[traceyrco]

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.

[rockinmommy]

Ok. One question.

If you're so sure you're going to win and have the proper evidence in your favor, WHY NOT just hire an attorney and quit freaking out about it. They'll wind up having to pay your attorney fees.

I know you have handled your other case yourself in the past or whatever, (I remember your dad's post), but why take the chance on screwing up some minute detail of this and losing the case? I don't know how good their atty is, but I just don't see the point in torturing yourself over this. It seems like you're actually enjoying it.

[traceyrco]

Rockin mommy, that requires a retainer up front - and the lawyers we've spoken to say $5,000.00 Unfortunately that's not an option for us. If you know much about the legal system - regardless of how rock solid your case is, there's always a chance to lose. In the event of a loss, we'd be out at least the $5,000 - more if it went to trial - plus their crap. If you also knew much about the legal system - you'd also know there are a lot of lazy lawyers - so a lawyer is not a guarantee of good representation. There again, you pay $100 - $200 for a consultation to interview these lawyers. Just finding a good lawyer is expensive in itself. I don't enjoy stress at all and for us $3,100 is something to stress about much less the injustice of being railroaded by a scum bag company who has had other complaints about them.

Your comment "It seems like you're actually enjoying it" is quite unfounded and not very nice. It was quite a shock to learn this was not in small claims - although heard by the small claims judge. It makes it an entirely different ball game.

[rockinmommy]

It was quite a shock to learn this was not in small claims - although heard by the small claims judge. It makes it an entirely different ball game.

You're right, it is an entirely different ball game! That's why I suggest getting an attorney. Sure there are horrid, lazy ones. There are also very good, professional, hard-working ones who know a good deal more about the law and the legal system than you or I do combined.

ESPECIALLY, when the case isn't in small claims there's just too much to weed through to risk doing it without an attorney, in my opinion. ESPECAILLY when the other side HAS an attorney. I think your risk of losing the case on your own and owing the plumbing bill, PLUS court costs, PLUS legal fees is MUCH, MUCH greater than losing the case with an attorney on your side.

I'm confident that if you get personal recommendations you could find a good atty who would take a strong case like this for a much lower retainer and increase your odds of winning!

Good luck! I didn't mean to be rude to you. I just think all the time and energy you're putting into this would be better spent looking for decent legal representation rather than trying to navigate this on your own.

[traceyrco]

Rockingmommy,

I agree - but like I said it's expensive unless we can prove deceptive trade practice and get a judgement on the 3 times what they're asking for. This is actually a criminal offense and I just found out today in the statutes that the district or county attorney has to prosecute these. That's an idea if we can get the police to take it and send it to the DA - then getting the DA to do anything is another hurdle. Wish we had the money to get the lawyer - but it's just not looking good. Found some good stuff at the law library and am going back tomorrow. The plumber that was here doing the work is the owner's son. He has a past of numerous restraining orders over the years for his ex-wife. He forfeited a bond or two. He's been accused of petty theft greater than $500 - less than $1,500 - assault several times 12 years ago. Just ridiculous stuff. They were accused of employing an unlicensed plumer but was acquitted by the judge - I'll look that case up tomorrow. This just sucks - and I never use that word.

Anyone else have any ideas?

[JudyKayTee]

Rockingmommy,

I agree - but like I said it's expensive unless we can prove deceptive trade practice and get a judgement on the 3 times what they're asking for. This is actually a criminal offense and I just found out today in the statutes that the district or county attorney has to prosecute these. That's an idea if we can get the police to take it and send it to the DA - then getting the DA to do anything is another hurdle. Wish we had the money to get the lawyer - but it's just not looking good. Found some good stuff at the law library and am going back tomorrow. The plumber that was here doing the work is the owner's son. He has a past of numerous restraining orders over the years for his ex-wife. He forfeited a bond or two. He's been accused of petty theft greater than $500 - less than $1,500 - assault several times 12 years ago. Just ridiculous stuff. They were accused of employing an unlicensed plumer but was aquitted by the judge - I'll look that case up tomorrow. This just sucks - and I never use that word.

Anyone else have any ideas?

No matter how much research you do you are at an enormous disadvantage in a superior Court if you are not an Attorney - you do not know the Law in order to present or pursue your case, you are not familiar with Court procedures and the climate of the Court. Judges have little patience with non-Attorneys.

I think you are confusing criminal and civil issues.

I think you need to find an Attorney you can afford.

[traceyrco]

Well, I consulted with a 4th attorney today and they've ALL said that for $3,100.00 we're worse off hiring an attorney and he wouldn't take it saying that he felt hiring an attorney was worse than the $3,100 should we lose. He added it sounded to him like we could muddle through it. This is a repeat of what they've all said.

I will say that the judges in our county are very accommodating to pro se folks - and this is a small claims judge so he's going to be more so than the district court's judges. I've actually sat in on court proceedings in this county with pro se folks more than once and all of the judges we very nice - including when I was pro se up against my rapist with his lawyer. The judge was nice as can be to me and actually he gave me as much or more as if I'd had a lawyer for that particular motion.

I wish we could get an attorney - all we can hope for is that the discovery we have showing them at huge neglect and proving that they did in fact cause the damage - and their client even stated in writing to the State Board of Plumbing Examiners everything they did and our willingness to pay what we did have an "implied" contract for - so they really don't have much of a case. If they cannot answer our Interog and produce the documentation that their 85 psi in our lines could not, would not, will not and did not cause the damage we suffered - they don't have a case and I have evidence out the yaggie to show that the normal testing pressure should be 3 to 5 psi. If welded pipe is to be tested at 60psi - then "hello" a jointed pipe sure wouldn't hold even 60 - not designed to.

There was no contract implied for repairing the damage they caused - I looked up the entire contract chapter at the court house today - there was no contract, or implied contract and the "quant - whatever meruit" is only on the damage they caused and forcing that would be fraud - so with our discovery answers my thought is to send a settlement offer for what we tried over and over to pay them - $700 (which they admit on paper) less our expenses for attorney consultation fees and the other plumber to come and fix the one riser they left leaking.

This is the problem with the laywer they have - he either has to bring his happy 5 hours to our county or hire a local - and really? Is there money in that for him when so many cards are stacked against them?

What do you guys think of that? Thanks for the response.

[dontbefooled]

I think what the folks here have been suggesting--that it would be more expensive to litigate this matter than any return would merit--is sensible.

I'm not sure why you want file a counter claim unless you are seeking relief beyond just prevailing in the existing case. I am not clear where you believe the plumber was deceptive rather than just neglegent or incompetent. I am also unclear as to why the Texas Attorney General or the your district attorney are considering a criminal complaint pending the outcome of a civil matter. However, I'm not a lawyer and I don't know all the details of your case.

The attorneys you have consulted are giving sound advice that it isn't cost effective to pursue this matter. In principle, it would be great to prove your case, but litigation is like poker: You have to know when to fold your hand. You have been through this greullling process in your criminal case, so you know it is a huge ordeal. Even if you win on a counter claim, you still have to execute any judgement to collect, which is another difficult process altogether and will cost additional money.

Perhaps a mediator could arrive at an agreement that is accceptable to all parties and at a much lower price than gearing up for all out war in court. Maybe they will agree to your settlement offer or make an acceptable counter offer.

Good luck in whatever path you choose.

[traceyrco]

The reason the act is criminal is it's fraud to knowingly charge someone to repair the damage you as a contractor created. The amount is also over $1,500 which makes it a low ball felony. The guy was totally stupid to have done it - but he knew full well what he was doing when he wrote out the bill about 6 times on the same invoice number! This is nuts. They didn't even fix the pipes back like they were - they used a cheaper method.

That's why there is an axe to grind and why we must fight it anyway possible. We had our house screwed up for a week, fixed with lessor product, charged for their damage and now court costs and legal fees for the privilege of this guy's stupidity and theft? Which by the way - he was thrown in jail for theft before too.

That's why we're fighting - keep the recommendations coming - and I'll let you know how it turns out. This family has been through several litigations on various levels - geesh - we must be magnets for like Yellow Cab and Roto Rooter! How can one group be that unlucky? Anyway - we fight like the ens and so far - so good. I think in the end honesty prevails and God just won't let the bad guys get the best of you in the end.

[cdad]

Have you tried homeowners insurance ? Many times there is clauses in there for times when you are being sued and it involves the property. That may provide some relief. Also if your so sure of winning rather then trying to pay them back for something they have done.. you really need to refocus. Take one step at a time.

[traceyrco]

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

[excon]

I think in the end honesty prevails and God just won't let the bad guys get the best of you in the end.

Hello tracy:

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

[JudyKayTee]

I think in the end honesty prevails and God just won't let the bad guys get the best of you in the end.

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 -

[traceyrco]

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]

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.

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.

[traceyrco]

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.

[JudyKayTee]

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.

You said you're countersuing - and that CAN become a contingency matter.

[cdad]

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.

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.

[traceyrco]

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?

[this8384]

Interesting how when someone is seeking real justice - some here want to put me down.

I hope someone will eventually find this post that knows a little something about the law.

Hold up; who's putting people down? I'd love to know what you've learned about the law... did you pick up most of your legal knowledge during your "modeling" days?

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.

Well, why don't you just pat yourself on the back because it just sounds like you're Citizen of the Year. With people like you watching out for me, who needs enemies?

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.

Yes, that's it. We're all sitting behind our desks thinking, "How can we give inaccurate legal advice to this saint of a woman?"

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.

If you've got all the answers, then why are you still asking for one?

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?

You amaze me. You come to this website, ask for advice, start screaming at people when you don't like the answer, then have the audacity to turn around and say that others are rude? People have answered truthfully with you; you need a lawyer. I'm sorry that you and/or your parents can't afford one but that doesn't give you alternative options.

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.

I think in the end honesty prevails and God just won't let the bad guys get the best of you in the end.

*ROLLING EYES* We all have gotten screwed over one way or another; typing in CAPS lock and using bold & underlined type while responding to other people is not going to change your situation. So please, cut the drama and accept reality.