dismissed with prejudice

[The Big Pinch]

My wife and I took our builder to small claims court to get a garage floor defect repaired. Builder hired a lawyer and moved matter to civil court. Judge advised us we named wrong party in original small claims affidavit thus claim was dismissed with prejudice (we listed builders name but should have listed the comp. name). Can we file again with small claims naming correct defendant or are we SOL. Thanks in advance. By the way we live in Michigan (Go Blue).

[JHR]

My wife and I took our builder to small claims court to get a garage floor defect repaired. Builder hired a lawyer and moved matter to civil court. Judge advised us we named wrong party in original small claims affidavit thus claim was dismissed with prejudice (we listed builders name but should have listed the comp. name). Can we file again with small claims naming correct defendant or are we SOL. Thanks in advance. By the way we live in Michigan (Go Blue).

 

I would contact another lawyer, i also live in Michigan, if you need some Numbers, PM me i have acouple good ones that i use for different things. Good luck!

[The Big Pinch]

My wife and I took our builder to small claims court to get a garage floor defect repaired. Builder hired a lawyer and moved matter to civil court. Judge advised us we named wrong party in original small claims affidavit thus claim was dismissed with prejudice (we listed builders name but should have listed the comp. name). Can we file again with small claims naming correct defendant or are we SOL. Thanks in advance. By the way we live in Michigan (Go Blue).

 

I would contact another lawyer, i also live in Michigan, if you need some Numbers, PM me i have acouple good ones that i use for different things. Good luck!

 

Thanks for the reply. I am trying to avoid using a lawyer. By the time we pay a lawyer we may as well just pay to have the floor done ourselves.

Thanks anyway.

[acrazygolfer]

My wife and I took our builder to small claims court to get a garage floor defect repaired. Builder hired a lawyer and moved matter to civil court. Judge advised us we named wrong party in original small claims affidavit thus claim was dismissed with prejudice (we listed builders name but should have listed the comp. name). Can we file again with small claims naming correct defendant or are we SOL. Thanks in advance. By the way we live in Michigan (Go Blue).

 

The court should not have dismissed your case WITH prejudice but rather WITHOUT PREJUDICE for you to amend the complaint to name the correct party ... so long as you're still within the time to re-file the complaint, assuming that you did not designate a Doe (person you don't know his/her true name/indentity but could be a defendant). If you designated a Doe, you could have amend the complaint by replacing the "Doe" with the name of the correct party. On a written contract, MOST statute of limitations, or time to file the action, is 4 years from the date of the breach. Contact the Michigan State Bar, they may be able to refer you a legal aids work shop or local bar where you can get help with simple legal matters.

 

Best regards,

[The Big Pinch]

Thanks I'll look into that.

[BJL]

The judge should not have dismissed with prejudice, but I don't think it makes a difference here. The judge probably dismissed with prejudice as against the incorrectly named defendant reasoning that the there exists no viable cause of action against an improperly named party (because they cannot be liable under any legal theory) and, therefore, you should be forever precluded from suing that defendant. Hence, a dismissal without leave to amend as against THAT NAMED DEFENDANT.

 

BUT, the dismissal should only apply as against that named defendant. Assuming that you do not have a statute of limitations issue, you can simply file a new action naming the correct defendant. The defendant probably will point to the previous dismissal as a defense. However, the previous dismissal should not preclude you from filing a new suit against the correct defendant, because the previous dismissal was: (1) against a different party, and (2) not a finding on the merits of the dispute.

 

Good luck, and keep us informed.

 

BJL

[divebreck]

Hi,

 

I build homes in the Rocky Mountains, and I'm sorry to hear that you have had a problem. I assume that you have tried to reach agreement with the builder? If you dont mind me asking what is the problem, and did the builder take any actions? I might be able to lead you in the right direction.