Served papers on a home I never inspected!

[Scottpat]

First off, I'm not named in the lawsuit....

For about the past two weeks a process server has been attempting to serve me papers. He has left notes and voice mail messages. He would come by home between Noon and 3pm, and guess what! I'm seldom home during those times.

Well today as I was taking my son to school at 7am he was waiting at the bottom of my driveway. Nice guy but what a crappy job.

Anyway, I have been served paper on a home that I never inspected! It seems that I inspected a home two years ago that is behind the one I was served papers on. The problem is that the current owners (my client did not buy) of the home I inspected changed the landscape and natural drainage and now water is flowing into the crawlspace of the plaintiffs home. According to the document they had 3 feet of mud in it. The water that created the mud was the result of the "historic" floods we had in the Nashville area back in May

OK, so how did they know I did an inspection on that home! Seems like the agent gave my report to the current owners when they bought the home.

What the plaintiffs are asking me is to verify that when I inspected the home their was not a drainage problem. They want me to be a witness, but from what I can tell they do not want to pay for an EW.

Sounds like they are asking for a professional opinion, don't you think?

[kurt]

Yep. All you gotta say is what's already in the inspection report you provided.

Anything more, they gotta pay.

[Bain]

Well, but if you've been subpoenaed, I think you're on the hook.

Something similar happened to me last year. A "Liquid Siding" paint company worked on a former client's house, buggered a bunch of stuff up, and got sued by the former client. The paint company wanted me to testify about the condition of the house before he did his thing. I refused, and he had me served on a Friday before the Monday trial. I called my attorney and learned that if you've been subpoenaed, you have to show up or the judge will find you in contempt of court.

I had to rearrange my schedule and sit in court all afternoon waiting for my name to be called. I won't say much on a public forum, but I wasn't exactly inclined to provide the paint-company guy much help.

[Ben H]

Well, but if you've been subpoenaed, I think you're on the hook.

Something similar happened to me last year. A "Liquid Siding" paint company worked on a former client's house, buggered a bunch of stuff up, and got sued by the former client. The paint company wanted me to testify about the condition of the house before he did his thing. I refused, and he had me served on a Friday before the Monday trial. I called my attorney and learned that if you've been subpoenaed, you have to show up or the judge will find you in contempt of court.

I had to rearrange my schedule and sit in court all afternoon waiting for my name to be called. I won't say much on a public forum, but I wasn't exactly inclined to provide the paint-company guy much help.

This is a prime example of why our court system is broken. [:-headach

[Scottpat]

Yep. All you gotta say is what's already in the inspection report you provided.

Anything more, they gotta pay.

That's my take as well. The kicker is that they want to take my deposition and then they are setting a trial date, etc, etc.... Dang if my "mad cow" disease does not kick up every now and then! This could drag on for a few years...

Anyway, I just fired off an email along with my EW fee schedule to the attorney saying that I will be glad to verify my report as the custodian of record. I then added that if they are needing an opinion they will need to hire me as an EW.

[Steven Hockstein]

That really sucks. Been there.

I am sure you inspect a lot of houses and don't remember a lot of things about them, especially two years later.

Also if you have an inspection agreement that restricts the report to the exclusive use of your client it makes sense to me that anyone else that wants to use your report will have to pay you. Of course many things in our legal system do not make sense.

Good luck.

[Ben H]

Scott, you gonna do anything about that Realtor handing out your report to other than the named on the report?

[Scottpat]

Scott, you gonna do anything about that Realtor handing out your report to other than the named on the report?

Na, it would take too much time and energy not to mention money! Anyway, I looked her up on the State website and she has retired her license.

I don't hold grudges or get upset about things like this. It is what it is and life is too short to let things like this upset my morning coffee.

Now, if I had been named as a defendant it might be a different story!

[hausdok]

I agree with Steven,

This is a civil matter. Time is money and they don't get to waste your time for free in civil matters. If there was a criminal complaint it would be an entirely different matter - in that case, we are all expected to do our duty on behalf of the citizenry for free - but not when it comes to lawsuits.

If you and your former client entered into a contract that prohibited the current owners from giving your report to anyone else, the current owners had no right to the information in that report and therefore should never have called you or had you served. Also, if you are in a licensed state and those laws prohibit you from sharing information about your findings with anyone not the client you would be breaking the law by testifying in court and could lose your license.

If I were in your situation, I'd contact the court clerk and point out that the current homeowners had acquired the information that you'd performed the information illegally. Also that you are not allowed by law (if your licensing laws prohibit it) from sharing reports with others; thus you can't legally testify and nothing in the illegally obtained report can be used at trial because it is fruit of the poisonous tree.

Tell them that if they insist on bringing you to court and forcing you to testify illegally you'll have to exercise your fifth amendment right against self incrimination - because you'd be incriminating yourself by sharing information about the inspection with anyone other than the original client. Tell them that it will thus be a waste of time to bring you into court.

CC the lawyer that insisted on having you subpoenaed, as well as plaintiff's counsel, and tell both sides that you'll be glad to be expert witness/consultant for either side; if they are willing to enter into an expert witness contract with you and pay you appropriately to go out, examine the property in question and then render an opinion on what you think is going on there - otherwise, point out that they're going to be pissing up a rope in court.

It might work; it's worth a shot.

ONE TEAM - ONE FIGHT!!!

Mike

[mgbinspect]

Fortunately, the only time I received such a greeting, it never even made it to depositions - settled out of court. Hoping that's your outcome.

[kurt]

Anyone even remotely connected to any court action gets subpoenaed. At least, that's how it happens here. They know they'll get most people doing it for free.

[gtblum]

I thought once you were served, it's a done deal. You will be there or else. Other than the few bucks they give you for gas, what more can you negotiate once served?

They know they'll get most people doing it for free.

[Mike Lamb]

I know you are smart enough to ask an attorney what their opinion is.

[Les]

I know you are smart enough to ask an attorney what their opinion is.

I get served many times per year. Mostly I request service and in our system it does not necessarily have any effect on fee structure.

We (nearly everyone here)are home inspectors, with areas of expertise that we sell. Once recognized by a particular level or court jurisdiction, most inspectors will be awarded reasonable and normal fees. If you play attorney and think you know, then you will likely work for $15 per appearance.

[David Meiland]

You certainly need your own attorney to advise you on this, but the person who subpoena'd you should expect to pay your consulting rates for your time to be deposed or to testify. If they refuse, have them take you in front of the judge and explain that they would like your time for free.

[Jim Katen]

I thought once you were served, it's a done deal. You will be there or else. Other than the few bucks they give you for gas, what more can you negotiate once served?

You can negotiate whether you'll testify as a fact witness or an expert witness. If you're a fact witness, you don't get paid. If you're an expert witness, you do.

As a fact witness, Scott might be marginally helpful to these folks. He'd testify about what he did, what he saw, & what he wrote. But he wouldn't be giving opinions about those things. He'd spend most of his time saying, "yes," "no," and reading from his report.

As an expert witness, he'll be much more helpful to them. He would testify about the facts but also give opinions about drainage, how it works, what are the right & wrong ways to deal with certain problems, how homebuyers typically negotiate for repairs, etc.

A cheapskate who tries to get an expert witness for free might find himself very disappointed at trial time.

- Jim Katen, Oregon

[Erby]

I don't hold grudges or get upset about things like this. It is what it is and life is too short to let things like this upset my morning coffee.

Good for you. It's a wonderful day when you wake up in the morning!

It's an even better day when you have work to go to!

Most of us, just by waking up in the morning, have it better than 98% of people in the world.

We need to remember that when life gets us down! [:-angel][:-angel][:-angel]

-

[Bain]

I don't hold grudges or get upset about things like this. It is what it is and life is too short to let things like this upset my morning coffee.

Good for you. It's a wonderful day when you wake up in the morning!

It's an even better day when you have work to go to!

Most of us, just by waking up in the morning, have it better than 98% of people in the world.

We need to remember that when life gets us down! [:-angel][:-angel][:-angel]

-

I admire your attitude, but as I've told you in person, there's nothing wrong with setting your sights a little higher. : )

[Tom Raymond]

As interesting as this witness business is, I can't help but want to skip to the end and see the outcome. One neighbor thinks the other is responsible for the flood that had most of Nashville under water. Good luck with your fees Scott, I don't think this suit has merit.

[Scottpat]

Last night I thought the name of the law firm sounded familiar and I discovered that it was for a good reason. Over the past two years I have worked for the same firm as a litigation consultant & EW about five times. I think it will all workout in my favor as this firm is a huge multi-state firm and they have always treated me well and paid quickly. I know some folks at the law firm and I plan on giving them a call today.

[kurt]

If you play attorney and think you know, then you will likely work for $15 per appearance.

Probably the most true statement in the thread.....

[John Kogel]

Last night I thought the name of the law firm sounded familiar and I discovered that it was for a good reason. Over the past two years I have worked for the same firm as a litigation consultant & EW about five times. I think it will all workout in my favor as this firm is a huge multi-state firm and they have always treated me well and paid quickly. I know some folks at the law firm and I plan on giving them a call today.

Congratulations, Scott. Your clients didn't buy, so nobody can touch you.

The home owners have no legal right to your inspection report, and that realtor will be laying low, I suspect..

Now it looks like you stand a good chance of coming out on top as a well paid expert witness.

You're a lucky man.

[Scottpat]

Well, I spoke with the attorney at the law firm. It looks like the case is not going anywhere, if at all. In the couple of weeks that were trying to serve me the papers the owners have defaulted on their home loan and their home is now in the foreclosure process. The attorney said that she will call me if they need anything!