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Tina
Tina, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 31975
Experience:  16 years legal experience including consumer protection law.
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Our septic tank had developed cracks. We hired a licensed contractor

Customer Question

Our septic tank had developed cracks. We hired a licensed contractor (Texas) for the job. The contractor removed the soil over the tank and patched the cracks. In order to prevent future cracks, he replaced some of the soil with large Styrofoam pieces. This was supposed to reduce the overall weight on top of the tank. The rest of the tank and the Styrofoam was covered with regular soil.

Work started on 05/06/2013. There were issues during the repair process and the work was finished on 05/13/2013. We paid a total of $820.00 ($170.00 for parts and $650.00 for labor).

On 05/25/2013 after a 2" rainfall, one of the large Styrofoam pieces had come up to the surface. I took photos and emailed the contractor on 05/25/2013. Several email exchanges took place between 05/25/2013 and 06/01/2013. The contractor's last response was on 05/31/2013. I emailed him on 06/18/2013 and demanded to know by the end of that week when and how he was going to fix the failed repair. On 06/21/2013 he informed me that he needed to bring more fill material. He did not provide a date when he would do so. This was the last time I heard from the contractor. As of 07/10/2013 I have not heard from him. The tank remains in the same condition it was on 05/25/2013. On 06/30 I filed a complaint with the Austin BBB. The complaint is still pending. Today (07/11) I received a voicemail from the contractor. With lame excuses of his schedule being mixed up, no good times available to come and fix the issue. He won't be available the next couple of weeks but wants me to call him.

In my complaint to the BBB I had stated that I want a partial refund of $200 in order to hire somebody else to fix the tank. I also wanted our new service contract which we signed with the same contractor on 05/19/2013 dissolved. Since no service has yet been performed under this new contract I want a full refund for it.

Do I have a legal obligation to allow this contractor to fix the repair? I believe I have given him more than enough time and opportunity to fix the issue. Am I stuck with the service contract?
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Tina replied 1 year ago.

Hello and welcome.

My name is XXXXX XXXXX my goal is to provide you with excellent service today. I am sorry to hear of your difficult situation. Before I can give you an accurate answer to your question, please provide the following additional information:

Is there anything in your agreement with the contractor which requires that you permit them to make the necessary repairs? Do you know how much it might cost to make the additional repairs?

I look forward to assisting you as soon as I have received this information. Thank you.

Customer: replied 1 year ago.
Hi Tina,

We did not have a written agreement to cover the repair of the tank. The only document I have is the maintenance contract.

I don't know exactly how much it would cost to fix the issue. The Styrofoam has to be dug up and more soil or other fill material brought in. The actual repair of the tank itself seems OK.

I you want to give me an email address I could send pictures of the issue as well as a copy of the service contract.
Expert:  Tina replied 1 year ago.
Hello again, Gitta, and thank you for this additional information.

The site's TOS we both agreed to prohibit us from communicating outside of this forum so I cannot receive documents by e-mail from you. If you could paste the relevant language of the service contract here I could review it or just let me know whether you have a right to terminate the contract and when it terminates, it at all. Or you can use your "help" button to contact customer service and send the document to them to forward to me.
Customer: replied 1 year ago.
The contract is for routine maintenance and inspection (3 times per year). Contractor will notify client of repairs needed..

I'll try to copy and paste the entire contract.
Expert:  Tina replied 1 year ago.
OK. I'll wait for you to provide that.
Customer: replied 1 year ago.
Hi Tina,
having some connection problems. Did you receive the contract?

Gitta
Expert:  Tina replied 1 year ago.
No, Gitta, I'm sorry but I do not see where you posted that.
Customer: replied 1 year ago.
Well, it seems I can't insert the jpg file and for some reason it appears too long to copy and paste.

Sorry.
Expert:  Tina replied 1 year ago.
Oh dear. You could call customer service for assistance at 1.888.862.9212 or paste only that portion that speaks to your ability to terminate or length of the contract.
Customer: replied 1 year ago.
Effective dates for this contract: 06/01/13 through 06/01/14 upon receipt of full payment. We paid in full.
There is nothing in this contract regarding termination. It covers Effective Dates, Contract Includes, Prices, Pumping, Chlorine, Application or Transfer of Payments (in case the property is sold), Terms of Payment.

I'll try to call customer service

Gitta
Expert:  Tina replied 1 year ago.
I see, Gitta. I don't think having the rest of the contract is going to make a difference since it does appear the contractor is in breach of the contract which typically provides you with the right to terminate it and demand at least a pro-rated refund since it has only been in effect for a little over a month and the contractor has taken approximately a month and 1/2 to respond to you, with no repair date yet in sight.

The law implies a duty of good faith and fair dealing which I would argue the contractor has breached by not returning to repair the job originally performed in a timely manner.

Therefore, you could sue for a refund or the costs to make the necessary repairs that would have been covered under the contract.

Because of the amount involved, your suit could be filed in small claims court. Or you could wait for the contractor to respond to the BBB report, but I would not wait for them to make the repairs at this point, but pursue damages against them, either through small claims or your complaint with the BBB.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 1 year ago.
OK, I just mailed the information you need toXXX@XXXXXX.XXX
Expert:  Tina replied 1 year ago.
OK, I will wait to hear from them and comment on the documents after I review them. This usually takes some time, so there may be a delay. Thank you for your patience.
Customer: replied 1 year ago.
Thanks Tina.
Expert:  Tina replied 1 year ago.
You are very welcome, Gitta.
Customer: replied 1 year ago.
Good Morning!
I just read your explanation about the contract.
I'm still a little confused. I thought we had two separate issues. The maintenance contract which only requires the contractor to tell us about needed repairs (which he did) and on the other hand the issues with the actual repair of the tank. The maintenance contract as I understand it covers routine inspection and maintenance only. In hindsight, we should have insisted on a written contract for the tank repair.

Do I understand correctly, that I can terminate the maintenance contract because the contract does not provide a clause for termination by either party? We have not had any issues with the inspection/maintenance agreement. I just don't want to do any more business with this company.

Think I'm clear on the fact, that I do not have to allow the contractor to finish the repair at this point.

Gitta



Expert:  Tina replied 1 year ago.
Hello again, Gitta.

You would be terminating the service contract for breaching it since he has not timely responded to your requests to repair the septic tank. If the service contract does not cover that, then you would arguably continue to be bound by it, but he has certainly not performed the septic tank repair in a reasonable manner, so you could have someone else make the necessary repairs and pursue damages against him.
Customer: replied 1 year ago.
Did you get to look at the service contract I sent toXXX@XXXXXX.XXX?

Gitta
Expert:  Tina replied 1 year ago.
I just sent a message to them because I still have not received it. I should hear back shortly.
Customer: replied 1 year ago.
Thanks Tina,
while we wait for that, I have one final question regarding the tank repair. Do I need to have several bids in order to be successful in Small Claims Court?

Gitta
Expert:  Tina replied 1 year ago.
No, not necessarily, Gitta. I would get a couple of bids though and make sure they are reputable contractors so the original contractor cannot attack their credibility.
Customer: replied 1 year ago.
Excellent thought! Never crossed my mind.

Gitta
Expert:  Tina replied 1 year ago.
So glad to help Gitta. I will be posting again after I receive the documents you forwarded to customer service.
Customer: replied 1 year ago.
Great. Thanks. I'll check in later.
Expert:  Tina replied 1 year ago.
Sounds good. Thank you for your patience Gitta.
Customer: replied 1 year ago.

Hi Tina,

boy, it kept bugging me that I couldn't figure out how to get you the information. It may not matter now, but here is the email exchange regarding the tank repair. After my last attempt on 06/21 and still not having a repair date, I filed a complaint with the BBB on 06/30. On 07/11 the contractor left me a voicemail saying his "schedule had been mixed up".

This is the reply he sent to the BBB today:

"We have fulfilled our job. It was discussed between the homeowners that we try to lighten the load that was going to be placed on top of the septic tank. We agreed on Styrofoam. One small piece that was close to the surface came up during a rain. The rest stayed in place. We responded to the homeowner that we will come out and put more dirt over the vacant area and to help hold down the other pieces. She agreed on this and I have not had a accurate time to schedule this with her. We will still do this. We were not charging her for this. We stand behind our work and. The job was mostly labor. Due to the length of time of our relationship we did not charge her the full amount of hours it took to complete the job. "

Thanks for your patience. I'm trying to give you all the info but not swamp you at the same time. Problem is, I don't know what is important

Gitta

Sent: Friday, June 21, 2013 9:28 AM

To:

Subject: Re: Tank Repair

I will have to bring more fill material. The foam that came up was possible the piece closest to the surface.

Sent from my Galaxy S®III

From:

Sent: Tuesday, June 18, 2013 6:33 PM

To: 'txwes'

Subject: Re: Tank Repair

Hi Anthony,

I must say I am more than surprised how you choose to respond to the partially failed tank repair.

This whole project has turned out to be a very frustrating experience. Starting with your decision to take off 4 hours for personal business on May 6, 2013 which made it impossible for you to finish the work in one day. A decision I felt was not only highly unprofessional, but also showed utter disrespect and disregard for me and my business. This was followed by your failure to let me know about your vehicle problems on May 8, 2013. After the work was finally finished on May 9, 2013 I was hoping this was a single bad experience.

Two weeks later on May 25, 2013 a 2” rainfall did result in one large piece of Styrofoam to be pushed to the surface. I did notify you the same day. But here we are 23 days later and no word from you as to how and when you will fix the problem. Not a word since my last email to you on June 1, 2013.

I want to know by the end of this week when and how you are going to fix the issue.

Sincerely,

G. Vaughn

From: ]

Sent: Saturday, June 01, 2013 11:30 AM

To: 'txwes'

Subject: RE: Tank Repair

If heavy wet soil can’t keep the foam down – how would mulch keep it down?

From: txwes []

Sent: Friday, May 31, 2013 9:30 PM

To:

Subject: RE: Tank Repair

That may work. I don't think it would need much. If its all packed down then it may keep the rest of the foam down.

Sent from my Galaxy S®III

From: ]

Sent: Friday, May 31, 2013 5:25 PM

To: 'txwes'

Subject: RE: Tank Repair

One piece. But had only 2”, far less than the rest of SA.

How about pecan shell mulch? Weighs around 425 pounds per cubic yard and doesn’t absorb water like regular mulch. That would make it about half the weight of reasonably dry soil.

From: txwes

Sent: Tuesday, May 28, 2013 9:13 PM

To:

Subject: RE: Tank Repair

Maybe some mulch. Did it all come up or just the one piece?

Sent from my Galaxy S®III

-------- Original message --------

From: >

Date: 05/28/2013 6:01 PM (GMT-06:00)

To: 'txwes' <t>

Subject: RE: Tank Repair

What’s the plan now?

-----Original Message-----

From: Gitta Vaughn []

Sent: Saturday, May 25, 2013 3:08 PM

To: 'txwes'

Subject: Tank Repair

Hi Anthony,

As you can see, the styrofoam idea doesn't work well in rain. We had just under one inch rain yesterday and barely 2" today. Had we had as much rain as the north side of SA, I'm guessing all the pieces would have come to the surface.

Gitta Vaughn

Expert:  Tina replied 1 year ago.
Hello again, Gitta.

I just received a response from the site and they indicate they do not have a file to forward from you. You may want to call the customer service number I gave you above if you still wish for me to review the contract.

In any case, given the information you provided above, I would have a reputable contractor come out and inspect your property for you. If they indicate the work was not done properly and how much it will cost to make the repair as originally agreed, that would typically provide you with a basis to seek compensation from the original contractor for the additional amount it will cost to make the repair. His e-mails indicate he is unsure about how to resolve your problem and do not elicit a great deal of confidence.

It does appear he has failed to provide service and maintenance as agreed, so I would terminate your contract with him and seek a refund of most of the amount you paid for the service contract.

I hope this helps clarify the situation for you. Please remember to rate my service once you have all the information you need so I will be compensated for my time from the deposit you posted with this website. If you have any other questions, please ask me – I’ll be happy to respond. Thank you!

Tina

Customer: replied 1 year ago.
graphic
Expert:  Tina replied 1 year ago.
Thank you for attaching that, Gitta. The contract indicates that the company will respond within 2 business days, which they obviously have breached, providing you would grounds to terminate the contract and demand a refund of your monies paid. This does not appear to be a close call since they did not respond for more than a month.
Tina, Lawyer
Satisfied Customers: 31975
Experience: 16 years legal experience including consumer protection law.
Tina and 6 other Consumer Protection Law Specialists are ready to help you
Customer: replied 1 year ago.
Hi Tina,

Another try. Since the only question remaining is about the contract, I have
removed all items I had mentioned below.

Thanks
Gitta
Expert:  Tina replied 1 year ago.

Hello again, what remaining question do you have? I apologize if I missed something in our continuing dialog.

Expert:  Tina replied 1 year ago.
Hello again Gitta,
I wanted to thank you for using JustAnswer, and to inquire whether my answer was helpful in clarifying your understanding of the law even though it may not have resulted in the outcome you were hoping it would.
Is there anything else I can assist you with?
If you do not require further legal information at this time, please feel free to bookmark my profile so you can request me when you do have another question. Here is a link to my profile: http://www.justanswer.com/law/expert-tina/
Thank you very much and all the best to you.
Tina
Expert:  Tina replied 1 year ago.

Thank you very much for your positive rating of my service. It has been my pleasure to assist you and I hope you will ask for me should a future legal need arise.

If you receive a Customer Satisfaction Survey from JustAnswer, please consider scoring me a 9 or 10. It benefits my ability to assist you and other customers, and would be tremendously appreciated.

Thanks again and all the best to you.

Tina

Note: Please feel free to request me if you have future legal questions by typing your new question in the question box on my profile page. Here is a link to that page, which you can bookmark or add to your favorites: http://www.justanswer.com/law/expert-tina/. I look forward to hearing from you again should the need arise.

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