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Being threatened to sue over deposit for work.

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lovebearsall

Junior Member
Florida

Hello all and thanks in advance for reading my post and for any advice you might leave! :D

I am new to this forum so please forgive if I missed something I should know.

I am an artist and was recently contracted for a job painting 12 murals. We never wrote or signed any contract so when I say contract it is indeed all verbal. I will refer to the person hiring me as JR. JR had me come in and view his business in Nov., he needed 4 murals painted, a logo wall mural and the walls painted in his new salon. I had put together a design and we talked about what colors, etc. I received a call a few days later stating that they could not use my services because I was not licensed. (I am not a business, just a fine artist! :p) I kindly accept and I offered to only do the murals (as I know of no license needed to paint murals) but I was refused. Ok, not a problem, I understand.

Fast forward two months, I receive another call from JR this January, he is wanting 12 murals painted (on canvas, 134 sq. ft. total) and he asked for a quote. I told him $25 per sq. ft. and charged a total of $3,350. He looked over the prices and told me it was out of his budget and counter offered $1,300+ more money for more detailed paintings and + supplies + free salon services (excluding 'tip'). Since he agreed to purchase supplies, I agreed to the price. I then asked for a $500 deposit with the rest payable upon completion.

About a week later JR was ready to buy supplies and so JR's assistant and I went to Pearl (discount art supply store) and purchased the twelve canvases along with paints, brushes, and paint additives, totaling about $1,000 (premium quality items, much on sale, stuff I would have purchased for the project if I was in charge of buying). Before we reached the counter I had asked twice if JR had a budget in mind, what was acceptable to spend and asked if JR's assistant approved of what was being purchased. I received an email that night that said the project was beyond JR's financial expectations and they were returning all supplies and JR wanted his deposit back. I wrote back to JR that we can return many items and purchase student grade quality items to save money and move forward with the project for much less money. I never mentioned the deposit, I was trying to work with him.

I received a phone call the next day from JR's assistant asking for the deposit. I told her I would be in touch with JR. JR wrote an email, again asking for the deposit but I have yet to answer as I would really like some legal advice first.

I feel that I am entitled to keep the deposit for my time and effort I have already invested in TWO different major projects JR had me draw up designs for. As far as I am concerned and with most businesses, deposits are NON-refundable.

Now I hear that he is threatening to sue.

What should I do? Should I cave and give JR his deposit before he takes me to court? Is it all just a threat? Would I lose in court? What about my time and efforts?

Thanks again, all, I really do appreciate your help!:D
 


beta

Member
:rolleyes: You will probably lose in court. Give the money back and move on. Why would you want this issue hanging over your head. why produce unwanted stress and aggrivation of dealing with this person over an amount of money such as you described! Besides, they may very well win in court anyways.
 

lovebearsall

Junior Member
Is there any way that I can be compensated for my time? Like sending him an invoice? Everyone I have spoken with says that JR backed out of his half of our verbal agreement, therefore he forfeits the deposit. Agreeing to refund the deposit upon payment of an invoice that I draw up for my time and expenses was suggested but shot down by another as I am not a business. Any possibilities?
 

longneck

Member
in the past, have you ever charged any of your clients an hourly rate for similar services? do you have evidence of this, such as contracts or invoices? if so, bill him for the time you have spent on the project so far (time shopping, etc.) at that same rate. this will probably be less than the deposit. return the deposit, less you fee. also return the unused supplies to JR. they bought them so they are responsible for returning them, too.

unless they want to pay you at your hourly rate to return them. :D

take this as a sign that you need to form some sort of business entity and have a lawyer draft a standard set of contracts that you can fill in the blanks on.
 

lovebearsall

Junior Member
I have only worked for other companies (in the art biz) (at $10-$15 hour) and never before for myself as a painter.

Right now I make $15 hour (doing unrelated work) so that is what I value my time at (not for long, I definitely feel I am worth more :p). A friend told me his time is worth $30 and with my experience in art and the work I do, he suggests I charge more for my hourly but I have no previous record of charging $30 hourly (or more than $15 hr. for that matter) for anything. I could research and see what others charge but I am not sure of too many artists that work for an hourly rate. :rolleyes: Well, there is always the Disney artists... maybe they are paid hourly. :D

Since I am not a 'business', can I still bill him? I spent my fair share of time driving to this place, and gas, and time waiting for JR and his assistant, time at several stores, my car was even hit once on the way to JR's and now I have to pay to replace a fender!(!!) :mad: In addition, I have spent time on the interenet researching abstract art and putting together layouts and designs just to trash them. I also have two children I had to arrange care for so I could do all of this and here in FL it costs $10 hour *at least* to find quality care for two children! Which means after gas and daycare I practically work for free at only $15! I would really like at least my gas, time and child care covered. All these factors in mind, I think $30 hr is fair. I just checked salary.com and with my experience, the average artist makes circa $48,000 year, divided into 50 working weeks comes to $960 weekly and that is $24 hour for a 40 hour work week... so according to salary.com I am worth at least $24 hour. (Although $30 is such a nice round number :p)

<sigh>

With this experience, I am looking less forward into starting the painting biz I was dreaming of and more into something with a steady non-starving artist's salary but I think that getting a business entity going and hiring a lawyer to draft contracts seems like a very wise decision indeed. Do you know about how much that would cost? I have a friend who is a paralegal, can I hire him to do that?

:D Thank you so very much for your help! :D
 

Ohiogal

Queen Bee
You have nothing to base the hourly fee on. YOu have not charged others that fee and you did not have an agreement that he would pay you an hourly fee if the project did not continue to fruition. That is the problem you have. You also apparently did not discuss whta the deposit was for and how it was to be used.
Next time get a written contract that outlines all of this information.
 

GatorLaw

Member
It is hard to tell how this would play out in court. While you could argue that you had a complete oral contract and that JR breached this contract, JR could argue that the missing terms (costs of supplies) made this simply a negotiation. He may also argue that even if it was a contract, this "deposit" was really a partial payment, which he should receive back minus any losses you suffered. You could argue that this was a non-refundable deposit to secure your services and that you should keep it entirely because he was the one who breached the contract.

You could also file a counterclaim against him for the profits you expected to make [expectancy damages] (contract price + what you have spent - the expenses it would have cost to complete the project that you saved on by not doing it - money you have earned that you would have been unable to earn had you been working on the project) which sounds like $800 (you already have $500) minus income you have made during which you would have been working on this project. I am unsure how successful this claim would be, expectancy damages are usually rare.

For the losses you suffered, in order to claim damages for loss of a chance for other work (reliance damages), you will probably have to prove that this work precluded you from other work. You did not mention how frequent this unrelated work is, but you may be able to claim the hourly value of what you would have made if you were not involved with this.

This would all be fine and dandy to test in court if the transaction costs of a trial were 0, if it stays in small claims it probably won't be that bad.

Good luck
 

lovebearsall

Junior Member
Work has been erratic in the past but I have had several jobs that I put off because he had such a deadline he needed met, so yes, I did miss out on work! Especially since, with the kids, I only have so many working hours in a day that I had focused solely on his project.

Thanks for the great reply! Gives me something to think about!
 

lovebearsall

Junior Member
I contacted JR today and again offered to complete the project as planned, this time with airbrush only as to save him money, and told him it could cut his spending on supplies by about 60% (His major issue was with the price of supplies, as far as I know) I also told him that the deposit is not refundable.

He says he is pursuing this with a lawyer and he would see me in small claims.

I am gathering all the dates and times that I have gone out to the salon and for what purpose, as well as all of the shopping trips, all email communication and all times we spoke by phone.

Besides waiting for his lawyer to contact me, what is my next step?
 

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