Legal Question in Construction Law in Illinois

On May 19th 2011 I signed a contract with a company to have my existing driveway seal coated and to have the driveway extended. The work was completed but got the company got tar on the siding of my home and also got tar on my brand new fence. The work was sub par to say the least. I put $500 down and was suppose to pay an additional $700 once the work was completed. The contract date was between 5-18-2011 and 6-18-2011 but the work was completed in early July. Was the contract still good? I called the company and let them know I wasnít happy with the work and wanted them to come back out and complete repairs to the driveway and also wanted them to remove the tar off of my siding. Nothing was done. They told me that there was a 1 year warranty and itís also posted online on their website. Approximately one month ago they contacted an attorney and are suing me for the balance. I went to court without an atty. and spoke to their atty. He asked me if I had an attorney and I said that I would be getting one. He then told me that he would set a trial date. Can I go to court myself or should I be represented? I have photos of the job from beginning to end showing the damages they caused and showing the sub par work that was completed. Can I obtain two estimates for the damages to my home and two estimate for damages to my driveway to have repairs completed and counter sue? Do I have to bring the expert to court? The photos I have obviously show negligent work completed by them.

Asked on 3/27/12, 10:29 am

1 Answer from Attorneys

1. Can you go to court "pro se" or SHOULD you be represented: This is your risk. If you do not have proper evidence and do not properly introduce it, it can be excluded or ignored by the court.

2. Can you counter sue: You may have to do more. Normally if you are sued you are required to file an "answer" which admits or denies the plaintiff's claim within a specific period of time. Then, if you have "affirmative defenses" (such as their having damaged your property which should be a breach of contract and that the work was not performed per contract as another breach) it is appropriate to add them. Finally if you wish to counter sue you can. These pleadings, taken together, would constitute a "full" defense based on your presented facts. Properly writing up these pleadings is something an attorney is trained to do. In addition, you may have other recourse, through motions that could attack their case or bring it to an end without a trial.

3. Can you also get attorney fees? You need to look at the contract. If it provides that in case of a dispute the "prevailing party" also gets its attorney fees and court costs, you could be shortchanging yourself because if you win, the contractor may be required to cover your attorney fees and court costs.

4. Warranties: If the contractor performed work badly, that is not what a "1-year warranty" is usually for. There are several kinds of warranties: warranty that the work will be performed per contract, warranty of performing in a good and workmanlike manner, and the kind most people think of: the kind of warranty that, after the job is completed per contract and paid for, that if the work proves out to be bad at a later date (up to a year in your case) the contractor will come back and fix it.

5. "Expert": You have to prove up the damages. Unlike auto insurance repairs where the insurer wants "two estimates" the plaintiff in your would be entitled to cross-exam your evidence and you can't cross-exam written estimates. While a court MAY accept your own estimate of the cost involved, to testify as to actual costs you need a "real" person. If that person may wind up actually doing the work, then this probably will come out on cross-examination and your new contractor's estimate of cost could be undermined. So in some situations instead you might bring in a "cost estimator" type who only gets paid for his expert opinion of cost, but this too can be undercut by good cross-exam. However, again, it may also be part of your court costs if you have to pay for those people to appear and testify.

6. Pictures are helpful if they are good pictures, but you still have to introduce them properly and they don't tell anyone "how much."

7. Is the contract "good". Couldn't say, I'd have to review it. But the fact of the matter is that their claim is most likely that they performed the work per contract and the only thing left to be done is for you to pay them the balance. You do have a contract and the fact that they performed late and you let them, is sufficient. You have to prove they breached the contract.

Finally, there is always what an attorney can do for you, which includes all the above and to help settle it if possible.

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Answered on 3/27/12, 11:16 am

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