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Unread 01-20-2020, 03:24 PM   #1
mary@bontondesigns.com
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SC court help

Help a client that is taking me to SMALL CLAIMS COURT regarding tile I made for them.

She ordered the 4x8 tiles in 2018 and I made them and everything was good.

Evidently they didn’t order enough and needed more. In 2019 she ordered more to go with the original order.

I explained that there are variances in Hand made tile and I would do my best to match it to the original order. BTW, all we had to match against was 2 small scrap pieces.

The designer did not think the 2nd batch matched the first (made a year a part). I disagree, and did not accept a return or give a refund.

Now she is taking me to court

Any Ideas or resources you can give me to defend myself in court. I have gathered all PO’s, correspondence and communications. I have checked with TCNA and AMACO.
Do you agree that ordering custom handmade tile a year apart that glaze matching is difficult due to batch lots change over time?

Do you think the GC or tile installer is to blame for under ordering the tile in the first place?
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Unread 01-20-2020, 04:16 PM   #2
Gozo
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Hand made tile is an artisan product, not a commercial mass produced item. If we’re to do a portrait painting and we’re asked a year later to do another one; I’d expect the second one to be like the first. Not the same, but such that it would be acceptable by itself. Another analogy would be leather furniture. Each hide can be tanned and dyed to be similar, but the natural variation in the animal’s skin and scars and such would result in variations.
What I’m getting at is that if they wanted blue and got green, maybe they’d have a point. If it’s close enough to be acceptable to the artist to present to the client, you get paid and the transaction is complete.
Did you inform them that these are hand made artistic tiles? Do you have any sales receipts stating so? Did they reject the tiles right off, or take them with them? Even better, did they install them? If they accepted them and paid you at the time of acceptance, it seems like a case of buyer’s remorse, not any defect in the product. If they paid you in advance, the most they could hope to recover would be the amount paid.
Batch variations would be expected from day to day, let alone a year later. Firing time and temperature, atmospheric pressure, humidity, heck phases of the moon will cause variations.
Don’t come across as an asshole in court, state the facts, and be prepared for the worst, which would be a refund. Some jurisdictions have a plaintiff always wins attitude. Usually in small claims court damages can’t be claimed. Let ‘em rot and don’t let any negative decision mess with your head.
Let us know how it goes.
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Unread 01-20-2020, 04:17 PM   #3
cx
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Welcome, Mary.

Please keep in mind that we're primarily a ceramic tile installation website here and not attorneys, nor do any of the regulars here play one on TV. We do have one "tile attorney" who visits now and then, but I don't recall his screen name.

First, are these tiles in question ceramic tiles?

If I were presiding over your Small Claims action the first thing I'd want to see would be any and all documentation describing and giving the specifics of any and all agreements made between the parties. Without that, we can't even do any reasonable guessing here.

The only guidelines I find in the ceramic tile industry doccuments pertaining to what you're concerned with here is a note in the TCNA Handbook Tile Selection Guide under the heading of Specialty Tile. That says in part:

"Specialty tiles are designed to meet special physical requirements or to have special appearance characteristics. They are not required to meet all requirements of ANSI A137.1. Consult the manufacturer's specifications.
They are sometimes manufactured to create an architectural effect toward the casual. These tiles vary in size, one tile from another. Variations in plane may be expected. Larger tiles will usually require greater variations in joint width. For each specialty tile being chosen, review installation guidelines supplied by manufacturer/distributor of specialty tiles and/or adhesive manufacturer. Specialty tiles include, but are not limited to, tiles made from nonceramic materials."

The description of Specialty Tiles in ANSI A137.1 is even more brief and says, essentially, that Specialty Tiles can be whatever they wanna be.

Beyond that, I think your argument is pretty much limited to whatever the two parties agreed upon. And without knowing the specifics of that/those agreement(s), I don't know what else to say.
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Unread 01-20-2020, 11:51 PM   #4
Brady Wimer
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What state are you in?

(yeah, I'm the "tile attorney")

Two things to remember

1) The likely very WORST thing that can happen is you would get a judgment against you for whatever they paid for the tiles.

2) A judgment still has to be collected. A judge can order you to pay them, but he can't pry the money out of your account and hand it to them.

Most people have no idea what they are doing when they take people to small claims court and those who do win, rarely collect. If you go, just present your side of the story in a pleasant manner. It was two custom orders a year apart and you couldn't guarantee there'd be a 100% match. If you have correspondence documenting such, bring it. Small claims court is informal and the rules of evidence usually don't apply. However, I'm in Missouri and wherever you are may have completely different rules. You'd be well served to look them up.
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Unread 01-21-2020, 01:09 PM   #5
houndzilla
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Might also help to bring documentation if you use commercially purchased glaze. I'm sure those have batch/lot numbers.
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Unread 01-24-2020, 11:00 AM   #6
speed51133
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You need to get your own expert witness. I would take pictures of the original tile, the newly created tile, and have the expert opine in a sworn statement if it is acceptable in the industry.

Also, include ANY paperwork from both transactions.

This is about all you can do. I would also include whatever credentials qualify the expert. If he/she can be present, even better.

Like already said, all they can get you for is the cost paid for the tile. They can't MAKE YOU actually do anything like make new tile and cannot sue you for like added money for troubles or whatever.

note, this is not legal advice and I am not acting in any capacity as an attorney.
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Unread 01-24-2020, 04:03 PM   #7
Dave Gobis
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When she contacted me the court date was Tuesday the 21st. You may be a bit late Mike. To get an expert on something like this to and appear in SC court would be pretty pricey. Did think of someone in Anderson SC though.
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