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Need to counter sue for deceptive trade - formal court but small claims judge
Asked Sep 3, 2008, 07:56 AM
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22 Answers Hello we are in Texas First, I want to say I feel totally helpless to help my dad here. This totally reminds me of when I was raped and then sued by the rapist of all things and all the laws protected him and his rights. I fought through that criminal and the civil case he brought against me - but I had a lawyer and the Districe Attorney to do my talking. I researched and told the lawyer what to say - but he could write up the paper work and talk with the plaintiff's lawyers. I begged the DA not to let the defense attorney get by with the usual stuff and not to just plea it out like they were going to do and somehow I convinced the defense attorney I wasn't playing games and they gave up after 2 years and plead out on my terms. Anyway, this plumbing situation makes us hiring a lawyer impossible - and so basically - these scum bags wreck dad's house and he has to pay for it - regardless of all the evidence we have in our favor - plenty to win in small claims. We don't know how to file a counter in formal court and we don't know how to admit the evidence if we do get to court. They wanted interogs and requests for doc. And we asked the same - if they can't answer one question - then we have them and can motion to dismiss - but in the meantime - we need to counter sue by the end of the week. Here's the story: I'm trying to help my dad with a law suit brought on by a national plumbing chain franchisee. They came out to replace a gas riser and blew out all the joints in the house with 85 lbs. Psi (per them in writing) and 100 psi per them verbally. We have the city inspector who will testify that this caused all the damage in the house. This pressure test (85 - 100 psi) caused them to have to replace the work they'd already done as well. Dad refused to pay them for the repairs in the house (all joints were holding at 50 psi the day before they used 85 - 100 psi) as they caused them all, just as they had to repair what work they performed on the exterior riser due to the excessive pressure test. In fact, the plumber had a terrible time trying to get the riser to hols and later we had to have another plumber come out and again repair one of the risers dumb head had replaced. So, the plumbing chain has a lawyer in another city within our state suing us. We have in writing from the plumbing company that we tried to pay for the work they did excluding the in house repairs. We have the gas line testing proceedures from cities across the country and near by that says to use 3 psi to 20 psi. 60 psi for welded pipe - duh - residential doesn't use welded pipe. Anyway, we need to know how to word the counter suit from the Texas Deceptive Trade Practice and it should be fraud under the penal code as well. The bill for what dad agreed to was $700 - they want $3100. For Texas that's a felony. The State AG has an open complaint for us and the State Plumbing Examiners too. Both are waiting to see the outcome of this case - so there is a lot on the line for the plumbing company. They've also altered their invoice several times. Why - who knows - it's very odd and in the Texas Deceptive trade practices that's a no no too. The only law for the DTP I can find that would apply is 17.47 (b) (13) Someone suggested a breech in contract claim - but it was only a verbal on the risers. And actually, when the idiot said the second riser was leaking - it had so signs of leaking either - he just couldn't get the one he replaced to hold, so he kept looking to replace everything - and he ended up going back to the first riser at least 3 times in all of this mess. They are suing for Breach of Contract, Breach of Implied Contract, Quantum Meruit - ha, Reasonal and Necessary Attorney Fee, Prejudgement and Post-judgement Interest. Texas says you can sue on DTP for 3 times the monetary damages. I'm just beside myself in that in small claims court it is totally winnable - but this formal court makes me want to puke. |
22 Answers
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| Also if your so sure of winning rather then trying to pay them back for something they have done .. You really need to refocus. Califdadof3, We tried and tried to pay them what we agreed to have them do and they would not accept the payment - they only wanted full payment (which they put this in writing to the State Plumbing Examiners board) we even "trusted" the moron when he said the other riser was leaking - and hind sight we realized there was no sign the other riser was leaking at all - but we'd pay for it - as we agreed to. We are not, will not, would not pay for someone to come into our home, recklessly cause $2,500 property damage, bill us for fixing it - which is legally fraud - that would be crazy. Are you suggesting we owe them for fixing what they damaged on our property? And now, they've cost us so much by filing a lawsuit based on a fraud - they're on the verge of owing us more than the $700 we tried over and over to pay them. In fact, the remedies I'm finding on the law books, they could owe us twice that or more. We are not greedy people, but at some point people need to be sent the message - when you commit fraud, and break the deceptive trade practice act - you have to pay the consequence. At this point if their corporate lawyers set them straight on what they did - and that the State Plumbing Examiner's board is taking action against them for this - if the corporate office drops the suit - we'll never counter. We will only counter to protect ourselves from a fraudulent lawsuit. You are right about the home owners insurance - I just read that yesterday - but we recently changed insurance companies - not sure how that would play out. Now I've invested so much time in this I'm finally getting the hang of it. Found a state supreme court ruling that will help us a lot too. Thanks for the input | ||||
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You seem to have researched a lot.... It also seems as though you have all the ammunition you need to win... However, if you don't have a delivery system for your ammo, you can't hit anything with it. The delivery system I'm talking about is a lawyer, of course. You don't think a judge is just going to let you start talking, do you? It doesn't matter how right you are, if you can't get it into evidence. Nahhh. God lets plenty of bad guys win - cause the bad guys got big guns. If you want to beat the bad guys, get a bigger gun. excon | ||||
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Got to comment that this is only true in Batman movies or if God is an elected Judge wherever you live - Agree with excon - you need an Attorney. And I know you don't want to hear that. You are not familiar with the Courts and the rules, Judges have little patience with amateurs - | ||||
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| Please read my posts guys - NO LAWYERS WILL TAKE THE CASE! Because the judge only awards REASONABLE AND NECESSARY legal fees - which means anywhere from 25% or 35% of what you actually PAY the attorney. So, if I paid an attorney $5,000 (which none of the ones around here work that cheap) and won and was awarded attorney's fees - it would be around $1,000 to $1,500 if I were lucky that's what I'd get for attorneys fees. They didn't burn the house to the ground so I don't have huge counter claims to make. NOW do you get it? WE CANNOT HIRE AN ATTORNEY! Thanks for your input. I hope someone will eventually find this post that knows a little something about the law. | ||||
| JudyKayTee (Sep 7, 2008 02:28 PM):
Correct legal advice. OP didn't like it and is now shouting. Unfair and inappropriate. Source: |
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I already GOT IT - contingency or having the Court award fees is NOT the only way to retain an Attorney. You can also pay by the hour! Lots of people do! You have received advice from people who are educated and/or work in the legal system - you don't want to hear it, but you've gotten it. I don't know what you want anyone to say. You are at a disadvantage without an Attorney. You don't want to pay an Attorney. Stalemate. If you want to be sure someone knows a little something about the law - hire an Attorney. I get it - it's not that you can't hire an Attorney. You want a FREE Attorney. And that's not going to happen. | ||||
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| We have never asked for a free attorney and have paid for all consultations - over $300 to date. You can't hire an attorney on a contingency basis if you're not suing for anything - are you really in the business of law? None of the attorneys would take our case because the court only awards REASONABLE AND NECESSARY CHARGES and no lawyer in these parts charge that - they charge any where from $250 on up - most are at $300 an hour. And for going to trial it's an automatic $5,000 just for the day ahead prep and the day of court. If the lawyer costs us $10,000 we may get awarded $2,000 for legal fees - hence the balance is an unjust expense to us per what the attorneys tell us. While the attorneys here charge an arm and a leg - they aren't out right thieves. All I can say to others who post here and really need help like we do - get yourself some books from the library, search the laws and statutes for your state on line, and go to the law library at your court house or closest law school - you will get way more help than the people that post answers to your questions assuming they know all about you - what you're thinking - that your cheap and you want a free attorney. And that's all the help they can give you - get an attorney - get an attorney - even when you explain to them that you can't for what ever reason you can't. Then you have the guy that suggested we pay these jerks for coming in our home and causing $2,400 worth of damage and we're just suppose to pay them for doing the damage and fixing it. Do yourself a favor and just get the books, search your state website for your laws and the law library - that's all a pro se can do - if you can't get a lawyer for whatever reason - that's better than this forum - until some helpful folks come along to post here. | ||||
| this8384 (Sep 9, 2008 12:24 PM):
You are immature and totally out-of-line. Not accepting accurate advice doesn't mean that people on here don't know what they're talking about; it means that you're stubborn and will keep looking until you find an answer that suits you. Source: |
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You said you're countersuing - and that CAN become a contingency matter. | ||||
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You seem to ramble on a lot and not really know anything about what your speaking of. The other posts here that have tried to help you address your issues were all within the law and were good advice. You make a reference to someone saying you pay these people for all the work that was done. Somehow I don't find any reference to that anywhere. If your talking about my answer to you it doesn't say anything about paying them a dime. Right now you in a defense position. You want payback for being wronged. You DO NOT have to do both things at once. If you were to refocus you could present your defense and reserve your right to countersue pending the outcome of the case. The homeowners insurance is to cover the lawyer bills. They should even send one. That's what you pay for. Slamming the people who GIVE their time to this section of the board is offensive at best and mean spirited. You need to get over whatever it is that's blocking you from being clear. Hire a lawyer -- no excuses. And get on with things. | ||||
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| Quote from above, "this8384 disagrees: You are immature and totally out-of-line. Not accepting accurate advice doesn't mean that people on here don't know what they're talking about; it means that you're stubborn and will keep looking until you find an answer that suits you."Interesting how when someone is seeking real justice - some here want to put me down. Come to find out, this national company sells plumbing franchises. When you deal with the franchise with this national name only on their trucks, ads, invoices, etc. You assume you are dealing with the national company. Come to find out, the corporate office says consumers are completely on their own dealing with a franchise and how is the customer supposed to know they are dealing with a franchise? Or that the national company will not back up the work done by the franchise? Bottom line with this company - they have multiple state attorney generals with judgements against them on both the side of the consumer and their employees. They have a few class action suits for consumers. They have complaints on line that won't end. They have violated many laws in the State of Texas since I've begun my research. This is a bad, bad, bad company that people need to be warned about as they are ripping people off - some victims I've found losses up to $11,000 and $13,000 dollars for instances like we encountered. So, if my trying with all my might to protect my senior parents and other consumers from being ripped off thousands and some times over 10 thousand dollars - shame on you for saying other wise. When I fight for what's right it's not just for me - its for all those out there and I appreciate those that do the same in return. When I am fighting for what's right I will not stop - I will look under every rock to find the answers to righting a wrong. I will ask people until I blue in the face so that I can build a winnable case - even if it means without an attorney when you can't get one. Some of you who've said nasty things about me are the ones out of line and you are the ones that must get a buzz from getting on here and posting "you need an attorney" and call that helping. I've learned exactly what I needed to know from the state website, West's, Vernon's, Dorsaneo they have how to argue the law, how it can be defended, forms for filings, proceedures, trial procedures - everything you need. We will fight this, we will win. The lawyers for the Plaintiff have already shown the court they are dishonest and wasting the courts time. Fililng with a fraudulent document (knowingly) and lying on a certificate of service. And one more thing in Texas and CA there is a law concerning Vexatious litigation where if a defendant can successfully argue this it makes the plaintiff pay a $10,000 security dep. To pursue the case. That would have been very helpful for us had I found that earlier and it was found on the state website. While many, many wonderful people answer posts here, those that have been rude and putting bad marks against me are the kind of people that makes one wonder "what makes them tick?" Do they want to help or do they get some kind of buzz by seeing their posts online? | ||||
| JudyKayTee (Sep 17, 2008 03:30 PM):
This drama belongs on a message board, not here. You asked for advice, you got advice - just not the advice you wanted to hear. Source: |
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Quite frankly, I don't think you're even looking for help anymore; you just want to complain and that's evident by irrelevant things posted in your initial question. This has turned into a "poor me" story. Quote:
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