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JB Umphrey
JB Umphrey, Attorney
Category: Legal
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Experience:  Explains legal matters based on 14+ years experience.
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Weve been sued for Breach of Contract by a local house restoration/water

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We've been sued for Breach of Contract by a local house restoration/water mitigation company. This company did not fulfill their contract of service, removing themselves (I have emails and phone calls with them stating this) twice and never finishing. Then, instead of an invoice for the small amount of work they did do, which was absolutely necessary for our reporting for insurance claim purposes, they provided us as "estimate". When we indicated the estimate was inaccurate, the owner of the company concurred and indicated (email and phone, which I have recorded) that if we were to provide them what we saw as errors, they'd remedy and generate a new draft and eventually invoice.

We responded with a few glaring errors and received no response, no redraft. We then asked for their notes, imagery, and supporting information on our file, for the purpose of comparing notes to reach an agreement on an "invoice" to pay from and file for our claim. The requests went either ignored or opposed and the company rep indicated they would only give us this sort of information if we sent them a good faith payment of $5000, when the errant estimate was for a total of $11,5k. I refused any payment until we reached an agreement and had an invoice. They never replied, until 18 months later when we were served their compliant.

Now, I have offered a settlement of them simply walking away from this situation, because the amount of negligence and breach of duty/contract on their part, including the damages (general, I think) they caused my home (real property, emotional, loss of time, expecting me to do their job in creating an invoice, etc..). We filed a counter-claim for these "general damages" at the time of our initial answer to the complaint, and requested the court leave "amount" tbd.

At this point, we feel we are owed more than we owe them. I have taken my time now to generate an invoice, for which their counsel has not responded, and as far as negotiation out of court, their counsel basically has asked for a trial assuming he has us in the bag, as we cannot afford full representation.

It's more complex than this, to some degree, but this is the gist. We have no uncontested bill/invoice... and I can prove they agreed their "estimate", to which their attorney refers as the "bill", was inaccurate. We told them we'd pay them for work they actually did and because, in my opinion, they don't know what they did/didn't do, and are entirely unaccustomed to being held accountable by their customers, that they became antagonistic, evasive, and threatening.

They want legal fees and whatever amount they want, which their attorney has still not declared, except to reference the contested "estimate". I want them to acknowledge their errors, and in return, walk away from this and never talk to me again. I will eat what their negligence caused me in effort to gain the emotional trauma relief of putting them behind us. Now, rambling...
Welcome and thank you for your question!

I am sorry to learn of the circumstances you've described. So that I may better assist, please clarify: what is your actual question that you'd like assistance with? What information are you seeking from JustAnswer?

~~ J.B.
Customer: replied 4 years ago.

Ha... Well, alas that's likely why I'm stumped, as I can't quite define where to focus..


I want to address their counsel, and I don't know where to focus first.


My hope is to convince their counsel to advise them to withdraw.


I need assistance in determining whether I should focus on declaring "tort" damages (somehow assigning asking amounts $$), and push this as a negotiating angle.


I also want to know how I can categorize the desire to be compensated for my time doing the plaintiff's job (creating an invoice), as part of those "general damages".


The Breaches of Inferred range from damaging pipe due to negligent actions taken by the techs, to trespass, to exposure to hazardous materials, negligent collection of materials samples for asbestos testing, misleading of data/omission of facts/data which led to an insufficient claim reward by the insurance company, other, and outright leaving us with a disaster on our hands, for which they had been hired to remedy.


In short, aside from legal fees, they declare we owe them $11,5k based on a mutually agreed upon errant estimate.


I went through everything and legitimately, they're owed, by their rates, $4k for the work they did.


They damaged real property to the tune of $1800


I asked for an additional $6k in consideration for me doing their job for them. My time, energy...


I then stated that, if they would agree to withdraw their complaint, I would withdraw our counterclaim (which would include the $1800 + $6k) and we'd walk away, both, and drop this for good. However, the way I have stated it is insufficient on legal grounds for their counsel to properly advise them to withdraw, it's not "legal" enough, it's too "principle". He's eluded to this...

Customer: replied 4 years ago.

ADditionally, we had our offer reviewed by a local attorney, but discovered after the fact he has no experience in litigation.


His remark was that our offer, with all its evidence, was legally acceptable, reasonable, and in his opinion, solid. However, this doesn't seem to be the case. I get the sense that the plaintiff's counsel is almost leading us to give him more "law" to do something with... as he is obviously aware we are representing pro se.

Thank you. I will reply in a short fashion to encourage focus.

As a general matter, tort damages are not available in breach of contract lawsuits.

Separately, the law does not recognize the right for you to be compensated for the time you've spent on litigation. I know that seems to be very unfair; however, that's the frank reality of things.

So, now knowing that tort damages are not available and that there's no legal authority to be paid for your time, what additional information do you seek from JustAnswer?

~~ J.B.
Customer: replied 4 years ago.

I have reviewed cases where the judge has awarded damages for pro se fees (not federal, but other courts).


I would like an angle that I can present that my time to generate the invoice (their responsibility) has nothing to do with the litigation, as this was something we discussed and were attempting to generate successfully before there was a complaint filed, and due to their refusal to redraft and/or provide necessary documentation/notes/images/etc., in spite of agreeing to do so, we were unable to succeed. They stopped communications.


Further, if this angle is not feasible, I'd like to consider perhaps declaring consequential damages (to include the real property damage, as well as loss of use of property - not returned to pre-disaster state, for which they'd been hired for, in a timely manner), or whatever angle I might have.


As we filed the counterclaim indicating our desire for "damages" consideration (but didn't declare what sort). Perhaps viewing under the "breach of contract - duty" angle... given the circumstances.


I do not intend to pay these people for work they didn't do, damages they caused, grief they left us in, their negligence, and the fact remains there still is NO BILL, no collection effort, and no late invoice even, as there is no invoice..


I need this to go away so I can heal emotionally from the trauma of all of it, including them invading my home and not leaving when instructed to do so; I fear them.


If there is a judgement based on anything but a legal game of gotchya, this will be dismissed.... don't suppose this will happen in our just system, but maybe.

Thank you. I understand your great frustration over all of this. Someone took great advantage of your trust and good will. You seem to be seeking two outcomes, however, that conflict with each other: pursue different angles to try to prolong the case but you want the case over with. I'm not sure which way to go with this.

Would you prefer to work with an expert who will give you the answer you want to hear or do you prefer to receive candid feedback?
Customer: replied 4 years ago.

I understand, and you're correct. I want an answer to make this cease, to cause them to drop the suit. I don't care if I get any money I want to move on, and not remit anything further to them. They've already robbed me enough. I need whatever solution I might have to attempt to convince their side to withdraw.


Barring that... to convince the judge (rural, and already made it evident he is favoring the plaintiff).



Another possibility, though remote... They didn't present their contract to me, they only presented to my spouse. They have sued us both, independently.

The tech didn't present to me because he knew, based on our conversations, that I'd never sign it. They presented to do work in the evening, and then insisted we had to sign the contract the following day, or we'd have a serious problem on our hands..


They intimidated my husband, having already installed their equipment, etc, knowing we live in an area of very limited professional resource/services, and knowing we had a massive flood, effecting 1/3 of our home, while temperatures outside were -30 (not exaggerating), which effected our ability to live/stay in our home. It was signed under duress, and not before work began, but presented the next under demand - we had no choice, they'd already begun... they'd pull out and leave us and not assist further logistically or with the insurance claim/estimate side of things, if we didn't sign, if HE didn't sign. They still have no signed contract from me, but I suppose they could infer my cooperation...

Why don't you just ask for a jury trial, make your case to the jury, and trust that they'll see through the lies and make the right decision?

Why the fear of going to trial?
Customer: replied 4 years ago.

Cost: I don't have endless resources to throw at this (they're all wrapped up in repairing my home, still), and I would rather not be ruined, and as I have little faith in the system, or the ruling entities in our region...


Intimidated: I've never done this before... cannot afford representation, even if I won and they were ordered somehow to pay for it, that is a great risk.


Third, emotionally, it's left me a wreck, and trying to think straight enough to present all the instances to which they were negligent, harmful, or simply get the confusion straightened out (like, the fact that there remains no invoice they haven't openly acknowledged as errant)... I don't have any confidence that their attorney won't talk circles and just pull one legal loop after another.


Finally, I don't knew if I have already surpassed my option to request a jury trial, since I didn't do that initially??

It is definitely harder to navigate when you choose to represent yourself. Have you considered going to mediation and trying to resolve the case that way?
Customer: replied 4 years ago.

I have, but do not know how to request... I presented this idea in a pre-trial conference between us, the judge, and their counsel. It wasn't refused, but not something their side did anything with.

Customer: replied 4 years ago.

At what point in the process have I lost my option to request a jury? Which means even more expense..

Are you willing to share the cost of a mediator with opposing counsel? I can't tell you how much it will cost because it's so different in each court/jurisdiction. Are you even willing to consider splitting the cost?
Customer: replied 4 years ago.

Possibly, but not likely. I feel as though they have wronged us so extensively, that the wound they created, and the salt they now smugly rub in it... I'm not sure I can rationalize giving anything more, but maybe we should.


I don't know how to go about obtaining mediation locally.... we are in a very isolated area - very few services. I think it would have to be virtual meetings/conference calls/etc..

Mediation works best when everyone is in the same room. When is your next court date schedule and what is it for?
Customer: replied 4 years ago.

Trial... Mid May.

Customer: replied 4 years ago.

Seeing these people in person may trigger a panic attack... I am trying to avoid this too.


Unfortunately, it's really a mess... I should have pressed them when they ceased communications a long time ago I suppose, but I feared them as they'd already proven a threat to my safety by sneaking into my house, and then refusing to leave when ordered to do so.


I didn't call the police at the time because I was focused on keeping things flat and safe, not to provoke, for me and my 3 year old who was present. I just played their game until they were happy they'd completed their desires (violated me) sufficiently, and finally left.

Customer: replied 4 years ago.

I think I would like the possibility of a jury trial... but I am scared of what will be viewed as inadmissible, because whether or not it has any impact in reality, there's a chance legally it would be barred. And I'm swimming in a sea of unknown, with my financial future in the balance, not to mention mental health.

Thank you. So, given the timing of things, your options are very limited.

What are your options right now? You have two of them. What are they?
Customer: replied 4 years ago.

Continue with the trial as set.

Continue trying to persuade the plaintiff's counsel to advise withdrawal.


How do I determine whether I can ask for a jury trial?

From the facts you've described, because you're on the eve of trial, too much time has passed to now ask for a jury trial. A jury demand is usually filed when you submit your original answer to the lawsuit.

You are half-correct on your options.

Your options are to go to trial. Or, pick up the phone and call opposing counsel and see if they'd be interested in trying mediation to resolve the case. If the attorney says "yes," great. Work with him to set it up. If the attorney says "no," then that means there's only one option: prepare for trial.

At trial, don't focus on how this ordeal has upset you so much. Keep focused on their breach of contract. Keep the court focused on that.

My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back. I am happy to address follow-up questions. Thank you for your business!

~~ J.B.
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~~ J.B.
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