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Discussion Forum

AWOL Contractor…

oldeblue | Posted in General Discussion on July 30, 2004 10:01am

I have a signed contractor with a company to clear a lot here in Texas, where I will be building my first spec house.  I paid him 25% up front, and he has completed about 30% of the work.  He then called me and asked for more money because some of the trees would have to be topped by a climber.  I read him my contract, which said “… the removal of all trees and brush…”.   Now, he is AWOL and will not answer my calls or return my messages.  The contract does not have date limits, but I feel like he is in breech in contract.  How long should I wait before I get someone else to finish the job?  Am I being unfair here?  I mean, we walked the property twice before signing the contract.  Other than taking pictures of the work done so far, how can I protect myself from any potential claims from him?

Thanks for any advice,

oldeblue

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Replies

  1. User avater
    RichColumbus | Jul 30, 2004 10:18am | #1

    There are trees in Texas?  Where? LOL (jk)

    No, you are not out of line, and it sounds like you have a case of bidder's remorse by the clearing contractor.

    Contact your lawyer about the time frame and how to cancel the contract.  There should have been a time frame within the contract and there should have been a breach clause.  If it is not spelled out... best to get advice from someone who well versed in contract law.  Shouldn't cost you too much to get this kind of answer.  It is probably as simple as sending him a letter stating that you expect the work to be commenced by "x" date and completed by "y" date... but again... check with your lawyer.

    Take pics and get statements from anyone who is familiar with anything to do with the situation, no matter how insignificant you think it is.  Document all phone calls in a log.  Document every action you take.  Document, document, document!  Do this to prevent faulty memories from hampering any future problems.

  2. MisterT | Jul 30, 2004 02:10pm | #2

    AWOL?

    From Texas?

    You gave him $$ up front?

    Is his co. Georges tree and Bush removal??

    Check the local crack houses.

    Call him and tell him there are Weapons of mass destruction burried on your lot!

    There will be an airstrike within the hour!

    Who said I couldn't turn any thread into a political bashfest???!!!

    Ok now you conservatives can blame it on Clinton!!!

    :)

    Mr T

    Happiness is a cold wet nose

    Life is is never to busy to stop and pet the Doggies!!

    1. DavidThomas | Jul 30, 2004 10:13pm | #7

      "Is his co. Georges tree and Bush removal??

      now (someone) can blame it on Clinton!!!"

      "I never had a contract with that, that man!"  (while waving finger in air)David Thomas   Overlooking Cook Inlet in Kenai, Alaska

  3. Piffin | Jul 30, 2004 04:32pm | #3

    Send him a letter - registered or certified, reciept requested.

    State in the letter that he has failed to make satisfactory progress in ____days towards completion of the agreed work and that he has not been available for contact by phone.

    Then state that if the work does not re-commense in accordance with the agreement within ten days, you will consider him to be in breach of contract and fond another contractor and consider him to have forfeited any claims in connection therewith.

    If he stilll has equipment on sitre, that could be another sticky wicket.

    And the above advice is not from a lawyer, just a savy contractor.

     

     

    Welcome to the
    Taunton University of
    Knowledge FHB Campus at Breaktime.
     where ...
    Excellence is its own reward!

  4. User avater
    CapnMac | Jul 30, 2004 06:26pm | #4

    Welcome to BT (some replies may be better than others <grin>

    I have to ask, "Where in Texas?"  Hill Country different than Piney Woods different than Panhandle different than . . . .

    I second (or 3rd, 4th, whatever it's up to now) the recommendation to counsult with an attorney.  (You'll want one with construction experience, if possible.)  You'll need to answer the same questions I have.  Like was it a crading/dirtwork contractor with lot clearing experience?  Did the contract include liens?  Are there performance/completion bonds?  Is there any othe language other than the "remove all trees and brush"?

    Like as not, he's bailed on you--so the contract may now be void (subject to interpetation by legal types).  It may not be.  if it isn't and this guy goes on some other job with no insurance, bonds, etc., and gets sued professionally, any liens on your property become attachable assets of his (or not, two lawyers will likely have three opinions on it . . . )

    Reputable dirtman should have eyeballed the site to know if he needed a tree guy to clear it before signing a contract.  Especially if there are complication like powerlines or the like to interfere with removal.  Or if a tree can only be removed by dropping it on a neighbor or the like.

    Right now, you are not too bad off, you got 30% of the work for around 25% (which, as with any contract or contractor change, will cost more in the end).  You probably should start shopping for someone to do the job from where it sits now.  Even if you could legally force the first guy to finish--would you want to?

    Hope that helps.

    Occupational hazard of my occupation not being around (sorry Bubba)
    1. UncleDunc | Jul 30, 2004 08:34pm | #5

      >> Right now, you are not too bad off, you got 30% of the work for around 25% ...

      Which is almost certainly why the contractor bailed. He bid too low, got behind, found out the customer wasn't going to roll over for him, and decided he wasn't ever going to catch up.

      I wouldn't worry too much about claims from the contractor. It sounds like he would rather just fade away than start a struggle about anything.

      1. Piffin | Jul 30, 2004 10:08pm | #6

        I woldn't worry either, but I would definitely write and send that letter announcing the termination to avoid future problems.

        This reminds me of the scene Wiley had in CA last year where his plumber was a lte show on rough-in so he got it done on his own and then got hit with a bill/lawsuit from said plumber for balance of payument that he hadn't even done. 

         

        Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!

        1. maverick | Jul 30, 2004 11:33pm | #10

          I believe in legal terms that is called an eight day letter. If he does not respond to the letter within 8 business days of reciept he has legally abandoned his responsibilitys. Make sure to send it certified mail.

          1. User avater
            rjw | Jul 31, 2004 01:19am | #11

            FWIW, Laws and customs vary from state to state.

            I hadn't heard that term where I practiced, but it may well be common in a range of other places.

            "It is as hard for the good to suspect evil, as it is for the bad to suspect good."

            -- Marcus Tullius Cicero, statesman, orator, writer (106-43 BCE)

          2. Piffin | Jul 31, 2004 03:17am | #12

            I heard it clled something like a reasonable notice o default, meaning essentially what bob said, tht he ha s a reasonable amt of time to respond with actions to defend any claim or interest 

             

            Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!

        2. User avater
          Wayfarer | Jul 31, 2004 07:34am | #13

          This reminds me of the scene Wiley had in CA last year where his plumber was a lte show on rough-in so he got it done on his own and then got hit with a bill/lawsuit from said plumber for balance of payument that he hadn't even done.

          Piffin's right, and I wasn't going to rehash the whole ordeal here, but just be broad about my experience i.e. give proper/legal notice.  That was the stickler for me, and had I done that, I bet the guy would have shown up to do what he was suppose to do by "industry standards" and not on his terms, leveraging me because I was an owner-builder. 

          Update: I did appeal the judgement this past winter after getting back from Australia in January (my stucco contractor who is also a general offered to come with me as an "expert witness") and it was reduced $1000 (I think I owe him like $1750 or something now).  Yeah, anyone is free to read me the riot act, but I haven't paid the guy, and no, I don't feel like such a slouch; I suppose someday I may have to pay him or my heirs will.

          I saw him and his wife in the local Safeway a couple months ago; it was like, "Hey Wiley, how ya doin', how's the house coming along blah, blah, blah?"  "Fine Rick, thanks," I replied.  I think some here know he is neighbor of mine down the street.  I don't know what his game is, but I wonder if he even told his wife of this whole ordeal.

          What kind of pisses me off is that yeah, he got a judgement, but perjuried (sp?) himself, especially in the appeals court on three accounts:

          1. He stated he was on my site working for ten days (hell, the subfloor joists were only just completed the weekend before he started, and he completed the subfloor plumbing in four days of work--this he was paid for).  I had documented all activity on my job in a hard-bound log/journal.

          2. He stated that he was on my site on such a date and that the roof and sheathing were not completed (the reason for the start of venting through the roof and my giving him a heads up weeks in advance).  Really?  I held up my permit in court where the building inspector had signed off my roof inspection on that very date that the plumber said he was on my site (so as some of you know, you gotta imagine the roof was even completed a day or two before the actual inspection--I certainly didn't have my work done and inspections that close, like within an hour or two of finished work and inspection, it was at least a day, and sometimes more in advance).

          3. He stated that when he finally showed up (probably driving by my house to see that the vents were through the roof) three weeks later after me calling him repeatedly, that I supposedly said, "We would work something out."  Like what are you talking about?  He also said in the same breadth that even though he did and was paid for the subfloor portion of what he outlined in his contract which amounted to about 40% of the job, somehow, by magic, he actually completed 75% of the job.

          Anyway, it's water under the bridge now, I'm doing finish work now; hope to finish up two bathrooms with paint and setting fixtures this coming week.

          As a sidenote: My stucco general contractor insisted that before he would come to appeals court with me to help me out, I file a formal complaint with the contractor's board of CA.  This I did, went to court, and by the time the contractor board followed up, it was out of their respective hands as there was a judgement in small claims court--against me.  The woman that I worked with on the claim at the board just joked that a civil judge, especially in small claims, has very little experience in construction procedures and practices.  C'est la vie.  Anyway, the contractors board supposedly gave him a warning to the way his contract was written; they would not provide that warning (written I am assuming) to me.

          But overall, this has been a great experience, I would do it again, and as somebody wrote here, you gotta strike the judgement up against me as "tuition" for doing my own GC'ing.

          I hope everyone here will be ready for my cyber-open house!!! ;-)

  5. mike4244 | Jul 30, 2004 10:31pm | #8

    He missed something when he walked the property. I would pay the extra money for a climber if the amount is reasonable. He may need a climber for one or two days, shouldn't be expensive.

    mike

  6. User avater
    rjw | Jul 30, 2004 10:33pm | #9

    How much are you talking about? How long since he tried to up the price?

    Unless we're talking mega bucks, you probably don't need to talk to a lawyer.

    As others have noted, send a registered letter, signature and return receipt requested, stating the events to date and stating that unless he contacts you within X number of working days (the longer the more reasonable you look, but you can't be expected to just sit around too long with your thumb inserted where the sun don't shine, either), you will consider that he has abandoned the contract and that you will arrange for the job to be finished by another contractor.

    You could also throw in that he will be responsible for any damages you might incur by result of delays in the project or higher fees having to be paid to such other contractor who finishes the work.

    OTOH, that might actually spur him into action and you don't really want to have the work finished by someone who has bid low and is now pizzed.

    Because the contract is silent as to time, if it actually went to court the courts would find an implied "reasonable time" for him to have performed.

    If, by any chance, a court found that you had breached the contract by haing someomne else complete it, though, the first guy wouldn't have much in the way of damages: he's not out much. The only loss he could argue would be lost opportunity costs, (if his crew was sitting around with nothing to do becasue of your "cancellation")and if you've given him reasonable time to contact you and arrange to finish, he doen't have much of a claim there. (And he would never have a claim for lost profits.)

    I am not a lawyer, and I don't play one on TV. (I _was_ a lawyer, but I practiced NY and PA banking law; I've forgotten 1/2 of what I knew; and I have never known anything about Texas law, other than I have heard it claimed there is law in Texas {G})

    As much as I am tempted to swell the coffers of some Texas lawyer, I don't think you need one, unless, as I said, we're talking some significant money (say $10,000+)


    "It is as hard for the good to suspect evil, as it is for the bad to suspect good."

    -- Marcus Tullius Cicero, statesman, orator, writer (106-43 BCE)

  7. oldeblue | Aug 06, 2004 08:38pm | #14

    Thanks for all of the advice.  You guys have been a great help.  I will send him a certified return receipt letter.  I have already begun getting bids on the remainder of the work.  As Wiley said, if this ends up costing me more money, I will just have to consider it tuition.  Hopefully, by reading this forums regularly I will learn from other people's mistakes instead of repeating them.

    As far as the contract goes, I now realize how woefully inadequate it was.  I will be writing my own standard contracts from now on.  Can any of you guys post your standard contract that I could use to help me create my own?

    I don't expect to completely eliminate AWOL contractors in the future, but I would like to limit the time wasted waiting on them to show up.  I think a solid contract would allow me to avoid at least part of such delays. 

    Again, thanks for all of your help.

    John

    1. FastEddie1 | Aug 06, 2004 09:10pm | #15

      Hopefully, by reading this forums regularly I will learn from other people's mistakes instead of repeating them.  Maybe, maybe not.

      There is a book with cd titled "The contractors legal kit" by Gary Ransone, pub by Journal of Light Construction.  Go to the JLC website and check it out.  It contaions several sample contracts.

      Whenever you are asked if you can do a job, tell'em "Certainly, I can!"  Then get busy and find out how to do it.  T. Roosevelt

    2. User avater
      rjw | Aug 06, 2004 11:53pm | #16

      Having practiced law for a number of years, I can assure you that the business lost to the contract review types is more than compensated for by buisness picked up by the litigation types.

      Those litigation guys love it when folks decide to DYI their legal work.

      There is an old expression: the lawyer who represents himself has a fool for a client.

      Even more apt: "the non-lawyer who represents himself ...."

      "It is as hard for the good to suspect evil, as it is for the bad to suspect good."

      -- Marcus Tullius Cicero, statesman, orator, writer (106-43 BCE)

    3. Schelling | Aug 07, 2004 12:18am | #17

      The certified letter is fine but how about a phone call to the guy to ask what has happened? If you give him the chance now to get out of the contract, he might jump at the chance and you can walk away from a bad deal with no hard feelings. I live in a small town where you run into people a lot and if you can salvage a relationship it will pay you back in time. The guy may have a lot to learn about how to run a business and you can give him a good lesson by being direct with him but also by giving him an out.

      1. DougU | Aug 07, 2004 01:01am | #18

        Also you don't incur needless legal expenses!

        1. User avater
          rjw | Aug 07, 2004 02:34am | #19

          Don't forget to read the earlier messages where the AWOL contractor issue was discusssed.

          "It is as hard for the good to suspect evil, as it is for the bad to suspect good."

          -- Marcus Tullius Cicero, statesman, orator, writer (106-43 BCE)

          1. DougU | Aug 07, 2004 03:22am | #20

            Bob

            I did read the entire thread, I was responding to the post right before mine.

            The poster mentioned a call to the contractor, seeing if it could be resolved. My comment was that if it could be resolved with a call that there wouldn't be unnecessary legal fees!

            It was just a quick, off the cuff comment on the "call to the contractor" I don't have any legal experience, well except for unrelated troubles from my misspent youth, but those don't really apply here!

            Doug

          2. FastEddie1 | Aug 07, 2004 05:21am | #21

            Dougie ... I thought your comment was a good one.  Both sides could cut their losses and move forward.  Save face, save money, save time ... what else do you need?

            Whenever you are asked if you can do a job, tell'em "Certainly, I can!"  Then get busy and find out how to do it.  T. Roosevelt

          3. User avater
            rjw | Aug 07, 2004 01:16pm | #22

            OK

            "It is as hard for the good to suspect evil, as it is for the bad to suspect good."

            -- Marcus Tullius Cicero, statesman, orator, writer (106-43 BCE)

      2. Piffin | Aug 09, 2004 04:34am | #25

        I always like the idea of dealing face to fce first, but in the first post, " Now, he is AWOL and will not answer my calls or return my messages."

        Thus the request for further advice posted here. 

         

        Welcome to the Taunton University of Knowledge FHB Campus at Breaktime. where ... Excellence is its own reward!

  8. superwork | Aug 07, 2004 03:53pm | #23

    See what kind of money he's talking about first . If it's not much it will keep your job going . If it's alot of money , Take Piffins advise.

  9. ClaysWorld | Aug 07, 2004 08:03pm | #24

    How bout going on the offensive and putting in a claim in small claims against him. Damage to the project scedule added costs, loss of love life opps that was cause of the hooker.

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