The only thing stopping me is that judges are generally not known for their senses of humor. Except for this guy: http://www.kttlaw.com/dlr/riddle.pdf; or this guy: http://www.scribd.com/doc/21787619/In-Re-Richard-Willis-King-USBC-WDTX-05-56485-C-ORDER-2-21-2006. Apparently bankruptcy judges are really funny - who knew?
I have to say that there is an advantage to having waited nearly two years to take on this project, namely: having calmed the f*** down. I think the reason for the adage above is that irate people tend to be unreasonable people, and the law prizes dispassionate reason uber alles. Which is why you should hire a lawyer when things end up in court, because it's really hard to be dispassionate and calm when you've been victimized by someone; so it's best to shut up and pay someone else to calmly and elegantly rip them to legal shreds while you smirk from behind. You've seen Judge Judy, right? You don't want to be the crazy person screaming across the lectern at your nemesis unless you are getting paid by the producers to do so.
The sole exception to the self-representation rule in the construction context (besides going on Judge Judy) is when you can't afford both the lawyer and finishing the project, and - MOST IMPORTANTLY - you aren't going to drive the guy over in the parking lot on the way out if you lose. If you can't trust yourself on this last point, it's best to just forget the whole damn thing and do something fun but legal like standing outside his house with a board saying he's a crook who can't contract his way out of a paper bag.
Anyway, this is a story about the ironies of being your own lawyer - or maybe this story proves that something really weird is going on that should perhaps be reworked into a novel that will result in a movie where Meryl Streep stars as the goddess twisting our fate from up above, and Amy Adams plays me, the blogger/lawyer/cook/mini-contractor living out this twisted tale; but before I get to the punchline, I need to give you the backstory.
Water Wars
What drove me to start this blog was the Perpetual Font of the Lord's Anger atop which we apparently built our addition. Well, that's what the contractor will argue anyway. And had we not resolved it through reason and skilled labor, I too would have attributed the problem to divine wrath. Visually speaking, every time it rained, the lower level of the addition looked like this:
OIC, of course, said all we needed to do was backfill the trench around the house and all would be fine. Yeah, well: WATERPROOFING: FAIL!! So we parted company with OIC and started consulting people on what to do about this wet mess. The results came out 50/50: put in a sump pump or re-waterproof and fill the trench. We just wanted whatever option would actually work.
Second Incompetent Contractor (SIC) was one of the bidders, who came to us recommended by a friend, with references and license checked, etc., and he told us that he was 99% certain we did not need a sump pump unless, unbeknownst to all, we were sitting on a spring, which he didn't believe to be the case. In fact, he said, it's best to avoid a sump system as the primary means of waterproofing since a sump system inherently allows water to come in under the perimeter of the house which drains into a pit beneath the floor where the pump sits. The problem is that when the pump fails (usually not an if) you will have a basement full of water, whereas a french drain, which sits outside the perimeter of the addition just channels all the water away from the house by natural gravity before it ever gets inside. I pictured the sump failing at 3 am some Sunday morning in February and although fixing it from the outside was $2000 more and carried a 1% risk of failure, we chose Door #2.
It is noteworthy that a french drain system was envisioned by the original permit set, but the OIC hadn't installed it as set forth in the plans (nor the waterproofing, insulation, grading, or pretty much anything else). You can see from the photos below that there is some sort of thinly sprayed black stuff not even covering the mortar of the block wall where a 3 mm waterproof membrane glued to the wall and 1.5" of insulation board were supposed to be.
The biggest "whoops" was that OIC put the drain around the perimeter of the house, when it was supposed to go under the foundation itself. I guess he didn't bother to read the permit drawings, because that part was highlighted in yellow by the permit-writer. La dee da!!
Anyway, long story short, we hired SIC to fix OIC's mess and install the new door and trim. And his subs did do a better job waterproofing and installing some insulation:
As it turned out, SIC didn't bother to check the grade from the addition to the alley, where the french drain was designed to exit. If he had (and this should be the first order of business for anyone suggesting a gravity-fed drain), he would have known that there was not enough of a slope to have the water from the drain. So instead of flowing freely into the alley, the sump exited below the level of the alley, which created a giant cesspool and also caused water to back up to the house and leak into the lower level. Again.
So we called the sump system folks back, and finally hired MER/Morrison who were the most expensive of the bunch but had the best warranty and were the most highly rated on Checkbook.org. They were also our last hope. Luckily, they were fast, professional, and most importantly - competent. And so, 2 years into this project we got this:
And there was much mirth and celebration in the kingdom.
So What's the Joke?
First of all, we ended up battling with SIC for a partial refund that didn't pay for the sump system, but also didn't involve going to court. Suffice to say, however, that SIC's name is still mud in our books - ha ha ha ha...
Until...
I have spent this weekend doing yoga and putting together - very calmly, very reasonably (thanks to the yoga) - our step-by-step case against OIC. One of the biggest things going for us - in my mind, anyway- is that it turns out that OIC's contracting license expired 3 months into our project. Additionally, in Virginia, there are 3 classes of license: one can have a Class C license where a single construction contract is between $1,000 and $7,500, or if the total value of all contracting by the person in a 12-month period is less than $150,000. A Class B license is required where a single contract is between $7,500 and $120,000, or if the total contracting value that year is between $150,000 and $750,000. OIC's license, when he had it, was a Class C license, but our project was well over $7,500, and so he should have had a Class B license all along. So part of my argument is that OIC committed fraud and is subject to the wrath of the Virginia Code for people who contract without a license.
The hitch in this fine argument is how to read the "or" in the Code. A contractor could argue that the "or" between the individual contract amount and the total contracting amount means one or the other, which could allow a result where a Class C contractor might be allowed to have an individual contract that was for $50,000, so long as their 12-month (presumably a rolling average) total contracting work stayed under $150,000.
The Virginia Board of Contractors clearly intended for the "or" to in effect be "and," as is visible from their consumer information sheet which states: "Any contractor who undertakes a project the total value of which is $120,000 or more is required to have a valid Class A license issued by the Board for Contractors. Any contractor who undertakes a project the total value of which is over $7,500 but less than $120,000 must have a valid Class B license." Their sheet doesn't even mention the other clause. This interpretation makes logical sense, because if you don't read it that way, then contractors would just ignore the more easily-triggered individual contract thresholds, since higher classifications have more arduous requirements (like an exam and minimum equity). So the Board would take my side and say that from the start, OIC needed a Class B license to do the work they proposed, a major win for me (Yay!).
Still, without any clear case law which, the last time I had looked, there hadn't been, I will be before a judge arguing things like statutory intent, reasonable interpretation, blah blah blah (Boo!).
But then I stumbled across a legal opinion recently issued on this exact point. The contractor in question had a Class B license and had a contract with a residential homeowner to do a $128,000 project. The homeowner paid this. The contractor was suing to get an additional $65,000 in what he claimed were change orders to the original contract. The homeowner argued that the claim was inherently barred, since the initial contract on its face required the contractor to have a Class A license (which he did not). And I jumped up and did a premature victory dance when I saw that the court ruled in the homeowner's favor - i.e., in my favor. Shazam! Hallelujah! Woo-hoo!!
But here's the kicker: Once I calmed down enough to write down the case name, I noticed that the contractor in question in this lawsuit was none other than SIC.
That's right, I'll have the joy of entering into the list of exhibits our expenses from SIC as evidence of expenses faced due to OIC's negligence, and will also be using caselaw against SIC to prove that OIC was a fraud, too. Irony? Hilarity? WTF is going on, am I being Punk'd?
1 comment:
I'm glad you are laughing now, rather than waiting to look back on it. By the time you get to lawyers(even if you are one), you know that you have already lost (and you know I speak from experience).
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