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Recommendations? Termination for Cause?

TexasConstruction ContractNotice of TerminationPayment Disputes

The GC installed a wood floor that began buckling/Tenting and lifting in areas day 2 after install. I had a Certified Floor Inspector, inspect and report, summary Conclusion Without prejudice and based only on the evidence collected, the cause of the tenting, end peak, edge lift, and hollow spots in the engineered hardwood flooring are installation related. Tenting, end peak, and edge lift are consistent with insufficient expansion at perimeter/vertical obstructions in direct glue engineered hardwood installations. Elevated moisture content is consistent with moisture from below the flooring (substrate/leveler) in direct glue engineered hardwood installations. Hollow spots are consistent with insufficient floor flatness/floor prep and insufficient adhesive application/transfer in direct glue engineered hardwood installations. Improper adhesive selection/application may be a contributing factor to concerns. Adhesive used is not recommended for flooring less than 1/2" thick or more than 5" wide. Insufficient end stagger per MFR guideline. Soft fill is consistent with improper fill material. No proof of hardwood and adhesive Manufacturer required pre-installation moisture testing and jobsite conditions provided. GC contractor continues to bill me for the floor & removal, wont file on his insurance. Recommendations? Termination for Cause?

4 replies

May 4, 2021

You need to create a paper trail, so I suggest that you consider the following.

You should write the contractor a letter by certified mail to request that the contractor return to correct/complete his work. In that letter, you should advise generally what work needs to be corrected/completed. You should also indicate that if the contractor does not return to correct/complete his work, you will have to retain another contractor, and will hold the first contractor responsible for the costs. Finally, indicate in your letter that if the contractor does not advise that he will return to correct/complete his work within one week, you will presume that he has no intention of doing so, and you will hold him responsible for the costs of correcting/completing his work.

When the contractor does not return, you can retain another contractor to correct/complete the first contractor's work. Make sure that the second contractor itemizes his invoices and lists the costs to correct/complete the first contractor's work. You cannot charge the first contractor with the cost of work that was not within the first contractor's scope of work.  

Once you have tallied the costs associated with correcting/completing the first contractor's work, you can consider suing him to recover those costs. The jurisdictional maximum for small claims court in Texas is now $20,000. So, if your claim exceeds that amount, you will have to sue in County or District Court. In small claims court, you can represent yourself. In County or District Court, you will have to retain an attorney. However, under Texas law, you would be entitled to recover attorney's fees if you prevailed.

Make sure that you take a lot of photos of the first contractor's work. Digital photos with the date of the photo imprinted on the photo are best. You should document the condition in which the first contractor left the work and what it took to correct/complete the work.

Retain a construction attorney to evaluate your legal situation and to provide advice. Termination can be a drastic option, with a lot of legal consequences.

Good luck.

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May 4, 2021
Thank you. But what if I don’t want him to replace the floor based on the poor workmanship
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May 4, 2021

If you choose not to offer the contractor an opportunity to cure, you risk the contractor's declaring that you have wrongfully terminated the contract, and a suit seeking the contractor's lost profits.

That said, that does not mean that you have to have the contractor return to work. Retain a construction attorney to help you formulate the notice/demand letter with a structure that would incentivize the contractor not to want to return.

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May 5, 2021

Hello,

A few things to add to Mr. Erikson's answer.

1. The reason you are required to give notice of defects and opportunity to cure is Chapter 27 of the Texas Property Code. If you do not comply with the statute, not only can you be sued but if you sue your damages can be reduced drastically.

2. I, personally, would not file in small claims court because the judges there, depending on county, are often not attorneys which can cause problems when the facts and evidence are complex.

The rest of what he says is fairly spot on.

E. Aaron Cartwright III
214.789.1354
Aaron@EACLawyer.com

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