Appeal

[paintjob]

I am a painting contractor in Va. I have just received a judgement against our company for approx. $2500.00. It was a color dispute. The homeowner that sued us never gave us a chance to see or fix the problem. My lawyer didn't make much of an issue of that in court and I feel that was the whole case. I am appealing the decision. My question is, do contractors have the right to fix the problem? This guy did not give us the chance. The homeowner never called us about a problem until nine months after we had finished the job and were paid in full. The first I heard of a problem was on a Thursday, I called and said we would be there Saturday to take a look at it. He said that won't be necessary since the new painter I've hired will be finished by then. Then he told me he wanted us to pay the new painters bill. He won in court. Don't we get a chance to fix our mistakes?

Paul

 

[Attorney_Replogle]

Generally speaking the homeowner has a number of ways to remedy the problem. He does not have to go back to the contractor to have them fix the problem. What the homeowner does have a duty to do is to quickly, promptly, and reasonably take steps to fix the problem. That may include getting another person/company to fix the problem. However, this general contract theory may be changed in your state since often times state governments want to have some regulation of licensed contractors.

The bottom line is that you should indeed timely file an appeal and consult with other attorneys near you to get new representation. Perhaps in the future you can win the appeal and get the judgment thrown out.

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Mark B. Replogle

 

[Tracey]

You may have difficulty raising the opportunity to cure issue on appeal. You can only appeal an issue raised at trial, based on arguments raised at trial, and can only argue it by citing to the record. You can't introduce new evidence or testimony or find a wonderful new argument. If your record is insufficient or your state enforces these restrictions vigorously, your only remedy may be to file a complaint with the state bar. Also, opportunity to cure is a requirement in a contract for the sale of goods, but may not be required in service contracts in your state. You could argue that the Uniform Commercial Code article 2 should apply to the paint you sold them (and its color), and contracts common law should apply to the work you did putting the paint on the walls.

You won't get a new trial. At best, you'll get the award reduced.

Keep in mind, to appeal the verdict, you'll have to pay the court reporter to transcribe the entire trial. This will be costly. By the time you pay for the record, post the appeal bond, pay the filing fees, and spend 2-4 weeks writing the brief, you will have invested far more time and money into the apepal than you can reasonably hope to have reduced from your award. Also, if the appeals court finds your appeal without merit, it will probably order you to pay the plaintiff's appellate atty fees. Ouch!

OTOH, getting a verbatim record of proceedings takes months around here. Between requests for extension to get the report and for more time to write the brief, you can drag this out for at least another year. Perhaps you can negotiate a settlement amount in exchange for abandoning your right of appeal. Settle for what it would have cost you in time and money to redo the job.

BUT, you can't file an appeal just as a negotiating tactic!! You have to have a reasonable belief, based on research into the facts AND INTO THE LAW, that you have valid issues to raise. (Otherwise, you face sanctions under Civil Rule 11.)


Good luck,
Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

[This message has been edited by Tracey (edited April 25, 2000).]

 

[Paintjob]

Are you saying that any homeowner can have any work we do re-done by another contractor and then charge our company their price and we have to pay it? That is basically what happened in our case.

If that is true all contractors are at much more risk than I ever knew. If that is true the best thing for me (as a homeowner) to do when I need work done is to hire the least expensive contractor I can find. Then when they complete the work, find a problem with it. Then go out and hire the best, most expensive contractor in town and have them re-do the work and send the first contractor the bill. Thisdoesn't seem fair or make sense to me. Please explain.

Paul

 

[Tracey]

Paul,

The DEFAULT rule is that a homeowner can hire anyone they like to fix a contractor's "shoddy" work, whether it's really shoddy or not. However, in order to get reimbursed for the repair work, the homeowner has to prove that the original contractor's work was sub-standard or didn't meet the contract requirements, and that the repair contractor charged a "reasonable" amount to fix the problem. One can't simply find any problem - it has to be real and substantial.

However, parties to a contract can change the default rules by specifically addressing those issues in their contract. You can avoid many of these problems in the future by doing the following:

1) Take before and after pictures of all work done - wide shots and closeups. (35 mm, not polaroids)

2) Add a "Limitation of Remedies" clause to your work contracts. The clause should say that the homeowner must give you a chance to cure work s/he believes is defective. If the owner fails to give you written notice and an opportunity to cure, s/he cannot recover any money paid to others to "fix" the work. You might want to hire a local contracts/contractor law attorney to check your state's laws on limitations of remedies for remodel work and to draft the exact language. Make the owner initial the contract next to the clause, showing that you drew it to his/her attention. If the owner does not give you proper notice and a chance to fix things, s/he can't recover any money in a suit. This will also 'freeze' the list of defects - anything not brought up in writing and shown to you can't be included in a lawsuit.

The complaint and subsequent meeting to look at the problem is also your opportunity to take pictures of the disputed work and compare those pictures to the shots you took before and after the work was done. If the owner refuses to let you into the house to repair, s/he can't recover any money.

3) Have the owner sign a 'Final Inspection' form. (Keep a copy, of course.) The form should say that each job was completed satisfactorily. ("Job" = each separate line/item in your bid/quote/contract.) The form should also have the owner acknowledge that s/he understands how to contact you and make a claim for any defects s/he was reasonably unable to detect at the time of inspection. This way, if the owner tries to argue that something was done improperly, you can use the form to argue that s/he accepted the work already, or should have noticed the alleged defect at inspection time, and that s/he knew how to contact you regarding alleged defects but didn't.


These steps will make it much harder for future clients to sue you and win, and will give you a chance to repair your customer relationship before things get to the litigation stage.

Good luck,
Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

[This message has been edited by Tracey (edited April 28, 2000).]

 

[I AM ALWAYS LIABLE]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Tracey:
Paul,

The DEFAULT rule is that a homeowner can hire anyone they like to fix a contractor's "shoddy" work, whether it's really shoddy or not. However, in order to get reimbursed for the repair work, the homeowner has to prove that the original contractor's work was sub-standard or didn't meet the contract requirements, and that the repair contractor charged a "reasonable" amount to fix the problem. One can't simply find any problem - it has to be real and substantial.

However, parties to a contract can change the default rules by specifically addressing those issues in their contract. You can avoid many of these problems in the future by doing the following:

1) Take before and after pictures of all work done - wide shots and closeups. (35 mm, not polaroids)

2) Add a "Limitation of Remedies" clause to your work contracts. The clause should say that the homeowner must give you a chance to cure work s/he believes is defective. If the owner fails to give you written notice and an opportunity to cure, s/he cannot recover any money paid to others to "fix" the work. You might want to hire a local contracts/contractor law attorney to check your state's laws on limitations of remedies for remodel work and to draft the exact language. Make the owner initial the contract next to the clause, showing that you drew it to his/her attention. If the owner does not give you proper notice and a chance to fix things, s/he can't recover any money in a suit. This will also 'freeze' the list of defects - anything not brought up in writing and shown to you can't be included in a lawsuit.

The complaint and subsequent meeting to look at the problem is also your opportunity to take pictures of the disputed work and compare those pictures to the shots you took before and after the work was done. If the owner refuses to let you into the house to repair, s/he can't recover any money.

3) Have the owner sign a 'Final Inspection' form. (Keep a copy, of course.) The form should say that each job was completed satisfactorily. ("Job" = each separate line/item in your bid/quote/contract.) The form should also have the owner acknowledge that s/he understands how to contact you and make a claim for any defects s/he was reasonably unable to detect at the time of inspection. This way, if the owner tries to argue that something was done improperly, you can use the form to argue that s/he accepted the work already, or should have noticed the alleged defect at inspection time, and that s/he knew how to contact you regarding alleged defects but didn't.


These steps will make it much harder for future clients to sue you and win, and will give you a chance to repair your customer relationship before things get to the litigation stage.

Good luck,
Tracey

<HR></BLOCKQUOTE>


My response:

Tracy, these are truly excellent suggestions. My sincere compliments !!

IAAL


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[Paintjob]

Tracy,

Thank you very much for your reply. I think I will use a lot of your advice. One more question.
When we were leaving the court that day the homeowner got right in my face and said, "I told you I was gonna sue you. Now I'm gonna sue you again for a bathroom" (or something). How long can he keep suing me? The thing that scares me is that this guy is loaded with money (10's of milllions) and for some reason must be out to get me, although I really don't know why. I really think the decorator was at fault but that's another story. Is there any way I can put a stop to this? I would just pay him the first judgement if he would stop threatening me with lawsuits. My first lawyer said that he called the other guys lawyer and told him we would pay if he would sign something saying that he wouldn't sue anymore. The guys lawyer(supposedly) never responded.

Thanks again,
Paul

 

[Tracey]

Well, the only thing I can come up with is the civil procedure rules of joinder.

The joinder rules require a plaintiff (or defendant) to bring all causes of action arrising out of a particular contract/course of conduct, or against one defendant, in one lawsuit. In other words, if one remodel contract covers work done in the living room, bathroom, and kitchen, the owner has to bring all 3 suits at the same time. Your best argument is that all the remodels you did were one "course of conduct" and the fact that they were on separate pieces of paper is irrelevant because your crew worked on all 3 jobs together, you billed for all 3 jobs together, and the owner paid for all three together. Alternatively, you can argue that owner had to bring the second suit with the first *in the interests of judicial economy*, since the parties, nature of the complaint, and evidence were all the same. The buzz phrase there is "judicial economy." Courts are so clogged these days that they really frown on serial lawsuits. You get to argue all this before any trial is set and the judge cannot consider the "merits" of the owner's case.

If the joinder arguments don't work, you might consider pulling the case out of small claims court and demand a jury. You don't have to accept small claims jurisdiction, I think. (Check your state's rules.) You have a good chance of convincing a jury that the evil rich guy is beating up on poor, hardworking, honest you. A jury will also think it's unreasonable to spend $2500 "fixing" a $1500 job. Along the same lines, make an offer of judgment and hope the jury awards less money. If it does, HE has to pay all your legal fees and costs from the time after you make the offer. This won't deter the vindictive twit, but you might get more in atty fees than the jury awards him!

Also under the joinder rules, the next time he sues you, you should drag the decorator into it and say, "It's HIS fault; make HIM pay!" This will force the judge to apportion fault between the two of you.


I like your atty's idea of conditioning settlement on obtaining a release from further suits. Note the appeal and negotiate away.

Good luck,
Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

 

[paintjob]

Thanks Tracey, you have been a BIG help.

Paul