to court, and thatís how we would get the money to pay them.

But it turned out that our initial contractor in this hypothetical was the President of the local Swimming Pool Contractors Association, and there was absolutely no way that any of the other pool companies that came out to give us an estimate would agree to go to court and testify that the initial work done was substandard and needed to be repaired.

In the meantime I found a local lawyer who is a member our church and agreed to handle the case for me in Small Claims Court. At that time I thought I had finally found a swimming pool contractor lined up to testify, so this is going to be a no-brainer case.

The first step in a Small Claims Court process is - through the court system - to send the opposing party notification of your intent to pursue your action in Small Claims Court. So I sent this letter and my hypothetical contractor and I showed up in Small Claims Court. There, as with most of these type procedures, we were first matched with an Arbitrator whose goal was to see if we could settle things outside of court. My contractor objected to the process, noting that my letter was to him, and in fact the letter should have been to his pool company. The Arbitrator said, ďNo problem, we can fix this with a pen and ink change.Ē But my contractor said, ďNo, I donít want to do pen and ink. If he wants to contact me he will have to do re-do his letter.Ē So that ended our arbitration session area. And I had to generate another letter. My initial claim was for around $3500, but somehow the arbitration session made me review what would take to really get the fix, so my second claim letter to the contractor was for around $4500. As with the first letter, I sent my second letter by certified mail. But I heard nothing. After about three weeks I was notified of the post office that it had tried to deliver the letter, but that the pool contractor had refused to sign for it. So I got my second letter back.

As I was drafting my third letter, this one to be delivered for $75 by the police department, I again reflected on what was really going to take to get my deck fixed. And that number turned out to be around $5500, even though the limit for a Small Claims Court action is $5000.

So finally we had a court date. But early on the day before court my one contractor who was going to testify backed out. And I had to go to tell my lawyer that we had no witnesses. Iíll never forget the devastated look he had on his face.

As we were sitting there, I told my lawyer friend that I had taught concrete construction at the US Army Engineer School, and it might be possible, even though I was the plaintiff, to be sworn in as an expert witness. He agreed we could try.

There was one major problem. And that was how to convince the judge that the deck surface, as placed, was to smooth and therefore slippery. Photographs would not really do a good job, and for a Small Claims Court case, it was not realistic to ask the judge to move the trial to my home. As I was wondering what to do, Bonnie had an answer. She pulled out a role of aluminum foil and made two rubbings; one of a section of the deck that had a proper surface and one of a section of the deck that had an improper (too smooth) surface.

The next morning we met in court; I had my lawyer ande pool contractor represented himself. Almost surprisingly, the pool contractor did not object to me being sworn in as an expert witness. And I explained the problem of placing concrete in the rain. We also presented the judge with the two rubbings, and I have to say that those rubbings probably won the day.

When he came the contractorís turn, he asked to present to witnesses by phone, and we agreed. Again, in this hypothetical situation, letís say the contractor had two former employees who agreed to try to ďhelp him outĒ in court. So letís just say that my lawyer, who really didnít know much more about pool construction that what he heard that morning in court, very nicely and very politely ripped them apart and did so in a manner that they didnít even know that they were being destroyed. But the judge did, and thatís who counted. If the rubbings didnít seal the deal, then my lawyer effectively converting the contractor witnesses to our witnesses did.

For some reason that I donít recall, there was another court session required. That just added to the legal fees. Did I mention that while the limit on a Small Claims Court cases is $5000 in damages, there is no limit on reasonable lawyer costs.

And so, as you might guess, the court found in our favor, and we were awarded something like $8350, of which $3350 was legal fees. So if we could collect, my lawyer friend would have done okay.

The problem, in Small Claims Court cases, is getting the losing party to pay. But after one month my lawyer made one brief phone call to the contractor. He asked a simple question, ďWill you be sending us a check or will we be sending the sheriff out to impound your equipment?Ē

We had the check the next day.

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