My friend Geri lived a mile from me and I watched over her house when she vacationed. Often she’d schedule work while she was away, and this time she wanted to replace her fence.
Thanks to hurricanes and moisture, fences have short life spans in the Sunshine State. Fences were a concern for me too, so I researched ways to give fences extra years, a realm of excitement beyond words. The following are the fruits of my labor, otherwise called ‘best practices’:
- Embed posts in concrete.
- Shape the concrete into a dome to run off water away from the post rather than collect moisture around it.
- Don’t install panels at ground level, but elevate them an inch or so above.
- Don't use staples or ordinary nails. Use ring-shank nails to resist winds.
I typed a list of the above and sketched a diagram of setting posts in concrete. These I stapled to the sales proposal given Geri and agreed to the extra charges and signed off. The installer missed their start date, so on her way out of town, Geri asked a neighbor to phone me at work whenever construction commenced.
The First Hint
The neighbor gave me a heads-up at eight the next morning. By the time I arrived, workmen had already set several posts… without concrete. After I explained they were supposed to use cement, a worker with a garden trowel spread dry sandmix around posts.
No, I said, they’re supposed to be set in concrete shaped to aid water runoff. I returned to work leaving them to it.
I flew to Miami and returned the following afternoon. The job had been wrapped minutes before my arrival. Except…
The pickets (paling panels) rested directly on the ground. Grounded palings made wood rot more quickly, wicking moisture from the soil up through the grain.
The crew had removed and reset only the first post in concrete; they hadn’t bothered with the others. Many showed a sprinkling of dry concrete but nearly as many went without.
Now suspicious, I looked closer. On the plus side, they hadn’t used staples but, after pulling one nail, I discovered they’d used ordinary smooth box nails. They company had completed none of the requirements they’d agreed to.
I’d let Geri down. I was so ticked off, I missed the most obvious mistake of all.
“Uh,” said the neighbor. “Why did they install half the fence backwards?”
“Half of the fence is inside out.”
The workmen had installed the left side of the fence facing out and the right side facing inward. Stick with me if you can handle the excitement.
I phoned the fence company and explained what happened. The company owner claimed they’d done all that was required of them.
“I’m not authorizing payment,” I said. “I’ll recommend to the resident she not pay either.”
The owner called me a few names and promised he’d see me in court. And he did. They sued.
I’d never been sued before, so I had a lot of work to do. The first thing I discovered was the company had many suits pending.
In theory in Small Claims Court, each side tells their story and the judge decides. In this case, the company brought in an attorney who sought every legal advantage he could… as he should… which often worked to my disadvantage. I received an education about leading questions and lasting impressions.
We had to submit witness lists to the court. Mine included Geri, the neighbor, my assistant who’d helped prepare the diagram and requirements, and the salesman. I subpoenaed the original sales order with attachments, i.e, the diagram and requirements list.
The company’s list included the salesman, their office clerk, their vice president, three workmen, and a driver– seven witnesses plus the owner.
The courthouse is fond of laying out meeting rooms with tables in a T formation. The owner and his lawyer sat across from Geri and me. The owner opened with a long-winded discussion of his fine, impeccable company. He was a patriotic taxpayer who unfortunately wasn’t used to dealing with the squirrelly riffraff likes of us.
He spoke so long, the judge tapped his watch and told us only ninety minutes had been allocated to the hearing. Not to be hurried, the man recounted a few anecdotes of scurrilous scum who’d attempted to cheat him. Finally he turned his attention to our case and asked his attorney to take over.
“Your honor, this entire case rests upon a claim by the defense that they gave the salesman special instructions, which my client has never seen. We’re here today to prove such a defense is fictitious and meant to worm one’s way out of paying for services rendered.”
The lawyer did most of the questioning from a prepared list, but the company owner often interrupted to make his own point.
They began by calling the workmen to testify. Only one worker spoke English, so we were dependent upon him to translate.
Yes, he said, they’d installed the fence and yes, it met code. Yes, they treated the post with concrete, just like they were told, but complained the customer (me) wanted perfection, which they weren’t selling.
The company owner asked, “Did this guy here tell you to install half the fence backwards?”
I was stunned. The man lied. I started to open my mouth, then realized I mustn’t.
“Did Mr. Lundin give you a reason?”
“No. He just said do it.”
Finally, it came my turn. I said, “You claim I told you to install it backwards?”
He squirmed but, with his chin jutting out, insisted yes, I had. After such a huge installaltion mistake, I was guessing his job was on the line, and he wasn’t budging.
I said, “Judge, I’d like to question the other workers, but I feel awkward having this guy translate.”
“Try your best,” said the judge.
I asked my question. Their guy seemed to talk five times longer than my question ran, but eventually the guys nodded their heads. They refused to look at Geri or me.
The fence company brought in their office clerk. She said she hadn’t been told to order ring-shank nails.
“Uh, we didn’t order special nails?”
The judge looked at his watch.
“Call your next witness.”
“Wait,” I said. “I have a question. Do you help salesmen calculate their quotations?”
“Yes, of course. I’m the one who does that.”
“After the salesman measured the fence line, he called you for a quote. I was there. He mentioned the type of fence, the concrete, and ring-shank nails.”
“I don’t remember that.”
“I understand you’re a busy woman, but would a recalculation of my quotation reveal the inclusion of ring-shank nails?”
She whitened. Her certainty was shaken.
“Objection!” said the attorney. “Improper examination: These questions aren’t related to direct.”
“Relax counselor. This is Small Claims. I’d like to hear the answer to the question.”
“But what are court rules for if not to be followed?”
The judge sighed.
“All right.” He turned to the witness. “Stick around for further questioning. Perhaps before you return you can work out an answer for Mr. Lundin’s question.”
Finally they put their salesman on the stand. I expect salesmen to lie for a living, but this guy looked distinctly uncomfortable.
The lawyer said, “Did either of the defendants give you special instructions regarding the fence?”
“What do you mean?”
The judge looked at his watch. The salesman tugged his collar.
“Did either defendant ask for anything like nails or concrete?”
“Uh, maybe they mentioned something about concrete.”
“Did they give you written directions? Did they give you diagrams?”
“Um, can I get a drink of water?”
He was sweating profusely. This salesman found it hard to lie. He returned a moment later, barely looking refreshed.
“What was the question again?”
“About a printed list or diagrams?”
“Er, I don’t think so.”
“Can you respond with yes or no.”
“Uh, no. I think. I can’t recall a list. I’ll say no.”
Geri shot me a look. The lawyer held out his hand and the company owner slapped a sheet of paper in it.”
“Is this the sales order?”
“Um, it looks like it, a copy of one.”
“Do you see any attachments?”
“So nothing was stapled together?”
It became my turn to question. If the lawyer hadn’t asked that last question, I might not have noticed a tiny detail.
I said, “Working backwards, why didn’t you bring in the original document as requested?”
The company owner spoke up.
“We don’t keep original documents because it’s too much paperwork to maintain. We scan them into the computer and then retrieve them as necessary.”
“So how can you say nothing was stapled to the sales order?”
The owner leaned back looking very, very, gotcha smug.
“We don’t allow staples in our documents because they won’t feed through our scanner.”
I seized on that like Perry Mason pouncing on the perfidious, perjuring prevaricator he was.
“Then why does your copy clearly show two staple holes?”
When the lawyer had asked his earlier question, my eyes had reactively fallen on the copy. I spotted two small ovals in the corner… their scanner had picked up unmistakable pattern of staple holes.
The attorney held a brief consultation with his client.
“Your honor, our last witness…”
The judge interrupted. “I have an unfortunate announcement. The plaintiff has used nearly four hours in a case scheduled for one and a half. I need to halt proceedings at this point.”
If I knew a little more about the law, I could have asked the judge for a summary judgment. That would have given the judge an opportunity to dismiss the suit on the grounds the plaintiffs failed to prove their case. But I didn’t know. And then the judge blindsided us.
“Worse yet, I’m being reassigned to another court, so I can’t continue this case. You’ll have to try it over again before a new judge from the beginning.”
We were stunned. Some might argue that fell to our advantage, but it had the opposite effect.
First came the neighbor. “I spent four hours cooling my heels for nothing. Don’t ask me to testify and don’t subpoena me. I’m unavailable.”
Then came problems scheduling the rest of us, but a month and a half later we again met in court.
This judge came off brusque and irritable.
He said, “Why am I rehearing this case?”
The attorney started to answer, but the owner cut in.
“We could have been done and out of here, but the defense kept stalling with questions. We’d like to move right along if we could, your honor.”
This time they called only one of their workers. Again he testified I’d demanded he install half the fence backwards.
The judge interrupted.
“Did the fence pass inspection?”
“Yes, your honor.”
The judge frowned at me.
The clerk came in and testified she’d received no requests to order special nails. She also explained about their scanner not accepting documents with either staples or mutilated with staple holes.
While she was available, I tried asking my question: Did calculations show the quotation reflected ring-shank nails and concrete or not. Again the attorney objected and the judge cut me off. I’d have to call her as my witness.
The owner served as their third and final witness. He went on about their fine reputation and how they occasionally encountered scalawags like us. He contended they’d done everything they were contracted to do and then some.
It was my first opportunity to examine him.
“You were asked to bring in the original sales agreement.”
He leaned forward, his beefy face within garlic smelling range of mine.
“As the clerk explained, we don’t keep originals. We scan them in.”
“That’s right. Where is the sales agreement copy?”
He made a show of riffling through a folder.
I gulped. The staple holes were missing.
His lawyer blinked and his lips moved, possibly from his jaw dropping.
Blindsided again and angry, I snapped.
“Where is the copy showing the staple holes?”
“What copy? What staple holes?”
The attorney found something interesting in a distant corner of the room. Adrenalin had me shaking with fury.
“You are lying.”
The judge didn’t have a gavel, but he smacked his hand on his table.
“We’ll have none of that. Do you understand me?”
“You don’t know what he’s done.”
“I don’t care. Either behave or leave the court.”
He held me under a cloud from there on out. The company owner, done with testimony, sat back and figuratively buffed his nails.
At long last, it was the defense’s opportunity to present its case. I called for the company clerk.
“Oh,” said the owner, the picture of innocence. “She returned to the office. Can’t run a company if we’re all gabbing here.”
“You know I want to examine her.”
I turned to the judge. He shrugged. Frustrated, I called for the salesman.
“Oh,” said the owner. “He’s working in Tampa right now.”
“Is that important?”
“Just answer my question.”
“Um, you’d have to call the clerk back and ask her.”
The attorney said, “If you want to question my client, you have to call him as a witness.”
“Fine. I call. My question is– where is the document you produced the last time?”
“This one right here, of course,” said the owner.
“The other showed evidence of staple holes.”
“You’re mistaken. You heard our clerk testify our scanning equipment can’t handle staples or holes.”
The lawyer turned away. I wasn’t sure if he advised keeping the clerk and salesman from testifying, but he gave a distinct impression he hadn’t known his client had swapped documents.
I turned to the judge.
“Am I allowed to question their attorney?”
“No,” he snapped.
“Or the previous judge?”
The judge gave me an I-don’t-believe-you-said-that stare.
“Just asking,” I said.
Without our neighbor who’d witnessed much of the transaction, we were limited to what the lawyer called self-serving testimony.
In wrapping up, the judge took an opportunity to chastise me, saying we were “throwing up dust” because we had no defense. He praised the company for being a fine Florida employer. The owner nodded and said things like this were a cost of doing business.
Since the owner had spoken and with nothing more to lose, I said, “What about the fence installed backwards?”
The judge’s glare would have vaporized anyone less stubborn than me.
“We heard testimony you specifically asked for half the fence to be installed backwards. No reputable business would do so otherwise.”
“That keyword reputable…”
He slapped his hand on the table.
“I find for the plaintiff. Adjourned.”
Geri whispered, “We should leave while he’s in a good mood.”
Win Some, Lose Some
Months later, I bumped into the lawyer.
I said, “Your client lied his rotting ass off.”
“I know,” he said. “That’s why I didn’t ask for attorney’s fees. I refused further work for them. You know how many cases they have pending?”
So that’s my experience losing a small claims case. It proved costly, but I still felt on the side of the angels. Perhaps that experience helped me prepare for the one I won.
I can’t believe you stayed with me this far! Thank you and stay safe.