I hired a contractor to build a barn. I paid him for all the work. 5 months after project finished the brick sub contractor left a note in my mailbox saying he wasn't paid in full. He filed a small claims suit for 7k against me. I went to the hearing and showed my cancelled check which included the brickwork. The judge told him to subpoena the contractor to show up in court. The hearing is in 2 months. Does the subcontractor have a case against me or should he sue the contractor. I'm in Texas and the contractor won't return my calls or the subcontractor. Any advice is appreciated.
If the subcontractor has secured his lien rights, (which require certain notice letters be mailed via Certified mail and the lien affidavit be filed timely), then yes that sub may have a valid claim against you. The law puts the burden on the owner to then go after the non-paying contractor for the "double payment" you were forced to make. The subcontractor only needs to prove that he has a valid claim and that his lien is proper. He technically does not need to prove anything as against the general contractor or join it as a party.
The good news is that since you're in small claims court, if you continue to fight the claim and get an adverse ruling, you have an automatic right to appeal the ruling to a county court, which resets everything. However, you only have a limited time after the judgment to take that option, and will very likely need a lawyer to handle that work. This would only be worth it if you have a good shot at knocking out the subcontractor's lien on some procedural basis, which is very often doable, but requires a fairly deep knowledge of the law in the area of liens, which in Texas is very complicated.
Long story short, so long as you preserve your right to appeal the small claims court judgment, argue any requirement the subcontractor has not met in perfecting their lien, and if you lose, preserve your right to appeal!
Very best,
Ben House
281-762-1377
ben@houseperron.com
Hello,
This is actually a fairly nuanced question and there are several ways it could go depending on the judge.
What we know for certain is that you paid the GC in full for services. The sub is a third party beneficiary of the contract between yourself and the GC. The third party beneficiary does have rights, one of them being the right to sue for nonpayment. However, in this instance, it appears from the facts given that you performed on your responsibilities to make payment. From where I sit, it looks like pretty good for your side to succeed and the judge is recognizing that you are not the proper party being sued.
The judge has a few options.
1. Make a finding for you, the defendant. If he does this, case is over and Plaintiff has to appeal to County Court. But Plaintiff can only appeal with the current parties, he does not get to add the GC if the GC hasn't already been sued.
2. Dismiss the case for failure to add necessary parties (or whatever reason he wants). This gives the Plaintiff the ability to sue again but only if he can find the GC which, per your facts, is going to be difficult.
3. Make a finding for the Plaintiff. This does not seem likely but I have to be thorough. I cannot really see this happening outside of an inexperience judge but even then it does not seem too likely. But your argument is that there is no breach of contract or anything like that because you performed on your obligations. And you can argue that the case should be dismissed for failure to join the necessary parties because the GC is the one who actually has the money for the sub.
A lot is going to depend on how the judge sees it but if the Plaintiff can't find the GC, you probably want to be more active than reactive. If the judge makes a finding against you just to get the sub paid, that's a 14K bond to appeal to County Court. Consider finding an attorney to discuss more specifics.
E. Aaron Cartwright
214-789-1354
Aaron@EACLawyer.com