Mr. S states in his claim that I tempered with his website without authorization. He also claims that 1 week of down time for a 3 week old website that spend $0 on marketing cost him tremendous damages.

Here is the Answer and the counter claim:



To the Court:

The claim filed by Mr. S of FSR should not prevail due to the following reasons:

1. There was no contractual agreement. Mr. S has no legal grounds to view an application for employment as a contract of any kind, especially when dealing with an independent contractor, even having me fill out that form was illegal since there was no employer-employee relationship as defined by the IRS.
2. The loose verbal agreement stipulated that Mr. S would pay for my licensing, at total value of $419.00, if I agreed to work for the firm. He did pay for the AREA Real Estate Academy $199.00 value, but failed to compensate me for the actual licensing $219.00 as was part of the agreement and without which the initial agreement was null and void.
3. There were no company expenditures as the company failed to provide any kind of training, support, insurance, or any other item that may be deemed as pre-paid.
4. When Mr. S attempted to conduct an illegal and unethical real estate transaction, he informed me that he would be taking the cost of the class from the commission of that transaction; thereupon I informed him of the cost of the web mastering and took down the site within 24 hours. Mr. S threatened me with a lawsuit unless I restored the site. I informed Mr. S that it will be restored 72 hours after he remits the full payment for services rendered.
5. Mr. S solicited and accepted web services from me furnishing his explicit consent to manipulate his FTP folder by providing me with all the company passwords and usernames.
6. Mr. S initially billed me $199.00 electronically, a method I do not honor, as the cost of the class. He has since, without proper justification, inflated his claim ten fold to the maximum allowed by the Massachusetts Small Claims Court.
7. Analysis of web traffic to Mr. S site indicates that 1 week of down time would not have cost First Step Realty “tremendous revenues”, or any revenues at all, due to the extremely early stages of the site development. It take’s many months and years for a website to start generating leads.

I do not believe it is illegal to ask someone to complete an employment application. Maybe not appropriate for the circumstances, but I know of no law against it.

Please take this the right way. I personally hate when someone messes around and doesn't pay a contractor for his services. I am not a lawyer so, while this should not be construed as legal advice, your answer/grounds for defense seems to have inconsistencies that you probably want to look at:

If you agreed to perform services in exchange for compensation, and you performed the services but were not compensated, you would have grounds to sue for breach of contract. Instead of suing, however, you chose to take down the site. If the site is the property of someone else, and that person did not give you permission to take down the site, then that would be consistent with the claim made against you.

That can be a dangerous knee-jerk reaction. In fact, you may have implicated yourself by stating that you refused to restore the site until you received payment in full. The other party could argue that you were asked to do something within the scope of work for which you were contracted (e.g. restore the site) and your failure to do so amounts to a breach of contract on your part.

Your job as a defendant is to defend yourself against the claim. If the charge is tampering without authorization, it sounds like that is what happened by your own admission. And giving someone passwords and usernames to access a site is not the same as explicitly authorizing someone to take down the site.

By the same token, it is the plaintiff's job to prove damages. I don't know the details, but I would suspect that would be difficult to do, esp. as it was a brand-new site as you pointed out.

Another thing: Are you sure you would want to characterize the verbal agreement as a "loose" one? For an agreement to be enforceable, there must be a "meeting of the minds", meaning that both parties shared a clear understanding of what was expected from each other. It's almost as if you're saying on the one hand, there was no clear, enforceable agreement so therefore you can't be bound to it, but on the other hand, there was an agreement that he breached which somehow gave you the right to pull his site. You can't have it both ways. Your defense has to be based on fact and sound legal principle.

If the judge ends up not appreciating the plaintiff's attempts to milk the statutes by suing for the maximum allowed, he/she may appreciate your countersuit for almost $1200 even less, esp. when your original agreement was to provide services in exchange for a lump sum of $419. Unless I am missing something--was the initial agreement to pay for your licensing only in exchange for your services, or to pay for your licensing PLUS a certain pay rate for your services?

Good points. I wish you had replied before I sent it to the court. Although there is not much to change.

The initial arrangement was that he would pay for the licensing and I would do web design. He paid only for the class but not for the licensing and then tried to get $199 back when I said that I would need to be compensated for the web services rendered. There was no agreement as to what would happen if there were ethical improprieties and if the agreement was broken by either side.

A deliverable is very iffy; if you do not pay your phone bill, your phone dies, while if you give someone access to your FTP and say “I like the site, publish it” that’s a pretty good indicator that authorization was given, the intent was clear. You can view the site as an ongoing service; he never paid for the rights to the actual site, while when my authorization ended is not at all clear since he did not change the passwords, a logical step if you know you are no longer working with someone.

There were no contracts at all, and the meeting of the minds was not concrete (but a good point), I have one month worth of emails proving that the services were provided; while he billed for $199 initially, AFTER the site went down in response to my billing him and then inflated it to $2000 which is ridiculous( put up a site and see how many people come to it if you spend $0 marketing it, in the first 3 weeks).

I sent all of my correspondence with him to the court with my counter claim. I don’t care if the court does not decide in the favor of the counter claim, I just want it to be equally settled, I want them to realize what this guy is doing, he inflated the bill out of spite, there were no damages( his whole company is not worth $2000). Going rate for web design and upkeep is about $80/h depending on what company you go with, I billed him $50/h.

It’s ugly. I really didn’t want it to come to that, but the issue that broke the deal was a black and white legal issue. He instructed me to break the law and I told him to find a new agent.

That's the line you need to start with when you go before the judge. It becomes so clear now (to me, anyway).

Tell the judge very simply that you agreed to design his web site for such-and-such, then show him the e-mails and the work you did. Then tell him things went south after your refusal to go along with his shady deal, and here you are with X hours of work and no money to show for it. He refused to pay you out of spite, so you withheld the final product. End of story.

Hopefully the judge will see the light and tell the guy to pay you and then he gets his site.

And, from now on, make 'em sign a contract that spells out exactly what the compensation is and what the deliverables are, AND that you retain all rights in the work until payment is received in full. CYA.

He got a different site, but that’s pretty much it. The work was done regardless of delivery; the services were provided. If he pays I could throw the site up for him, but he doesn’t need it anymore, which is fine.

Since this is small claims, each side presents it how they view what happened. I will start out by saying that he asked me to break the law and that’s when the agreement was broken. That's probably the best part of it.

Thanks!