To make a very long story short- I was hired to design a whole house renovation, and to oversee construction. The schedule was very tight, but I found 3 qualified contractors to estimate the job (our intention was to do the work cost-plus). The owners hired the middlle to low bidder (apples to oranges comparing bids). Contractor was a nightmare, no supervision of his crew, different people showing up every day, total disregard for the drawings. I had to spend more and more time on site trying to keep project on track. Advised the owner to consider firing the contractor, but informed him of the delay and hassle in finding someone else to take over.
As the deadline to move in came and went, and the work was still not finished, I volunteered to help finish a bathroom myself so they could move in. I did the work and they stiffed me for the payment. I sued them for 15k and they countersued me for 200k. The thrust of their suit is that I am responsible for every mistake the contractor made.
The owner and I had no written contract, but the owner signed the AIA contract with the contractor, which named me as the architect and stipulated my role.
The question is: Does anyone have specific experience with being held responsible for the contractor’s mistakes. No one is claiming that anything in the drawings was wrong, they are saying it’s my fault for permitting bad work to be done, even though I fought with the contractor tooth and nail and repeatedly warned the owner that the work was defective.
Replies
I'll say it first...it will go to documentation? Do you have written documentation of notifying the HO that the contractor was sub-par?
Yes, the client was big on email- over the course of a 9 month project we exchanged over 300 messages. I sent them at least 10 long emails detailing the contractors failings and offering strategic options. I also sent them copies of a series of letters that I sent to the contractor. I should also mention that there was not a single negative message from them to me about my performance during the entire project, only after I sued them.
I'm no legal expert, and I'm sorry to say it, but I'd say you're screwed.
Without a contract to define your responsibilities, you're going to have a problem defending what took place, and who was responsible for it. Granted, the owner had a contract with the contractor, and that should take precedence, but you presented yourself as the "expert who would guide the "nexperienced, unknowledgable owner through the process." (the lawyers talking now). Of course, the owner will need to substantiate how their grief is worth $20k, but they've got a better shot at doing that than you do at proving that you're owed $15k for the bathroom work, done without a contract.
Two questions:
1. What state are you in and what are the contractor licensing laws there? Please tell me you aren't in California....
2. As an architect, what could possibly have caused you to perform your services without a contract in the first place? Isn't that one of the first things taught in 5 long years in archy school?
Bob
This is just an uninformed opinion based on my own frustrating legal experiences, but I don't think you're going to win. Even if you win you lose. Legal fees, depositions, filing fees, stall tactics and the usual legal mumbo-jumbo. They owe you $15K. The chances are that it will cost you more than $15K to defend against a $200K countersuit. If you settle now, abandon the $15K and they agree to never sue, you may be money ahead. An unpleasant prospect, but in my experience our legal system has almost nothing to do with justice. It mostly functions based on who has the slick lawyer and the most cash.
lighthouse.. were you the "designer".. or were you the "architect".. if you were the architect, are you licensed as an architect?
do you live in a state that requires and defends architects ?
if you were the architect, what was the basis of yor fee? design only.. or design & supervision....
how did you get paid ?.. did you act as Construction Manager ?
how could you do this work and get paid without a Contract, either formal or informal ?
why did you sue them for non-payment, was that the last resort ?
their countersuit trumps your bathroom , huh ?.... what state did the work take place in..Mike Smith Rhode Island : Design / Build / Repair / Restore
The project is in MA.
I'm a designer,not an architect, but was named as the "architect" on the AIA contract between the contractor and the HO. I made it very clear to the HO that I was not an arch.
I had a verbal contract (it's worked for me for 30 years)for design and supervision, and I bill on retainer, so I never do work that hasn't already been paid for. The part I sued for was for the construction work I did as a last resort to help them move in.
I sued because the HO started making changes to the bathroom, after he told me it was urgent to get it done yesterday. I said I wanted to get paid for what I had done first before I would make changes, and he said screw you. I'll never understand whey he turned on me instead of the contractor, but I think it was because he was more scared of the contractor. He was very angry about the way the whole project had gone, and wanted to fight with someone.
I'm considering having the phrase "no good deed goes unpunished" tatooed on my forehead (plenty of room there) so I will see it every morning
He probably turned on you rather than the contractor because he knew he had no contract for you to fall back on.
As far as being named as the "architect" on the contract, I hope you crossed out the word "architect" on the contract- that's a little thing called "misrepresentation", which will surely be brought up in court if you're unfortunate enough to end up there.
I'd agree with whoever said to cut your losses- you'll be in for far more than $15k defending yourself in court.
Bob
>>As far as being named as the "architect" on the contract, I hope you crossed out the word "architect" on the contract- that's a little thing called "misrepresentation"
Only if he was a party to it. Sounds like he wasn't.
_______________________
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Your mileage may vary ....
i can't design for anyone to build from other than my own company.. i have clauses in our design contract that states they cannot use the drawings for construction by anyone else.
you have no "Change Order" for the bathroom work... so you're probably DOA on that one..
when you say " i sued him " does that mean you hired a lawyer and filed suit, and then he countersued you ? if so, what does your lawyer say ?.....or did you file suit in small claims court on your own ?
i'd go back to your lawyer and find out what the worst case is ....and also what the cheapest way to make this go away forever is going to be...
look in the business section for the thread " arbitration / mediation"... those are good discussions for future considerationMike Smith Rhode Island : Design / Build / Repair / Restore
I'm not sure why you sued him. Doesn't MA have a mechanic's lien law that allows you to lien the property if not paid? Do you have to be a contractor there to do so? Are you a contractor, and does MA require that to do the bathroom you did?
I assume you mean that you filed a civil action against the owner, since $15K is above the small claims threshold in most places. Hopefully you have an attorney who reviewed EVERYTHING and advised you that a suit was almost certainly winnable. Is that the case? Have you been advised clearly and completely on your responsibilities and liabilities as a result of the AIA contract?
I'm not familiar with the law in MA, but as I look at it you are not in bad shape. Remember that people can and will sue for no reason at all and the Court will not stop them from making the claim. The HO is likely trying to get you to consider the suggestion made above and let them not pay you because they are annoyed with the project as a whole.
You can sue for your 15k and claim the verbal contract, which may or may not be allowed where you are. Even if it is not allowed, you can claim quantum meruit, or reasonable value for the services performed. A Court is not likely to let a HO not pay you anything if they agreed to your work. If you have emails to that effect even better. This is a separate issue that the counter-claim.
As far as the counterclaim, the HO would have to prove damages, materials labor etc caused by you in that amount. Frustration and emotional damages are usually not recoverable. Delay alone is also not usually recoverable unless it caused some other damage. They would have to prove that the contractor was acting as your agent or employee or that you specifically agreed, contracted, to be responsible for the work of the contractor. Who did the hiring and paying etc would all play a role. I don't know if there is a specific law in your area that cover GC's or construction supervisor's so I can't comment on that. Again, if you have emails or other documents that say the opposite that would help. As you said, if you made recommendations, but the HO did not follow them it would demonstrate that you did not have control over the contractor and therefore did not agree to be liable for them. They obviously had a contract with the HO.
Time and costs would certainly be a factor in your decision. Court costs are not much, but legal fees are.
I am assuming that you did not sign the AIA contract listing you as an architect. Is that correct? I would hope that you also have the fact that you are not an Architect in writing and disclosed as well.
Just some general initial thoughts for you.
Tom
Never worked on any litigation stateside but most general rules apply on both sides and I don't think that your case isn't worth persuing.
The countersuit is just "the best defence is a good offence" attitude and doesn't fool too many courts. It seems reasonable to assume that if the homeowner had a legitimate claim for $200,000 he would have filed immediately and not only done so as a defence for not paying you.
No one can deny that you actually did the work in the washrooms and therefore you should be entitled to fair compensation for that work.
Given that there were several hundred emails and various correspondence during the course of the project, the attitudes and issues were well documented.
My gut feeling is go for it.
Gabe
I'm a lawyer in NY, so I can't give you legal advise in MA and am not doing so. The only legal advise I can give you is that you certainly must get a lawyer to represent you in this, or you will probably manage to snatch defeat from the jaws of victory. Yes, you will spend some money on legal fees, but you have no choice in that regard, since you otherwise risk matters going radically wrong for you. The AIA reference does not bind you; you weren't a party to that agreement and did't sign that agreement. But that could be a useful admission by the owner helpful to you, since the AIA forms do not impose liability for acts or omissions of the contractor on the architect. They are designed to exonerating architects, since the forms were created by the American Institute of Architects, a trade group. I am relatively sure that in informing the owner of what was (or was not) going on, you satisfied the requirements for the architect under AIA, which is not how you defined yourself, but how the owner defined you, and your lawyer will want to try to make the owner live with that definition, at least concerning the scope of your duties. I'd incorporate that agreement, the AIA standards, the e-mails demonstrating that you fulfilled your duty to advise the client, and move to dismiss the counterclaim -- which is probably there largely to bluff you out of collecting the 15K. True, this will all cost money, and your lawyer, able to review the whole matter, may well advise you differently.
So you'll probably spend some money, and you can chalk it up to tuition. Written agreements are essential. People have different understandings, expectations, and recollections, and do themselves no favor by "avoiding the hassle" of putting a written agreement together. Failing to do so is no different from not bothering with the hassle of putting on safety equipment: its time consuming, cumbersome, expensive, but might just save your ####, so why not just get used to using it? You'll find it cheaper to have your lawyer draft a form agreement you can use, that specifies your duties and those of others and keeps you from getting into this spot again.
>The AIA reference does not bind you; you weren't a party to that agreement and did't sign that agreement. But that could be a useful admission by the owner helpful to you, since the AIA forms do not impose liability for acts or omissions of the contractor on the architect.
What Pertz wrote is what I was thinking, too, but I did learn something via his second sentence. I like that--you can't be held to it be/c you weren't a party to the contract, but damn if you can't use that to identify his expectations. Neat trick.
I, too, have not been comfortable with contracts. But I'm forcing myself to be, and finding myself a lot happier be/c of it. Instead of worrying about the what-if's, my contract covers all my attys could think of, plus they gave me a good lecture on the limits imposed by the state on what I could and could not do, and relying on that allows me to focus on my job. Now I'm at the point where I won't do work without one and I won't start the next stage without payment from the prior. Feels more professional, and everyone's happier knowing the rules and the boundaries. Your story convinced me further, just in case I needed more convincing. Thanks for sharing. I hope it turns out well for you. Please keep us posted.
"I was hired to design a whole house renovation, and to oversee construction. The schedule was very tight, but I found 3 qualified contractors to estimate the job (our intention was to do the work cost-plus). The owners hired the middlle to low bidder (apples to oranges comparing bids). "
Why didn't you tell the HO that the guy you recommended gave an "apples to oranges bid" and you can't be responsible to oversee someone like that.
You were hired to oversee construction. You parade 3 contractors in front of the homeowner. They picked one. Sounds like their part was done and the rest is on you.
thanks for the reply. re "
Why didn't you tell the HO that the guy you recommended gave an "apples to oranges bid" and you can't be responsible to oversee someone like that.
You were hired to oversee construction. You parade 3 contractors in front of the homeowner. They picked one. Sounds like their part was done and the rest is on you."
what I meant was that the bidder they hired may or may not have been the low bidder, because there was clarification needed from all the bidders as to exactly what they were including. I did provide the HO with a spreadsheet that compared the bids, as well as advice re their references, type of organization, etc.
I'm not sure what you mean by "the rest is up to you" I made every possible effort to inform the contractor and the owner about mistakes that were being made, and advised them not to pay in various cases. What other control over the contractor do I have, since I have no contractual relationship with them?
Architects normally carry the liability but others are held responsible for following the specifications. Everyone has a contractural agreement written and held to it although everyone knows there can be contingencies. Working without a written contract is a no no and illegal in some states if the job is over $1500. That's why the architects get the big bucks. Always try to negotiate before taking it to the extreme. Most contracts have a clause that sugests mediation for disputes before people get mad and call the lawyers. You may have to compromise and swallow some pride but it is much better than going to court.
I didn't read everything, but did you have a separate contract for the actual work you performed? I think when your scope of work changed another contract should have been written. I think, pray, and hope that you come out of this okay because I am in a similar place when I do design side work. I have just always had good clients, but thanks to this place I will be a lot more careful. I think that your work for the AIA contract will hold up due to your good documentation during the CACO. Since all the permits etc. do not have your name on the documents, I do wonder where the client produced a figure of 200k.
Dan
He didn't even have a contract for the design and supervision work- what makes you think he had a contract for the construction work he performed?
I'm going to stick my neck WAY out here in an attempt to give you a little leverage. I'm in California and I realize the laws are probably different in MA. (I think that's where you said you were.) Here, if you do construction work and are not licensed (and the value of the work is more than $500) then you are legally the owners employee. No exceptions. If that is the case in your state, or you can reasonably make the claim that you were an employee for the construction portion, your client had responsibilities for providing workers comp insurance, payroll tax withholding, etc. and could be in BIG trouble if this was not done. Might give you a little extra leverage in your negotiations. Just a thought. I'm assuming you're not a licensed contractor, of course.
Edited 11/22/2003 10:23:16 PM ET by Richard
Two options to look at;
If your state has a contractor licensing statute, then it will most likely have a provision requiring the naming of the person who shall be the supervisor of the work done by that contractor. It will then most likely have a provision that the license is only good if the person named as supervisor actually supervises the work. The provision will probably read that the contractor can engage in business pursuant to the terms of the chapter. Courts have consistently ruled that to supervise the work the supervisor must be at the job site. If the supervisor did not show up as you claimed, then the license would be void for that job and consequently any contract between the owner and contractor would be void. In general, contractor licensing laws have a provision requiring notification to the Registrar of Contractors of the disassociation of the person named as supervisor in the application process. Disassociation is proven by failure to show up to supervise.
Read your states criminal statutes regarding theft. In the state where I live, to accept services known to be available only for compensation wiyhout paying constitutes theft. The value amount determines whether it is a felony or misdemeanor. In either case (felony or misdemeanor) it is then up to the attoney general to prosecute. But it is up to the victim to seek prosecution by the appropriate channels. The good part is that you do not have to pay for criminal prosecution.
still peddling your nonsence , huh ?Mike Smith Rhode Island : Design / Build / Repair / Restore
This is starting to get wierd.
Sounds like that bathroom work should have been done on a retainer, too.
Are you an attorney? I would hate to differ with somebody who knows what he is talking about, but my limited experience with something like this leaves you looking mis-informed.
First, a good third of this fine country does not require licensing to do most of this trade work. In those few that I have worked in where licensing is required, the nomination of a supervisor is not part of the process. It would appear that you are taking from a limited specific and promulgating it over all fifty states rather carelessly.
Further, if your legal theory will void a contract, that contract only existed between the owners and the builder and not between the owners and the originator of this thread who was in a different form of service to them. none of what you said seems to appply to his situation, in my mind. Maybe you can turn the light on.
Finally, the type of theft you refer to has as a prime requirement to prove criminality the intent to defraud. Without a way to prove intent, there is no way a DA will attempt to take a case like this to court.
But supposing that he did, and won, and the homeowners were found guilty and puniushed according to law with fines or imprisonment, how would that help our freind who asked the questions about getting paid or avoiding suits?.
Excellence is its own reward!
You are correct that not every state requires contractor licensing. Instead of making a sweeping generalization, I will give specific examples of state requirements that I am certain of.
I live in Arizona. Arizona has a reciprocal agreement with California, Nevada, and New Mexico to honor each others licenses. Erch of those states has as part of its licensing process a requirement that the individual, partnership, corporation or otherwise designate the person who shall be the supervisor of the work. The person so designated is the person who takes the examination to qualify for the license. Each of those states has a provision that if the designated supervisor disassociates from the licensee, then the license becomes void unless another designated supervisor qualifies for the license by meeting certain requirements and passing an examination.
In addition, the Supreme Court of Tennessee has stated that it would be unconstitutional to require an examination of those persons in a contracting business who were not supervisors. The Court used this example. Suppose two men formed a partnership in a plumbing contracting business. One man simply oversaw the partnership's finances and the other man was a master plumber. The Court stated, and cited other decisions, that it would be unconstitutional to require an examination of the one who merely oversaw the finances. To obtain the plumbing contracting license, only the master plumber who supervied plumbing could be required to stand an examination.
See State ex rel. Grantham v. City of Memphis, 151 Tenn. 1. You may read this for yourself.
I'll take your word for it, but now go to application - how does this help our freind even if he lives in such a state?
A contract between owner and builder that gets voided does not help the designer and supervisor get paid for his work. It has nothing to do with his separate arrangement..
Excellence is its own reward!
There are two types of contracts - express and implied. Express contracts are either written or verbal. A large portion of this thread has been whether there was a contract to be sued upon. If there was no express contract - either verbal or written - then the contract was implied. Assuming there was no express contract, the implied contract can be sued upon.
As for the countersuit against him, not enough information has been posted to prove he was responsible for work done by others.