How appropriately terminate a construction contract and collect damages

5 days ago

My wife and I and our two girls have been out of our home for almost two years following a garage fire and awaiting repairs. We hired a company named to do repairs and they’ve worked on home for over year and a half. I’ll try and make this short as possible: First, it took them almost 5 months to get the permits to begin any work and has been one delay after another after another since what appears to be fraudulent acts as well. When the permits were taking so long I inquired with the city as to why it’s taking so long. The lady told me she didn’t understand what the issue was because she kept telling the company what they needed to send her over and over until eventually doing so. The construction company had us give them selections such as backsplash tile for example, then as we’re waiting for those parts of the project to be completed they asked us again months later for the selections..I forward them the email giving them the selections. We met with them personally regarding paint selections and picked out in detail all of what we wanted..a couple of months later requested we give them the selections because it’s holding them up..this happened many times. They ordered lights and fans we had given them selections for, we dropped by the house one day and there was fans and lights there but not one of them was what we ordered..so yet another delay in reordering. They had given us credits for different parts of the job they didn’t have to do in which they kept the funds when we wanted to sue those monies for different parts of the house. They received money for items like appliances that we wanted to use and pick out it out and go buy it ourselves, they wouldn’t give us the money..they kept it. We were going to hire other people to do flooring work on tile and wood and they said ok but then wouldn’t give us the money from usaa they’d received for it even though they didn’t do the job. They wanted me to resign a contract with them for 173k which would’ve been for them doing all of the work I don’t want them to do..like the flooring etc. I did not sign that contract but they kept the funds as if I did. They failed the mortgage inspection at 50% even though received funds to complete way beyond 50%. They requested for extra supplements and other work that needed to be done directly from my insurance company..the insurance company made the two checks out to them and my wife for dual endorsement, the checks were endorsed and cashed though my wife and I don’t recall ever signing them. We asked them several times to clear that up for us if we happened to be overlooking when we did that..they didn’t respond. I asked 4 times, they never responded to that and the last time I asked them I received a response from an attorney. I asked their representation the same question twice to clear up the timeline for us as to when that occurred so we can move forward on the home and their attorney never answered it. I’ve asked them to please not enter the house given all that’s going on until we have some clarity on the situation and they’ve entered a few times and performed work we didn’t ask for nor was on the scope. We need the relationship dissolved and them taken off of the ability to draw from check disbursements from mortgage company who holds the repair insurance check.

We need back in our house this has been a nightmare for our whole family. We need this company off the contract and they owe us money within the contract guidelines and are in beach of contract..we’d like to also seek reimbursement from them for living expenses (rent, bills) we’ve incurred having to be out of our home due to their delays. Can you please please help me with this..if you’re unable to assist can you possibly guide me in how to do it myself? Thank you so much

Additional info about this contractor
Project Role: Owner
Project Type: Residential
Partner Patout | Law, PLLC

Good morning,

I am sorry to hear about your nightmarish experience. The situation you have found yourself in, unfortunately, is complicated as an improper termination of the contract could potentially lead to counterclaims by the contractor for breach of the construction agreement. You also have to contend with the Residential Construction Liability Act (“RCLA”), which is drafted in favor of contractors for the most part. Termination of the agreement is likely going to come down to what the contract says.

Feel free to give me a call, text, or e-mail, and we can schedule a free consultation to discuss your situation in detail and work on getting you out of this mess.
Sincerely,

Martin C. Law, Partner
Patout | Law, PLLC
5850 San Felipe, Suite 500
Houston, Texas 77057
P: (346) 888-4730 | D: (346) 327-2501
F: (346) 327-2510 | E: mlaw@patoutlaw.com
W: http://www.patoutlaw.com

Attorney E. Aaron Cartwright III, Attorney At Law
19 reviews

Hello,

Alrighty, let’s take break this down a bit, shall we.

1. Under Chapter 27 of the Texas Property Code, you should send them a notice of the defects, first. Carefully explain what has gone wrong just like you did here. List the problems out with very clear specificity if you have to. Provide to the contractor any evidence that depicts the nature and cause of the defect and the nature and extent of repairs necessary to remedy the defect, including expert reports, photographs, and videotapes. Ask for an accounting of any balance they may think you owe them. You will need this later.

2. Next, you get to wait 35 days. During this 35 day period the contractor gets to do an inspection of the place to determine the nature and cause of the defect and the nature and extent of repairs necessary to remedy the defect. They get to make you an offer you get to accept or reject. The offer may include either an agreement by the contractor to repair or to have repaired by an independent contractor partially or totally at the contractor’s expense or at a reduced rate to the claimant any construction defect described in the notice and shall describe in reasonable detail the kind of repairs which will be made.

3. If you accept the offer, they have a certain amount of time to complete the repairs. If you reject the offer, you have to explain in writing why the offer is unreasonable. They then have a limited amount of time to make a supplemental offer. You may accept or reject the supplemental offer.

4. Following this you issue a notice of termination telling them to get off your property and not return.

5. Then you file suit. In your suit, you need to explain in good detail the subject of each defect (see why the documentation is so important up front?). If the court determines that the offers made by the contractor were reasonable, your potential damages are going to be EXTREMELY reduced. You will want to have had a contractor of your own come out and do estimations.

6. If the court determines the amounts offered by the contractor are unreasonable, your economic damages can include:
(1) the reasonable cost of repairs necessary to cure any construction defect;
(2) the reasonable and necessary cost for the replacement or repair of any damaged goods in the residence;
(3) reasonable and necessary engineering and consulting fees;
(4) the reasonable expenses of temporary housing reasonably necessary during the repair period;
(5) the reduction in current market value, if any, after the construction defect is repaired if the construction defect is a structural failure; and
(6) reasonable and necessary attorney’s fees.

There are, of course, some other nuances but that’s why you have us. If you’re in Houston, give Mr. Law a call. He’s good people. Ask him if you have reached the Law law firm when you get him on the phone.

If you’re around Dallas – Fort Worth, feel free to give me a call.

E. Aaron Cartwright III
214-789-1354
Aaron@EACLawyer.com

Attorney E. Aaron Cartwright III, Attorney At Law
19 reviews

Almost forgot!

Somewhere in there you’re going to want to find out if he has insurance, or anything to actually recover in a lawsuit. It sounds like your damages would be substantial so you want to make sure you are not expending a lot of capital for nothing but a piece of paper showing he owes you money.

-Aaron

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