Property Owner's Responsibilities to Visitors

Some owners of property may have special duties of care imposed on them based upon their unique use of the premises. For instance, a doctor knows that his office will be used by people who are ill, are infirm, or are elderly - therefore, that doctor has a higher duty to inspect his premises and to warn of hazards. The owner of a gas station knows that there is a good possibility of oil and grease falling onto the areas around the gas pumps and the service bays - therefore, he has a higher duty to inspect for and warn of those hazards.

How often do you need to inspect your property? That depends on the type of property and it's use. For instance, a grocery store or restaurant know that their building is used by many people throughout the day. They also know that things get easily spilled on the floor - somebody spills their coffee in the restaurant or somebody in the store drops a bottle of liquid detergent. In those cases, the inspections should be frequent and complete. In other cases, you might own a shed at the back of your property and nobody goes out there for months at a time - your duty to inspect is much lower than the restaurants.

Also, there may be city or county laws that require you to do certain things. For instance, while there is not any such ordinance in Heber City or Wasatch County, Utah, where I live, a neighboring city requires that you clean your sidewalks 24 hours after the snow stops falling from a snowstorm.

Landlords and tenants have different duties, depending upon who controls the premises. For instance, in an apartment building, the landlord has the duty to maintain the common areas - stairways, hallways, playgrounds - that are open to all tenants. In that same apartment building, the tenant has the duty to maintain their own individual apartments and to inspect, repair and warn of hazards in their apartments.

Does the person using the premises have a duty to prevent themselves from being hurt? Yes, they do. If you are walking on a sidewalk after a snowstorm, it is reasonable to expect that you shouldn’t be wearing flat soled slippers. If you see a spill of liquid on the floor of a store, should you walk around the spill? Yes, you probably should. If you see a bar of soap on the floor when you pass by and then walk down that same aisle and step on the soap, there is a reasonable argument that you were at fault for falling on a hazardous condition that you knew existed.

Everyone knows that you can’t keep your floors or sidewalks squeaky clean all the time. That is why the law uses the reasonableness standard - is it reasonable to think that a grocery store will inspect it’s aisles once an hour? Yes it is, considering the number of people who use the store and the number of employees that the store has to inspect the premises. Is it reasonable to think that a homeowner has to get every piece of ice or snow off of their sidewalk - probably not, considering that they should have already cleared a reasonably wide and clear path through the snow.

The bottom line is, as in most of life, the Golden Rule. Would you want other people to maintain their premises in the same condition that you keep yours? If not, then you probably should inspect more often and maintain them in a better condition.

This article has briefly discussed general principals of law. Competent counsel should be consulted when evaluating your factual circumstances.

How To Decide What The Contract Means - the secondary rules of contract interpretation

We earlier reviewed the primary rules for deciding what language in a contract means. Now let's review the secondary rules of contract interpretation.

Rule 1: Obvious mistakes in writing, grammar or punctuation will be corrected. For instance, if words are switched or left out, or the punctuation is wrong, the court will probably make the corrections necessary to make the meaning clear.

Rule 2: Material added to a contract will be given greater effect than the printed matter. Under this rule, an added typewritten or handwritten paragraph will rule over the pre-printed material. This rule assumes that typewritten or handwritten language more clearly reflects the intention of the parties than does the pre-printed language. However, if the contract can be read in such a way that the printed language is consistent with the added language, both are given effect.

Rule 3: Sometimes called the “Main Purpose Doctrine,” this rule provides that the court, will interpret the contract so that it will carry out the intention of the parties, when a contrary interpretation would make it clearly wrong or inconsistent. For example, if a small paragraph in the contract conflicts with the obvious main purpose of the contract, if necessary it may be ignored or changed to carry out the main purpose of the agreement.

Rule 4: The language of the contract will be interpreted, if possible, so that it shall be effective and reasonable. For example, a contractor was required to deliver certain material according to a delivery schedule specified in the contract. There was a clause which stated that the contractor would be reimbursed for the cost of the material at the market price as of the date of delivery. The contractor delivered the material after the date required by contract schedule, without showing a reasonable excuse for the delay. The contractor then claimed he was entitled to the price of the material on the delivery date (which was substantially higher than it was on the day he was supposed to have delivered the material). The Court held that the contractor’s interpretation was unreasonable and that the clause should not be read in such a way as to permit the contractor to “reap a financial benefit from his own unexcused delay.”

Rule 5: Language or contract documents will be interpreted most strongly against the drafter. It should be noted that this rule is usually only used if the other rules fail to clear up vague areas in the documents.

Rule 6: A reasonable interpretation given by the parties themselves will be favored. When the contract is ambiguous, the parties’ actions will be given great weight in determining the meaning of the language.

Rule 7: Prior negotiations, agreements, or other contracts, cannot be relied upon to vary, contradict or add to the terms of the contract. This is commonly called the “parole evidence rule.” While the circumstances under which an agreement was signed may always be taken into account (see prior article, Rule 3), such circumstances, previous negotiations or prior dealings, cannot be considered if they add to or vary the words used in the agreement.

While this article has hopefully provided some general understanding and information on contracts, it does not constitute legal advice. Competent legal counsel should be consulted whenever interpreting, reviewing, or drafting any legally binding document.

A Land Owner's Responsibility for Site Conditions

Slip and fall accidents are common. Over three million injury producing fall accidents occur each year, resulting in about 15,000 fatalities. Most fall accidents are preventable, since the conditions that caused the accidents are often the result of the negligence of the property owner or the person in possession of the property. While we will be using the term “owner” throughout the next two articles, it is important to understand that if you are renting or leasing a building or land, you are as responsible for the maintenance of the area that you lease as is the owner.

Historically, rights and duties in slip and fall cases focus on the owners and occupiers of the land. The reasoning is that the owner and/or occupier of the land is in the best position to control the property to prevent harm to others.

The landowner has a duty to ensure that the se of the property causes no unreasonable risk of harm to others on the land or crossing it. The landowner is required to exercise reason- able care with regard to activities on the land, the erection of buildings or structures on the land, and maintaining the land in a condition so that any dangerous conditions on the land are not unreasonable. The owner is also under an affirmative duty to take reasonable steps to inspect the premises for dangerous conditions and to keep the premises in repair.

However, the owner of the land is not the insurer of all circumstances which might arise on the property, nor is the owner liable where they can show that they have taken reasonable steps in the use or maintenance of the property.

Generally, the owner of the land is not liable for injuries caused by natural conditions on the land however, if the premises are altered such that their condition is no longer considered to be natural, then the owner can be found liable for injuries.

The main test in any lawsuit involving a slip and fall is to determine whether the land- owner, in managing or using the property, acted reasonably in view of the probability of injury to others.

In other words, the duty of ordinary care is owed to all persons by the owner of the land. Again, the owner of the land must use reasonable care to protect the user, including an affirmative duty to inspect, repair and warn of a dangerous condition. However, the duty to repair and warn is dependent upon the possessor’s actual or constructive knowledge of a dangerous condition.

Actual knowledge is, obviously, where you actually knew that a dangerous condition existed but didn’t do enough to repair the condition or to warn of the conditions existence like liquid soap that’s spilled on the grocer’s aisle or oil spilled at the entrance to the gas stations office and an employee sees it a few minutes later and doesn’t clean it up or place a warning sign.

Constructive knowledge is a condition that has existed for a period of time long enough that you should have known that it existed - like a hole in your deck that’s been there for six months or ice still on your sidewalk a week after a snowstorm.

This article has briefly discussed general principals of law. Competent counsel should be consulted when evaluating your factual circumstances.

Are You Entitled To Overtime Pay?

Many employers and employees believe that since employees are salaried, they are exempt from overtime pay requirements. Many employees are even proud of being “on salary”, while others will realize it is used as an opportunity to be worked more than 40 hours a week without being paid at a higher rate. The belief that salaried people are not entitled to overtime is a trap for employers.

The Fair Labor Standards Act (FLSA) requires that if employees who are covered, work more than 40 hours during a 7 day period, they are entitled to be paid one and one-half times their regular hourly pay rate. The major types of employees that are not covered include executive, professional, administrative, professional and outside sales.

If employees are working more than 40 hours during a 7 day period, they may be entitled to potentially large amounts for unpaid overtime pay, under certain circum- stances up to 3 years of unpaid overtime, and penalties against their employer. Over- time may also be available to those who work on a piece or flat rate basis.

The need to pay overtime is not determined by whether or not the employee is salaried, but rather by the actual duties performed by the employee. Should the Depart- ment of Labor investigate, they will interview employees to find out what type of work they perform, who they supervise, etc. The duties performed by the employee will determine whether or not the employee is covered by the overtime requirements.

Just as there are employees who are entitled to overtime but not receiving it, there are employees who are receiving overtime who are not entitled to it under the law. Under either situation, it is important to know how to comply with the FLSA.

It is very costly for employers who wrongfully decide that an employee is not entitled to overtime pay. The overtime requirements may be enforced by the Department of Labor or by the individual, filing a suit either in state or federal court.

This article is intended for general information purposes only. It does not constitute legal advice; competent legal counsel should be consulted if you have questions con- cerning your legal right and obligations.

Utah's Mechanic's Lien and Related Statutes

Utah Code Annotated §38-1-3–Those entitled to lien – What may be attached.

□ A contractor, subcontractor, and all persons performing any services or furnishing or renting any materials or equipment used in the construction, alteration, or improvement of any building or structure or improvement to any premises in any manner shall have a lien upon the property for the value of the service rendered, labor performed, or materials or equipment furnished or rented.

Utah Code Annotated §38-1-7 –Notice of claim–Contents–Recording–Service on owner of property

□ A lien claimant must file a lien within 90 days from the date of final completion of the original contract. An “original contract” is defined as a contract between an original contractor and the owner of real property, but not a contract between an owner-builder and another person. An “original contract” exists between an owner-builder and itself. ** See filing deadline in Utah Code Annotated §38-1-33 (Notice of Completion).

□ An “owner-builder” is defined as an owner of real property who obtains a building permit for work on that property that will consist of more than one contract between the owner and any other person.

- This is true now for both residential and commercial projects.
- Final Completion is defined as (in order of priority):
• the date of issuance of the certificate of occupancy;
• the date of the final inspection; or
• the date upon which all substantial work is completed.

□ The Notice of Lien requires:

- the name of the reputed owner, if known, or the record owner;
- the name of the person or entity who hired the lien claimant;
- the first and last day of work or when services were performed or when materials were furnished;
- a description of the property, sufficient for identification;
- the name, address, and phone number of the lien claimant;
- the amount of the lien claim;
- a notarized signature of the lien claimant or claimant’s representative; and
- the proper lien recovery fund notification if the lien is recorded against a residence.

□ After the lien is recorded, a copy of it must be delivered or sent via certified mail to the reputed or record owner of the property within 30 days.

Utah Code Annotated §38-1-11–Enforcement–Time for–Lis pendens–Action for debt not affected–Instructions and form affidavit and motion.

□ In order to enforce the lien and foreclose upon it, a lien claimant must:

- file an action to foreclose on a residence within 180 from the date the lien is recorded, regardless of whether the project is a residential or commercial project.

- A lis pendens must be filed with the county recorder’s office within 180 days from the date the lien is recorded, as well.


□ If the project is a residence, when the Complaint is served on the property owner, the claimant must include instructions to the owner relating to the owner’s rights under the Utah Residence Lien Restriction and Lien Recovery Fund Act, and, a form affidavit to allow the owner to specify the grounds upon which he or she may exercise available rights under the Utah Residence Lien Restriction and Lien Recovery Fund Act.

Utah Code Annotated §38-1-27– State Construction Registry (“SCR”)

□ This statute creates an online registry which is now the central repository for Notices of Commencements, Preliminary Notices, and Notices of Completion. These notices are filed online in this registry. The website is http://www.utah.gov/cnr/. The party must create an account with SCR and pay the appropriate fees, then enter the required information in the appropriate fields.

Utah Code Annotated §38-1-28–Notice of release of lien and substitution of alternate security. (Lien Release Bond)

□ Must file this within 90 days after service of a summons and lien foreclosure Complaint.
- 150% of amount if lien claim is for $25,000.00 or more,
- 175% of amount if lien claim is $15,000.00 to $24,999.99,
- 200% of amount if lien claim is for less than $15,000.00

Utah Code Annotated §38-1-31–Building permit–Construction–Notice registry–Notice of commencement of work

□ Where building permit is issued to an original contractor or an owner-builder, the local government entity shall input the building permit information creating a Notice of Commencement within 15 days of the issuance of the building permit.

□ Where a building permit is not issued, the original contractor or owner-builder may file a notice of commencement with the database within 15 days after the commencement of physical construction work on the project site.

□ An owner or an original contractor may file a notice of commencement within 15 days of physical work being begun on the project.

□ If a notice of commencement is not filed within the time set forth, preliminary notices are not necessary to preserve the lien rights.

Utah Code Annotated §38-1-32–Preliminary notice – Subcontractor or supplier.

□ Except for a person who has a contract with an owner or owner-builder, any person who performs work on a project or supplies material shall file a preliminary notice with the State Construction Registry within the later of:

- 20 days after commencement of its own work or supplying materials, or
- 20 days after the filing of a notice of commencement.

□ If a subcontractor or supplier does not file a preliminary notice within 20 days after its first work or supplying or materials, it may still file a preliminary notice, however the preliminary notice becomes effective 5 days after the date which it is filed.

□ If a person who is required to file a preliminary notice fails to file the preliminary notice, that person may not hold a valid lien.

Utah Code Annotated §38-1-33– Notice of completion.

□ An owner, original contractor, lender, surety, or title company may file a notice of completion with the State Construction Registry.

- **Notwithstanding the time filing requirements in Utah Code Annotated §38-1-7, a person claiming a lien shall file the notice of claim of lien within:

- 90 days after the filing of a notice of completion, or
- 180 days after final completion, if no notice of completion is filed under this section.

□ If a notice of completion is filed, then a subcontractor or supplier must file its preliminary notice within 10 days of the date of the filing of the notice of completion.

*** THE STATE CONSTRUCTION REGISTRY BECAME EFFECTIVE FOR ALL COMMERCIAL PROJECTS ON MAY 1, 2005.***

*** THE STATE CONSTRUCTION REGISTRY BECAME EFFECTIVE FOR ALL RESIDENTIAL PROJECTS ON NOVEMBER 1, 2005.***

By Christopher Hill
Chris is an associate with Bostwick & Price, P.C., and his practice focuses on assisting the construction industry.

Summary of Law re Bond Claims in Utah

Bond Law re private projects:

Utah Code Annotated §14-2-1--Definitions–Payment bond required–Right of action–Attorneys’ fees

□ A payment bond is required on all commercial projects exceeding $50,000.00. No payment bond is required on residential projects.

□ An action must be brought under this section within one (1) year of the last day of work or when the last day materials were supplied.

Utah Code Annotated §14-2-2--Failure of owner to obtain payment bond–Liability

□ An owner who fails to obtain a payment bond under §14-2-1 is liable. The action must be brought within 1 year of the last day of work or the last day materials were supplied.

Utah Code Annotated §14-2-5--Preliminary notice requirement.

□ Any person furnishing labor, service, equipment and/or materials for which a payment bond claim may be made shall provide a preliminary notice as prescribed in §38-1-32.

□ This does not apply to a person performing labor for wages or if a notice of commencement has not been filed.

By Christopher Hill
Chris is an associate with Bostwick & Price, P.C., and his practice focuses on assisting the construction industry.

Primary Rules of Contract Interpretation

A contract represents the bargain between parties involved in a transaction. It may be enforceable whether it is oral, or written. Contract language needs to be chosen carefully and the documents should be well written in order to avoid confusion and misunderstandings.

Language is not an exact science. It is likely that any significant contract will require some interpretation, no matter how good it looked when it was signed. Over the years, rules of contract interpretation have been developed by laws and court decisions, which help us understand the meaning and requirements of the contract.

A fundamental rule of contract interpretation is that words mean what they would normally mean to a reasonably intelligent person who is familiar with this typw of transaction. However you cannot consider spoken statements by the parties trying to say what they intended the agreement to mean.

While this is the fundamental rule for interpreting contracts. It usually is not enough to resolve disputes. Therefore, certain additional rules of contract interpretations have been developed.

These rules are generally divided into two categories: 1) primary rules of interpretation, which are always applicable whether the language is clear or not; and 2) secondary rules, which are used only after primary rules have been applied and the meaning is still not clear.

PRIMARY RULES: Rule one: Words are to be given their normal meaning unless circumstances show that a special meaning should be attached to the words. Exception: particular customs or usage may vary the normal meanings of words. Additionally, technical words given their technical meanings, unless the context of the words of local usage would make the word mean something different. For example, a painting contract that says “all interior surfaces” are to be painted, would not mean literally all interior surfaces. Otherwise light fixtures, door knobs, window panes, etc. would need to be painted.

Rule Two: The contract is interpreted and read as a whole, and all writings forming a part of the same transaction are read together. A contract should receive the interpretation which most accurately carries out the intention of the parties.

Rule Three: All circumstances, the parties, the purpose of the contract, the location of the work, etc., all circumstances important to the making of the contract may always be taken into consideration. Under this rule the Court will try to determine the intentions of the parties can by reading the contract, by referring to the negotiations, and other circumstances that were important when the contract was agreed.

The secondary rules for interpreting a contract will be reviewed in a later article.

This article is intended for general information purposes only. It does not constitute legal advice; competent legal counsel can be of invaluable assistance when interpreting, reviewing, or drafting any legally binding agreement.

Harassment by bill collectors is illegal!

When Congress enacted the Fair Debt Collection Practices Act it found “there is abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt (bill) collectors.”

Abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. As a result, Congress clamped down and provided debtors, those who owe bills, some significant protection from bill collectors. The rules apply to all of those who collect bills for someone other than themselves, including lawyers, when the bills were incurred for personal, family, or household purposes.

A bill collector cannot tell anyone besides the debtor that the debtor owes money, cannot send postcards to the debtor, and must deal with an attorney if the debtor has one. The bill collector cannot call before 8 a.m. or after 9 p.m., and may not call the debtor at work if the employer prohibits the calls. If the debtor writes a letter to the bill collector saying that he no longer wants to be contacted, the bill collector must stop calling, writing or otherwise contacting the debtor, except to tell them that they are pursuing their legal options. The bill collector may not do anything, the result of which is to harass or abuse. They cannot use obscene or profane language, nor threaten the person, reputation or property of the debtor. They cannot call, let the phone ring, then hang up; they cannot advertise a list of “deadbeats”. Bill collectors cannot make any false or misleading statements. They cannot say they are someone they are not that they are affiliated with government, that they will take actions that they legally cannot do, and cannot misrepresent the character, amount, or legal status of any debt. They also cannot say or imply that failure to pay will result in imprisonment. The Act further prohibits “unfair” practices’. Collectors cannot attempt to collect any amount unless it is allowed by the agreement creating the debt or is permitted by law. Collectors cannot solicit then deposit early, post dated checks.

It is very important to note that within 5 days of first contact, the bill collector must provide the debtor a statement that unless the debtor disputes the debt or any portion thereof within thirty days after receipt of the notice, the debt will be assumed to be valid by the bill collector, and that if disputed, no further collection efforts may take place until the bill the person to whom the debt is owed.

Any suit brought against a debtor must be brought in the area where the contract was signed or where the debtor lives. If the act is violated, the debtor can sue for any actual damages, plus additional damages up to $1,000, and attorneys fees and costs. The statute is being interpreted against bill collectors, and debtors are receiving money for even minor errors by the bill collectors.

The only escape for those who violate the act is to show that the violation was accidental and that they have procedures in place to avoid Procedures in place to avoid that type of error.


This article is intended for general information purposes only. It does not constitute legal advice; competent legal counsel should be consulted if you have question concerning your legal rights and obligations.

Who Has To Pay?

Sometimes creditors want to know who they can go after to collect a debt. Does a job foreman who orders goods or materials on behalf of the company become personally liable for the bills? Does a secretary who signs company checks become personally liable if a company check bounces? Usually companies and corporations do business through agents. An agent is anyone who is authorized to do business on behalf of another. When an agent is properly authorized, does business within the scope of his authority, and properly signs on behalf of the business, the business is the only party liable. A corporation is forced to use agents as it cannot sign for itself.

If the responsible party to a contract is not made clear, an agent may accidentally make himself a party to a contract. An agent generally does not become liable if the name of the responsible party and the agent’s position is explained. If the agent signs in his own name, adding the work “agent” but not indicating who the responsible party is, there is a presumption that the agent is a party to the contract and may be held liable. If it is a check or other similar instrument, the responsible party cannot be liable unless their name appears on it. There are different ways an agent can designate his position when signing on behalf of a responsible party and thereby avoiding problems later. Here are a couple different ways an agent can sign:

X Y Z Cabinets, Inc.
/S/
By John Doe, Secretary

OR

By: /S/, President
For X Y Z Cabinets, Inc.

This us just two of the ways to sign that should help reduce personal liability for the individual signing on behalf of the company.

This discussion is also important for those who provide services to others. Make sure you know who is authorized to sign on behalf of the business or person you are doing business with, and if possible obtain personal guarantees on business accounts. If you cannot tell who signed or who they represent, you may be able to pursue and collect the bill from the person who signs the credit application, the invoice, or other shipping document. Don’t overlook what may be a very valuable option should the principal refuse or fail to pay the debt. Whether signing on behalf of another person or trying to collect bills, do not overlook the importance of checking who and how they signed the important documents.

This article is intended for general information purposes only. It does not constitute legal advice; thus, the reader should consult legal counsel to determine how laws apply to specific situations. Your attorney will keep all information given confidential.

What is a Contract?

A contract is entered into when parties make a deal. When do they have a deal? That is where the fun begins.

Lawyers will tell you that there is a contract when one party makes an “offer”, the other “accepts”, that there must be a “meeting of the minds”, and there must be “consideration” given by the parties.

While that may help lawyers, most people (and even many lawyers) have a hard time using that definition. A contract represents the bargain between the parties involved in any transaction. It may be enforced whether it is oral (spoken), or written.

While an enforceable contract can be oral (spoken), the difficulty with an oral contract is figuring out what was part of the deal and what the parties meant when they made the deal. For example, how many have been advised by your teenager that you agreed to let them take the car for one evening? Your teen remembers you agreeing to let them take the car, while you remember them agreeing to wash the car, fill it with gas, and then they would be allowed to use the car. Even though you may or may not remember the terms of the deal the same way your child does, this is an example of an oral contract. Such are the problems with oral contracts. Each party, usually honestly, remembers what was most important to them about the deal and has a tendency to forget what was less important to them. Then when a dispute arises, all parties believe the other is lying and then they ask a Judge to help them decide what they now cannot agree upon.

I was recently contacted by a client who wanted some help in small claims court. It seems that my client had agreed to perform labor for a general contractor on a home that was being built. They had worked together before, so my client was sure there would not be any problem. All went well until the project was finished and my client did not get paid what he thought he was owed. My client specifically remembers agreeing to do the work for $9 a foot (a bargain he says, it should have been $10); the general contractor specifically remembers it was $7 a foot. A major point of contention. There was nothing in writing. My client sued for the difference between $7 and $9 per foot: the general contractor sued my client for cleaning up garbage on the job and for some other miscellaneous items. After carefully listening to the parties hotly dispute the issues for over an hour, the Judge told the Parties that he could not figure out what the parties had or should have agreed before starting the work. After lecturing them on how to do business, the Judge ruled against both parties.

It is always better to have contracts written, even if it is just a few notes on the back of a cocktail napkin! Certain contracts are required to be in writing: contracts that take more than a year to perform, and contracts for the sale of goods worth more than $500

For better or worse, there are many other rules that would allow even these types of contracts to be enforced, even if not in writing. For example, if one of the parties does some of the work and the other tries to say that there is no contract because it was supposed to be in writing, the court may decide that even though it was supposed to be in writing since one of the parties actually did some of the work, there is a binding contract.

In order to avoid problems, contracts should be in writing. The contract language should be carefully chosen and the contract well written in order to avoid confusion and misunderstandings. That does not mean contract must be long and use hard to understand words; just clear and cover important issues. Since language is not an exact science, it is likely that any contract will ultimately require some interpretation. The job of the person drafting the contract is to make it as clear as possible.

Over the years, rules of contract interpretation have been developed - both by statutes and through court decisions - which assist in determining the meaning and requirements of contract language. A later article will discuss some of those rules of contract interpretation.

This article is intended for general information purposes only. It does not constitute Legal advice: competent legal counsel can be of invaluable assistance when interpreting, reviewing, or drafting any legally binding agreement.

Small Claims Court - the Hearing

In order to win in small claims, to obtain a judgment, the complaining party needs to prove two things: 1) that the other party is the person liable, and 2) the extent or amount of the damage. While the formal rules of evidence and procedure apply in small court proceedings, they are relaxed. You need to produce documents and witnesses to prove your case. It is a good idea to have 3 copes of anything you want to show the Judge; 1 for you, 1 for the judge, and 1 for the opposing party.

The burden of proving the case rests upon the person making the presentation. For example, in order for the Plaintiff to win against the Defendant, Plaintiff must prove its case by a majority of the evidence. Which means if it is on e person’s word against another’s without supporting documents or witnesses, the Plaintiff will likely lose, because it is the Plaintiff’s burden to prove its case by majority of the evidence.

The accuracy of testimony and documents is very important in determining the outcome of the case. A disinterested witness who is knowledgeable about the dispute is also very valuable. For example, if you have a problem with repairs to your car, it is a good idea to bring in a mechanic that can testify as to why the repairs did not work, were unnecessary, etc.

Subpoenas to force a witness to appear can be obtained from the court clerk. Witnesses are entitled to an appearance fee as set by the clerk. Witnesses are entitled to an appearance fee as set by the clerk. These funds should be given to the process server or deposited with the court for delivery to the witness.

In preparing for the trial it is a good idea to outline your presentation. When at court and it is time to speak, simply state your claim. The parties should address the Judge and not each other. Plaintiffs begin by telling their side of the story and presenting any witnesses, photographs and documents that will help prove their case. Defendants then have the opportunity to ask questions for those who testify for the Plaintiff. Defendants then present their side of the case and the Plaintiff may then ask questions. The Judge will usually ask questions throughout the proceeding and most generally make a decision at the end of the presentations.

If one party does not appear, the Judge will generally rule in favor of the appearing party. The party that appeared and won is obligated to mail to the defaulting party a copy of the judgment. The Judgment becomes final unless, within 10 days, the defaulting party appears before the court clerk, explains his absence, and signs an affidavit asking for the default to be set aside.

Either party may appeal within 30 calendar days. The “Appellant” must pay a fee to the Court clerk and file a “notice of appeal”. A new trial will be scheduled before a regular judge in the District Court and the process starts over. Unless there are constitutional issues involved, there is no further appeal. Collection efforts may continue during an appeal unless the losing party files a special bond called a supersedes bond.

While the Court cannot collect a judgment for the successful party, a judgment entitles the successful party to use the court procedures to assist in collection of the amounts due. The court clerk will assist in the filling out of forms, and upon request can provide a description of procedures to collect the money owed. A small claims judgment continues for 8 years unless it is paid. It is the responsibility of the successful party to file a “Satisfaction of Judgment” when the judgment is paid or a “dismissal” if paid prior to judgment.

The small claims procedure is very popular with many people, including small businessman as is witnessed by the volume of cases being heard in Small Claims Court, "Utah’s Peoples Court."

Small Claims - Utah's Peoples' Court

Small Claims Court is one way to resolve disputes and collect amounts under $7,500.00 without the hassle of lawyers and the ususal court proceedings. While serving as a Small Claims Judge, I have observed many problems encountered by the parties in small claims proceedings. In Salt Lake City and Park City, attorneys voluntarily serve as Judges in the evenings in order to allow unlimited filing and court hearings, and to avoid the necessity of the parties taking time off work.

In this and the next article, I will try to outline the process and hopefully, clear up some of the confusion experience by parties in small claims court.

Small Claims Court allows a party to sue another who has not performed or has committed a wrong, even though the amount at issue may not be large enough to justify hiring an attorney. While attorneys are not needed to sue in small claims court and may even be discouraged from attending, attorneys are allowed if claimants want their help.

Most areas in Utah have a small claims court either as part of the District Court of the local Justice of the Peace Court. The whole purpose of the Small Claims Court is to allow the parties in a dispute to resolve it simply and quickly. Small Claims Court is designed to settle problems which do not exceed $7,500.00 exclusive of costs of court. “Costs of court” include the filing fee and the constables fee for serving the Defendant. Interest, lost wages and attorneys fees may be awarded if asked for in the affidavit and the Judge believes they are appropriate.

Small Claims Court may not be used to evict tenants, recover possession of stolen property, enforce an injunction against someone, collect on assigned claims, or collect “special damages” such as for the trouble of going to court.

The court clerk will assist a claimant in filing out the necessary forms. The person or company filing the claim is the “Plaintiff” and the person or company being sued is the “Defendant”. The Plaintiff will need to file the suit in the county where the defendant resides or where the dispute arose. The debt must represent money owed to the Plaintiff.

To start the suit in Small Claims Court, the Plaintiff fills out a Small Claims Affidavit and Order. The Affidavit states why the Defendant owes the Plaintiff money. Plaintiff files the affidavit and order with the Court and is assigned a date and time for a hearing on the matter. The Affidavit and Order setting the trial should be served upon the Defendant at least five days before the trial. A copy of the Affidavit and Order setting the trial are given to the Constable for service upon the Defendant. A party may not be served outside the state.

It is recommended that the Plaintiff contact the constable 24 hours prior to the trial to make suer the Defendant has been served. Defendant may file with the Court a counterclaim against the Plaintiff, or “Interplead” (add on additional Defendant). This must be done at least two days before the trial date. While allowed, these actions by the Defendant are not required and can be raised in a later small claims lawsuit.

While there are instructions on the back of the Small Claims Affidavit and Order, prior to handling a case in small claims court, it is very helpful to talk with the court clerk and observe a small claims court session. This will allow you to be more at ease at the trial and to make a calmer and more relaxed case presentation. You would also be more familiar with the court’s procedures.

Next, I will finish the discussion on small claims court. While this article has briefly discussed some of the basics of small claims, competent counsel can prove invaluable in evaluation and if appropriate, preparing th case for small claims court.

Daily Job Reports - why the Hassle?

Construction claims come in may forms, whether it be delivery problems, weather problems, defective plans or specifications or defective labor or material.

The resolution of construction claims can be some of the more difficult contract disputes. They are factually intensive and are frequently very complicated to unwind. The single best source of information is typically a daily report or daily log.

Reference to properly undated schedule will show the start and finish dates of activities, not only as planned, as billed, but the more detailed important information will hopefully be contained within the daily reports.

It is not expected that a daily report will be typed with proper spelling, etc. But, a daily report should include all basic information to reflect what occurred during a daily work shift.

All to often, daily reports are considered as "damn paperwork" and ignored by the on site job foreman or supervisor. It may be "paperwork" but should be an essential daily job duty. Many contractors have forms printed but then fail to advise their supervisor on how to fill them out. Others opt for a less time consuming, yet equally inaccurate method of retroactively filling
them in. At the end of the week , they will go back and fill in prior days activities. A daily report may be the most important document on the project. It should reflect telephone communications, on site visits, as well as project performance.

A few years ago I was involved in a case where at the end of nearly two year long project, the contractor filed a lawsuit of interference and delay claims against the owner. On a "total cost analysis" the claim appeared to be between one and one half million dollars. Unfortunately, due to a dearth of records, including daily reports and updated schedules, the claim was difficult at best to document. Two weeks after the case was resolved, my client called and told me they had found the missing schedules in a shed in a neighboring state!

The cost of having a person on the site to do nothing but prepare daily reports, update the schedule, and prepare supporting correspondence for all communications between the contractor and owner would have, in my opinion, paid for itself ten-fold. Of course, you never know when a claim situation will arise and it may not make good sense to hire a individual just to document a claim, accordingly the daily report is crucial. It can show a history of the entire project. Hopefully, it would be used for management of the current project and for planning the next one. It would include keeping track of the weather, manpower, equipment usage, work accomplished, inspections, change orders, accidents, deliveries of materials to the site, etc.

Armed with this type of information, future estimates and bidding would become more accurate. Techniques or methods which are used but do not work or are not used but thought would work, could also be included in a daily report.

The Difficulty of Construction Law

I have either worked construction or worked with contractors as their lawyer for over 30 years. In good times many contractors are too busy working to worry about proper documentation for their project; and in bad times they want to collect their outstanding accounts receivable. Unfortunately, to quote from the old song, Love and Marriage, "ya can't have one without the other."

Many years ago at a "Construction Law" seminar the speaker asked the audience, "and where do we get our clients?" From the back of the room I quipped, "Bankruptcy Court!" While those within earshot laughed, too often it is the truth. Many, many times I have had clients come to me with very legitimate claims, but without the resources to pursue their claims. What can we do?

Even lawyers need to get paid and many will not take construction litigation on any basis other than on their hourly rate. Many times lawyers can't take the construction case on a contingency basis - they need to pay the bills and construction cases are nearly always messy and difficult. Sometimes it is possible, even preferable for both parties, to negotiate a "hybred" fee arrangement where by the law firm reduces their hourly rates in exchange for a percentage of the winning. By such an agreement, the construction case becomes more affordable for the client and the attorney, as the say, "has some skin in the game."

PLAYING A STELLAR GAME OF HIDE AND SEEK--LOCATING ASSETS

Two of the best sources for collection of judgments are the debtor's employment and the debtor's bank accounts. Often, your client has received one or more payments on account from the debtor. If those payments were made by check, you can garnish the account from which the payment is made. You can also garnish the debtor's wages, if you or your client are aware of where the debtor is employed.
If the debtor is an individual, you generally know where the debtor lives. You should obtain a title report and see if it would be worthwhile to execute against the debtor's home. You can also send a constable to the home. Vehicles and household items of high value (computers, stereos, big screen TV's, etc) can be seized under an appropriate writ of execution to apply against the judgment.
If the judgment debtor is a business, you may know (or your client may be able to find out) to what extent the debtor has accounts receivable that can be garnished. Similarly, if you or your client know where a business debtor stores its equipment and vehicles, you can send a constable to that location with a writ of execution.

Pre-judgment interrogatories generally are not allowed to inquire into the debtor's financial condition or assets. Post-judgment interrogatories generally are not used in Utah. However, in connection with a motion and order in supplemental proceedings, you can require the debtor to appear in court and disclose the nature and extent of the debtor's assets.
As discussed above, in the event the debtor fails to appear in response to an order in supplemental proceedings, the court will issue an order to show cause, requiring the debtor to appear and explain why it shouldnot be held in contempt for failing to obey a Court order to appear.
If the debtor ignores the order to show cause, the court will issue a bench warrant requiring the Debtor be served and either post bail (usually starting at $100) or be arrested and drug before the Court to explain the failure to respond.

LITIGATING ON A SHOESTRING

You may wonder how in the world many of the cases that with legitimate causes of action, but with lower damages, can be economically and efficiency pursued. Lawyers sometimes forget that to the average client, a few hundred dollars in damages is significant, and that a few thousand dollars in damages may be catastrophic. How do lawyers handle those cases, yet not go out of business themselves? I have heard that it is not uncommon for firms of any significant size to refuse to take cases without at least six figure damages.

While not the focus of this article, many pursue their claims in small claims courts. While the amounts and subject areas that may be handled are often limited, you can get a case to trial quickly and efficiently - often within 60-90 days. While some small claims courts may not like or even allow attorneys, most do, and either alone or with the assistance of their attorney, a client can get a case to trial.

Years ago litigation may have been trial by ambush. In theory, we are now more civilized, pursuing discovery and motions to limit the issues and otherwise sorting the wheat from the chaff. The problem with such practice is that it can be quite expensive for the client (or the attorney if taken on a contingency). Regardless of the size of the case, the time and energy (hence money) spent preparing a substantive motion can easily exceed $5,000.00. What if you only have $10,000 or $20,000 of damages in the case you are asked to try?

Thanks in substantial part to Rule 26, of the Federal Rules of Procedure, the substance of which are followed by many if not most states, it is possible to handle, relatively efficiently, cases that might at first glance seem too small to pursue.

Rule 26(f), F.R.C.P. provides that as soon as practicable and at least 21 days prior to the due date of the scheduling order (which per Rule 16(b) F.R.C.P. is within 90 days after the appearance of a defendant or 120 days after service), the parties are to confer to consider the nature and basis of their claims and defenses, the possibilities for a prompt settlement or resolution of the case, and to develop a proposed discovery plan. Unfortunately, the “planning meeting” is often done by telephone, if at all, and a stipulation is put together by one of the parties with the default dates and time periods proscribed by the local rules. The parties’ counsel should, but often do not, take the opportunity to discuss the respective positions of the parties and the merits of the case.

A key requirement of the planning meeting is that the parties provide the initial disclosures as are required by Rule 26(a)(1). The parties are to disclose, without the need for discovery, 1) the identity of everyone likely to have discoverable information; 2) a copy or description of all documents to be used to support that parties claims and defenses; 3) a computation of that party’s damages; and, 4) any insurance policy that may be in place to satisfy part or all of the judgment.

Rule 26(a)(2) requires that experts be disclosed and a report produced. These disclosures must be made, if not otherwise ordered by the Court, within 90 days of trial. If solely intended as rebuttal, it is to be provided within 30 days of the other party’s expert witness disclosure.

Rule 26(a)(3) goes on to require that each party, 1) identify each witness that the party expects to present and those that the party may present at trial; 2) designate those witnesses whose testimony is to be presented by deposition; and, 3) identify each exhibit the party expects to offer and those which the party may offer.

I submit that these required disclosures provide everything necessary to defend or prosecute the case. Have you turned over every stone? No. Have you researched and filed every possible motion? No. Can you zealously assert the client's position under the rules of the adversary system[1] and if necessary try the case? YES! For example, instead of depositions, witnesses may be interviewed, either in person or by telephone.

Of course, such a plan of attack must be discussed with the client at the inception of the representation. It is further recommended that it not only be discussed with the client, but that this plan be put in writing and consented to by the client.

While it is possible that the client may be upset with the result, that is true of every case. I have had more clients upset with the process than I have with the results. Furthermore, you will have provided your client a service that they may not otherwise been able to afford. While we all prefer to win, in one of my earliest trials, I discovered that often what the client really wants, even needs, is the opportunity to be heard - win, lose, or draw. See Litigating on a Shoestring, ABA GP/Solo Law Trends & News

Randy B. Birch, is a partner with Bostwick & Price, P.C., a law firm in Salt Lake City, Utah. He has practiced law for over 20 years and handled trials of cases of all sizes. randy@bostwickprice.com.

---

^[1] Preamble, Model Rules of Professional Conduct.