A person settled at SCC for $10,000 payment. so that the other party would (not could) have their driveway removed and replaced, but the party did not replace the driveway, just kept the cash. Can the one who paid the money do anything about it.
Paralegal quick question...
- Thread starter fireman2525
- Start date
You would need far more information to give you a more definitive response. Usually the party paying money in a lawsuit is the defendant (i.e., normally defendant pays plaintiff). I am unclear how a person could be sued, pay settlement money and be in a position to demand what is done with settlement money - normally it is the defendant that would have committed some wrongful act that makes them liable to pay the settlement money. I think what you are asking is whether the person who received the money can be compelled to replace their driveway. Legally this would be called "specific performance" of a contract.
It is rare, but not completely unheard of, for courts to order specific performance.
For example - Plaintiff buys a 2010 Honda Civic (with no particular modifications or customization done to it) for "X" dollars. The car was sold with a warranty and turns out to be completely unfit for the road. The plaintiff sues the seller of the car. The Court would order the seller to pay the plaintiff damages. The plaintiff might say that they want that specific 2010 Honda Civic repaired and made road worthy (i.e., ask for specific performance of the contract). The Court will say that the plaintiff is free to go buy any other 2010 Honda Civic and will have to take financial damages. Mainly because the courts want the parties to be done with each other as soon as possible - ordering specific performance only keeps the parties dealing with one another for a longer period of time and gives rise to the possibility of more litigation.
However, there are cases where a court will order specific performance. The most common example is real estate that is particularly unique (e.g., beach house, cottage, historical property, etc.). In these cases you cannot simply run out and buy another buy a near identical property so the Court may be inclined to order specific performance of a contract.
In your case you would need to explain why the person who paid is entitled to demand what is done with the money. Much will also depend on what was written into Minutes of Settlement.
Just out of curiosity what is the rest of the story - was the driveway accidentally on the other person's property or did the first party damage it?
Something is missing here. The Small Claims Court does not have authority to order specific performance. It can basically only order people to pay money or return property.
This is my understanding also.
So, if the guy who was paid compensation for a bad driveway decided he didn't want to fix it, or needed the money for a kidney transplant etc. he can do whatever he wants with it.
Once the bad driveway installer paid the money, it is NONE of his business what the recipient of the money does with it.
The only way to re-open the case is if the settlement was entered into under material false pretences. Saying I WILL replace it is not one of them as you would have to PROVE that he never had any intention to. And even then, I doubt that would make any difference.
other info: the defence paid to settle at settlement conference. def: paved a driveway without any contract and was paid $10,000. and owners were fine with slight imperfections in look at the outer edges (but had agreed these would be cleaned up the next summer when the small road leading to the driveway was to be paved the next summer). instead they hired a paralegal and filed a St o C for $25,000. unrepresented defence gets scared and pays $11,000 to have then drop the case and pay the complete removal of new driveway to have another new driveway paved. But the work was never done but was the reason for the settlement.
This additional information makes things clearer. As has been stated above - defendant has no say in how settlement monies are spent. Plaintiff claimed damages based on estimates of what it would cost to remove and replace driveway. Just because they used this as their measure of damages there is no obligation on them to use the money for that purpose and no way for defendant to force them to use the money for that purpose. And, anticipating a question, it is certainly not fraud to sue for negligent workmanship, use the cost of restoration as the measure of damages claimed, and then decide to live with the poor workmanship and put the money to other purposes. The issue of "slight imperfections vs complete removal + new driveway" is also a non-starter - if defendant thought there was a cheaper way to fix the issues the time to raise that was during settlement negotiations or to dispute the damages claimed at trial. Defendant chose to settle expeditiously and has to live with that decision.
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