Help! In desperate need of legal advice...

[Strawfoot]

Greetings,

We are in dire straits with our pool builder. I've come here for advice because I've seen a wealth of very informative individuals on this board, eager to help others with problems. Right now, I need help/advice of a legal sort. I'd be especially grateful for feedback from individuals in the legal professions, or better yet, someone who has dealt with my problem.

Last summer we contracted with a small company, they are an LLC, to build a pool and a cabana in our backyard. It has been one headache after another, getting them to complete the work and also take care of our complaints. We've lately had serious concerns that they would go bankrupt and we'd be out all of our money. As of now, the pool is finally plastered, but the cabana still needs work. The quality of work has not been bad, in fact our yard looks pretty good.

Anyhow, we signed separate contracts for each. My wife and I have made some mistakes throughout this entire ordeal, the biggest of which was losing our original contracts. For weeks we asked for copies, which the PB belatedly provided us with. On the copies they provided, there were some irregularities such as it showing that my wife and I had not signed on the proper line. There were some other pages which we did not initial. I honestly do not remember if these were legitimate gaffes on our part or whether they doctored the copies they gave us. Another mistake we made was not getting changes we later made to our contract written down on an official amendment to the contract.

Primarily, on the pool contract our specs called for the deck to be approx 400 feet of textured concrete. Later, well before decking, we decided to increase our deck size by about double, but to go with a Rainbow Handseed aggregate instead. We computed what we'd already paid for the textured and gave them the additional money needed on top of that. All of this was agreed upon with the PB via email. They even agreed to charge us only $500 over the invoice for the work. We have this in writing on the email. After having initially paid them $3500, we gave them a check for another $3000 for the extra Rainbow Handseed deck. This total also included $900 to put in some 6x6 cedar fence posts for our pool fence. However well before this work was started we changed our plan for the pool fence also. They agreed to this and acknowledge we were due the $900 back.

Anyhow, things were OK for the most part until the deck company showed up a month later to pour the deck. We could not really tell at the time, but I suspected that what we recieved was not Rainbow Handseed aggregate. About another month went by with no work (only a steady stream of promises and excuses) and we got a card on our front door from the decking company, asking that I give them a call. Upon doing so, I was told they had not been paid by our PB according to agreed terms, had no luck at collecting, and would place a lien on our home if WE did not pay them immediately in full. Hedging, I asked them to figure out the best payment plan they could offer and call me back. I also asked for a copy of the invoice. This they agreed to do.

I called the PB and informed them of our problem. They gave some well thought out excuse, promised to take care of the payment, and also complete our job. The plaster crew was out the next week. I'd had advice to not let them plaster the pool until this lien business was settled, but I went ahead and did so anyhow. I figured I really needed that pool plastered as my biggest fear was getting stuck with a half-finished pool if they folded. Surprisingly, they did not ask for a check when they finally came out to plaster. About the last week in December we filled the pool. Speaking with them, I said I would only pay them more money if and when I saw lien releases from all the contractors. One of the owners agreed to this verbally.

A few more weeks went by and we decided to call the deck people. I had not heard back from them, so presumed they had been paid. I was astounded to hear they had NOT been paid, and was informed they had started lien proceedings against my house. They had initially promised not to do so without calling us back. I immediately asked them for a copy of the invoice, which they promptly sent this time.

Upon viewing it, I discovered that the TOTAL decking bill to the PB was only $3400. The material used was PEA GRAVEL (the cheapest form of aggregate), and the square footage poured was about 150 feet less than what we were supposedly to get. Now, I am not sure what happened here, and I know they have to get some sort of mark-up. But our deck does not look like other Rainbow Handseed decks I've seen, and the deck company did confirm that they indeed poured pea gravel. I can't be sure about the square footage, as I never personally measured the work. What I DO know is that there is a significant difference between what we paid for, and what the PB was charged for this deck. There is also a huge discrepancy in the material used and square footage poured. Of course on top of that the PB never paid the subcontractor. Again, we were assured we would only pay $500 over invoice for the total deck job (part of the initial offer was the deck AT COST since we were also building a cabana with them.) We have that in writing on an email.

Despite some issues (our spa leaks, one of our pumps installed was not of the type specified on the contract, and the deck was not properly grouted along the coping) the pool is pretty much complete. In fact, the contract states that it would be considered so at plaster.

Here's the main problem... PB now wants a check for plaster, irregardless of contractor liens, money owed to us for the deck etc. He is claiming that we will be in breach of contract, in fact is already claiming that we are, by not having paid the 5% for plaster when that job was complete. The payment terms are spelled out specifically on the contract. There is also a lot of other nasty contract talk about how they can come and take back our equipment without asking permission if we default. There's not much in there about their obligations other than a statement that PB will supply all liens for subcontractors and/or material used.

My fear is paying these people, and them not paying the plaster people. Not to mention the fact that they haven't paid the deck people, OR that they owe us MORE money for the deck they overcharged us for than the amount of the final plaster installment. I feel like we are thrashing in water as I don't know the legal ramifications of what I am doing. I recieved this call today at 4:00pm, and plan to finally consult a lawyer on Monday. But PB will probably come by the house Monday, so a meeting will undoubtably take place.

My wife and I have been tempted constantly with reporting them to the BBB for BOTH jobs, and will probably do so now. But I also feel I need to get a lawyer's help too. I'll be looking for one on Monday, or maybe researching small claims. But what chances do we have if they declare us in breach of contract and try court action? Does the fact they have not paid their contractors (and we have lien threats against our home) make ANY difference? How do I find out if there IS a lien placed against our house? Even though the additional deck work was not included on an official contract amendment, can that money they owe us play a part? What do we do? Pay them or fight it out in court? I am most assured PB will threaten legal action and also lien action on our home and pool equipment if I refuse plaster payment next week. I just want to be ready for him.

I am DESPERATE, and am counting on the good will I've seen from many of those who serve this forum with their knowledge, expertise, and, most importantly, their experience. I thank those in advance for taking the time to read this lengthy diatribe, and for whatever assistance they may render to my family. I do not trust these people, and honestly feel that if this goes legal my property, home, and welfare of my family will be at stake. I'm willing to fight for what's rightfully mine, but the legal experience and knowledge I need is beyond my scope right now.

With thanks,

Mike

[CarlD]

I'm not a lawyer but I suspect if you inform the PM they are not to step foot on your property, if they do so to take back equipment, that would be criminal trespass and theft.

If they are under contract entitled to get back the equipment then their proper route to reclaim it must be through the courts. Your contract may SAY they have the right of access, but I don't think that the civil law (the contract) supercedes the criminal law (barring them from your property). If you deny them access, they have LEGAL recourse to sue you, but they just can't come and take stuff--they have to establish that they are legally entitled to it and have the court award it to them.

But it really looks like you need a lawyer who specializes in this kind of dispute.

Contractors toss out legal threats because they can usually bluff the homeowner. The con does this everyday, the H/O doesn't (been burned once) so the H/O can be intimidated, especially with "builder's liens" and other threats.

"I've had my law firm review it and you have to do such and such..." is very typical first-volley bluff. Sounds good, but it's most likely another attempt to intimidate you. Of course, it may be real, but since this is a big job, a BIG cost to fix, you need proper legal advice.

Find a good lawyer and do what he/she tells you. Or expect to lose more money and not get the job you want.

Sorry to be blunt, but I call it the way I see it.

[Strawfoot]

Carl,

Thank you very much for your reply. I'm very interested in your comments vis a vis civil law vs. criminal law. That worries me, that the contract says they can just show up unannounced and start ripping out my pool equipment. I can very easily see the PB threatening to do just that.

I'm a serviceman, and I have an appontment with our JAG tomorrow morning at drill, 8:30am sharp. Even if he cannot guide me in the exact direction, maybe he can refer me to a good lawyer who specializes in this type of matter. I have no problem paying the money to a lawyer, I just want a good one.

My wife and I have learned a valuable lesson, and I realize we could be a lot worse off. I've heard stories of some people being stuck with just a hole in their backyard. We at least have a nice pool in our backyard. In fact, I could even settle on the matter of what we overpaid for the deck. What I can't settle on is the PB not paying the contractors, who then place liens on my home. I feel backed into a corner, with no choice but to fight.

Again friend, thank you for your input. We are in North Texas, if anyone out there has experience with a good lawyer in this area please tell us!!!


Mike

[ehorn]

Mike,

I'm sure you have meet with some legal counsel already but I know that depending on where you live hopefully you have some laws passed to help protect you. I know here in the state of AZ only a company you have a signed contract with can put a lein on your property. I had this issue when my orginal builder went under and the steel company tried to put a lein on the property. They just scared us with a preliminary notice but legally could not put a lein on the property. Doing so could in fact fine them up to $20k which is not worth their effort for a job that costs $1.4k.

I would say that by the builder not paying the subs for the work and them pouring the wrong deck that they are in breach of contract so they would have no right to say you are breaking the contract. They also have no right to trespass on your property and take the equipment, I've also heard of contractors switching out equipment when you're asleep with cheaper or broken stuff so be warned as well. Lock all your gates.

Oh I also did loose my contract with the builder but their staff mailed me a copy back. If yours looks like they messed with it, go to their office and review the orginal copy. You have every right to review any records they have on you or your pool. Also look into if your state has a seperate licensing board for contractors. If the contractor has to carry a license then you can make a formal complaint with that department.

Eric

[Strawfoot]

Thank you Eric. Today we meet with the lawyer to draft a letter saying they've violated the Texas Deceptive Trade Practices Act, because they never informed us there was a difference in what was poured into the deck and what we paid. We overpaid on the deck by about $1600, plus another $900 that we paid for a fence they did not put up. Deck was poured in November.

I am not sure if the decking company has ACTUALLY placed a lien against our home, or if they were just threatening to do so. I'm going to check on that today also.

Wish us luck!


Mike

[chazas]

I had a similar situation with the last pool I built.

The contractor arranged for plaster, but the plaster job was bad, and he hadn't finished several other things. I had trusted him with a "final payment on day of plaster" clause but I refused to pay more than half of the full amount until the problems were fixed. He went ballistic.

The next day he showed up with the police to try to remove the pool equipment from our yard, as per the kind of language you're talking about. When he told the police we were holding "his equipment," they thought he meant his tools and construction equipment. When we pointed out that it was installed pool equipment for which we had already paid, the police (somewhat chagrined) backed off. We told the police we were willing to pay half of the remaining amount and the other half as soon as the problems were fixed - I actually had the check in my hand. The builder refused.

Of course, he had to take us to court to try to realize on what was, effectively, a security interest in the equipment. He didn't hire a lawyer up front so he filed the wrong kind of lawsuit - which as a lawyer I was able to recognize and promptly remove it to a more senior court with a much more expensive, and longer, litigation process. He also failed to file a mechanic's lien, so I published the required notice of completion and when the time period was up he couldn't do that. By the time he actually consulted a lawyer it was too late.

After over a year we settled and he only got part of what he wanted. He never did finish - we had to hire someone else to do it.

The moral of the story is, consult your lawyer, listen to what he or she has to say, and don't be bullied. The contractor can't just show up and start removing pool equipment. You can have him arrested for trespassing if he does so without a proper court order.