legal options?

peasantgirlieMay 11, 2011

I promised myself this post would be brief, but it didn't work out that way........!!

I am struggling with a contractor and I am considering a small-claims suit, and I'm hoping someone, anyone, can help me here.

A little background:

I originally had a different contractor (let's call him the owner of XYZ Biz) out to the house and he gave me a quote for major renovations. He was an older man, and showed up in slacks and a tie, and made a good impression. Didn't look like the type that actually did the physical sort of labor we were talking about. When a different man showed up on Monday to start work, all I was told was "This is Mike, he'll be working on your house." I thought Mike was his employee.

As I worked out later, after many pointed questions, I figured out that XYZ Biz passed this job on to Mike.

But it turns out that Mike doesn't actually own a business. I'm not sure he even has a contractor's license. And I had to find this out by accident, by hearing random comments between Mike and his helper, and thinking the situation felt odd, and then by asking questions. NO ONE ever came forward to tell me that "XYZ Biz" was not actually doing the work. Mike was at least 2 weeks into the job before I discovered he was not working for XYZ Biz.

Soooo, the problem is that Mike was not here for the original discussion, and he claims he was not told about certain parts of the job, and that he was not paid for that work by the original contractor, (who was still billing me even though his company was not involved!). Mike has openly admitted to me that he doesn't show up when promised because he has lost money on this job and is working on other jobs that pay better.

So, what I'm wondering is what kind of legal ground I am standing on, if anyone wants to toss out an opinion. My stuff has been in storage all this time, and I am looking at at least 2 months extra storage rent ($200), plus the hassle of not having my stuff when I need it, and sometimes having to buy replacement items (warm weather clothes, for example) because the originals are buried in a storage unit. Plus, the time lost for all the times he promised he was coming and then didn't show or call. Plus the fact that the first guy said the job would take 3-4 weeks, and I believe it would have (or reasonably close to it) if his men had actually been doing the work. As it stands, I have been living in a construction zone for almost 3 months, because Mike pencils me in and only works here whenever it is convenient for him.

And I'm also pretty angry at the first contractor. I feel like the whole thing was shady. The first contractor runs a large construction company and I thought I was getting the work done by professionals. What I got was shoddy, unprofessional work by Mikey from down the block. I believe the first contractor had an obligation to make it clear to me that his company was not actually doing the work. I should point out that the first guy knew from Day 1 that he was passing this job off to someone else, yet he sent to me a written estimate for the job on his company letterhead. Then, I requested a corrected estimate due to errors on the first one, which he also sent. At no point did he ever point out that his company was not actually involved anymore. He actually sent me two written estimates, knowing the other guy had started work. What on earth??! He had to have known that I thought he was still involved. I'm pretty sure he took some percentage of what I paid, and I suspect that he knew I would be angry if I found out that a "nobody" was doing the work. I had made very clear to him when I first met him that I had already had one bad experience and I was very wary of it happening again. So, he deliberately left me in the dark, IMO.

And before anyone suggests that I somehow was not paying enough attention, let me just say that I strongly feel like I did due diligence here. I had already had that previous bad experience with a fly-by-night company that I found online and they made me pay up-front (for materials, they said) and they took my money ($2,200!!!) and disappeared. So, this time I vowed not to make the same mistake. I got a personal referral for this company, I verified that it was a legit company, and I got not one, but two written estimates. So, not sure what else I could have done. If I authorize XYZ to do the work and he sends me an estimate and then he shows up and says, "Mike here will be working on your house", I think anybody would think that Mike worked for him. Am I wrong?

Sorry so long, I got carried away. Any thoughts? Or if anyone has any similar experiences with contractors leaving you hanging, how did you deal with it? Anybody know the legal terms for their actions? Also, I still owe $440 for the last bit of work they did in the bathroom and I am wondering what my legal options are regarding holding back that payment until such time as this may be settled in court.

Thanks in advance for reading this long post, and any help is much appreciated!

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I'm not sure why you say that Mike isn't working for XYZ. He obviously has an employee/employer or subcontractor/contractor relationship with XYZ. Either scenario is quite common in the construction industry. If you are not pleased with the work he's doing, then take a look at the contract that you signed, and see what remedies it provides. Then have a conversation with XYZ and clear the air.

    Bookmark   May 11, 2011 at 11:54AM
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You should not be talking to the worker except to say hello and how are you. Call XYZ and let them know you are not getting what was promised. And tell them you expect XYZ on site to supervise the work so you don't have to do it.

Find out if your state has a home improvement contractor law.

    Bookmark   May 12, 2011 at 3:12PM
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At no point do you mention a "contract" only estimates from XYZ. Do you in fact have a signed contract? If so, then contact a lawyer and start proceedings to sue him for breach of contract.

If work is being done on acceptance of the estimate then it should have the scope, time frame, and payment schedule outlined on it. That lists what you're entitled to.

I agree with live_wire. You arranged the deal with XYZ and your payments go to XYZ. XYZ is your contractor. It's his business who he subs the job out to. He's still responsible for the work and any guarentees even if he did not physically do the work himself.

Spend another $100 and sit with a lawyer and go over your options.

    Bookmark   May 12, 2011 at 3:42PM
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If the "estimate" contains your name and has the contractor's letterhead or signature and a date and describes the work proposed and you have proof of paying the down payment contained in the "estimate", then it might be an enforcible contract.

    Bookmark   May 16, 2011 at 6:42AM
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Agree on the need for a contract. Before calling in a lawyer (who will have a hard time without a contract to go by), I would talk with XYZ, tell them the job got off to a bad start and you want to regroup and resolve it. Start off nice and businesslike and see if you can resolve it. Get a written contract that spells out who will be working in your house, their licensing, payments (don't ever pay ahead of work being done), permits, etc. If XYZ won't do that then go to a lawyer. It's worth a shot to resolve it first in a reasonable manner since you don't have a contract to fall back on.

Regardless of how this is resolved, though, you'll need a lien waiver from anyone who is working in your house. Insist on it or it will come back to haunt you.

    Bookmark   May 16, 2011 at 2:25PM
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have you called XYZ and talked with them? What did they say?

If they are billing you and you are paying them, it is their job. You should never pay Mike or really have any direct business-related interaction with him. It sounds like XYZ sub'd to Mike, who probably works for several contractors. It isn't that unusual.

oftentimes the estimate IS the contract for smaller jobs. It should have a time of performance and price. It seems the biggest issue here is the time.

Call XYZ, their reputation is on the line. Let them know how dissatisfied you are and ask what they will do about it. If nothing, you'll have to file small claims.

Also, figure out a way to summarize your problem in three sentences. I read that big long first post and am unsure what the problem is.

    Bookmark   May 18, 2011 at 2:43PM
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Sorry it took me so long to get back to this. My internet has been out for over a week!

Thanks to everyone for the replies and advice.

Again, long post, sorry! I don't know how to be concise. I feel like I gotta "splain" everything, LOL!

Bottom Line:

Work done, I'm not paying the balance due, seriously doubt Mike will pursue it as he knows they screwed up. I probably should go after XYZ but it's not worth the headache. I don't want any of these jokers in my house at this point. I will fix what I can and live with the rest.

If anyone is interested in the details, here is the long version...

As it turned out, Mike is NOT licensed. He had originally told me he was, but when I asked for his license info to add him to the building permit, then he admitted he didn't have one. Also, when I called XYZ the first time I started having concerns, I was told that they were "not involved" in the project anymore, and wouldn't talk to me.

Apparently, there is a THIRD person involved. XYZ passed it to "Tony" who then passed it to Mike. When I paid XYZ, I was told that XYZ took no part of this payment and gave it directly to Tony. (I don't believe this.) Tony says I have to talk to Mike about it. Mike says he doesn't know anything about any contracts and that he did the work he was told to do, and that anything left undone is not his problem. Everyone is passing the buck.

At this point the work is finished. Mike asked for payment and I asked for 24 hours to have a chance to go over everything and make sure it was satisfactory. (I knew it wasn't; just needed the time to itemize the defects.) He asked me to pay him for materials, which I had no problem with but as I walked away to get the checkbook, he followed up with, "And you're gonna sh*t me outta the rest, aren't you?"


It was "on" at that point. I'd already made 2 large payments, one of which I even paid early, so he had no reason to think I wouldn't pay the balance except that he knew he didn't deserve it. I did pay him for the materials used, so the balance is only a couple hundred and I WISH he would sue me for it. Until he'd made that comment I was only planning to itemize the quality issues I had and withhold payment until he fixed them, but after that nasty remark I was happier calling my neighbor (let's call him "BIG Jim") who immediately came over and politely told Mike it was time for him to leave. NOW.

As it stands now, I doubt he will pursue it, but I have all my documentation and pictures of the poor work, so I am READY to go to court if he really wants to go that route.

Son of a b*tch didn't even caulk the shower that he tiled. Put grout right up to the tubline and left it like that. Grout started cracking and crumbling the very first day. Man, there are so many things wrong that I don't even know where to start. I thought I was getting PROFESSIONALS to do the work and instead I got Little Mikey who likes to hit things with hammers.

Right now, I'm calling it a lesson learned. The lesson is, DIY next time!

Thanks again for the advice.

    Bookmark   May 23, 2011 at 12:36AM
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This is not just about poor business practices and breach of contract, it is consumer fraud.

The laws covering this kind of criminal activity are different in each state so it would be wise to contact your state's attorney general's office.

Where I live the consequences for this kind of activity would be awful for the perpetrators and you could get partially reimbursed for the cost of repairing the damage from a home improvement fraud fund. If the GC survived with his license, your successful complaint would be on his record and could be accessed online by anyone interested in hiring him in the future.

    Bookmark   May 23, 2011 at 8:59AM
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peasantgirlie - I must admit, when I first read your post I thought this was a simple case of a contractor subbing out work (perfectly normal) and that you just didn't understand how these things worked. I am so sorry. After reading your last post, the behavior of all contractors involved does, indeed, appear criminal. I know it would be easiest for you to just chalk it up as a lesson learned at this point, but please consider writing up a formal complaint and filing with the BBB as well as the contractor licensing agency in your state. You might be able to save someone else a great deal of pain. Predatory contractors bank on people that either don't know better or aren't willing to pursue them.

    Bookmark   May 23, 2011 at 9:26AM
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peasantgirlie: Iam somewhat confused. You keep ranting about how horrible the job was and how you've made "2 large payments" and yet you're all set to let the deal close by withholding a couple of hundred.

you write "I did pay him for the materials used, so the balance is only a couple hundred and I WISH he would sue me for it."

Why did you pay him for anything else. Let him sue you for the materials, too.

You said you got personal references for YYZ and they were a "legit" company. How can someone be legit and take your check and "pass it to someone else" and claim they aren't involved in the project????

You say "Mike says he doesn't know anything about any contracts and that he did the work he was told to do, and that anything left undone is not his problem." Who told him what work needed to be done???? It's your house.

there's a lot of inconsistencies. Put all your documentation together, pay the couple of hundred you held back to a lawyer and see what kind of satisfaction you can get from Mke, Tony and XYZ.

    Bookmark   May 23, 2011 at 1:33PM
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You are not handling this properly in any way, shape or form. You may be liable for much more than a couple of hundred bucks--you have no idea what "Mike" is owed. By agreeing to pay him directly, you made a mess of your original contractual relationship that at least specified a total fee.

See a lawyer.

    Bookmark   May 26, 2011 at 11:13PM
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Tell us the state you live in.

It might not be necessary to hire a lawyer if your state's Attorney General's Office enforces a consumer fraud or home improvement law.

If you haven't yet googled "home improvement law" for your state, you're wasting time, effort, and probably money.

    Bookmark   May 27, 2011 at 7:28AM
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you definitely seem to be owed the cost of repairing the defects, at the very least. good luck!

    Bookmark   May 27, 2011 at 11:40AM
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