{Hi-I am writing this on behalf of my spouse who is a learning disabled unlicensed concrete finisher in the state of Indiana.}I have been threaten with a civil suit from a concrete client stating the work was "faulty". With 12 years of concrete experience, I take pride in the outcome of my work and have many satisfied clients, but this client was so particular and difficult to work with. I couldn't perform my usual work without her constant input and many changes. Well, long story short, the job was completed, but with only a few faults which I can fix at my own cost, but the client wants WAY more than I can afford to accommodate. Please read the email her attorney sent last Friday and advise what I should do as a blue collar married father of four. Our finances are extremely tight as is, and now this. FYI..there was no written contract, only verbal, and the client knew I was unlicensed and uninsured, but felt my bid was the cheapest. ATTORNEY LETTER:Dear Mr. M:My law firm and I represent XXXXXX in relation to residential driveway work that you performed for her on May 19, 2012. Unfortunately, that work was not performed to acceptable standards. Ms. XXXX has asked me to contact you to discuss how problems with the driveway can be resolved. As you stated to Ms. XXXX, the work was performed by an inexperienced crew that you located through Craig’s List. You also conceded that the work was faulty and needs to be redone. Specifically, it is uneven throughout, is not flush with the adjacent sidewalk, and is prone to puddling after it rains. The control joints throughout are faulty, and the edges of the driveway are not correctly finished with the standard slick finish. In addition to these structural and cosmetic defects, the drive has already experienced significant cracking. There is no doubt that it will continue to deteriorate, especially when freeze and thaw conditions arrive during the winter months. It also appears that water was poured on the driveway as your crew attempted to apply some sort of a broom finish. That weakened the surface of the driveway, and will result in popping and scaling when winter arrives. Under Indiana law, you are obligated to place Ms. XXXX in the position she would have been in had the contract been properly performed or, in this case, in the position she would have been in had there been no contract at all. This means that Ms. XXXX could reasonably ask a court to require you to remove the driveway and refund the $9,850 paid for the work. Nevertheless, Ms. XXXX wishes to avoid the time and expense associated with litigation, and would prefer to come to an agreement that everyone can live with. Ms. XXXXX would be agreeable to foregoing her option of litigating this matter in exchange for (1) your removal of the driveway and (2) payment from you in the amount of $5,000 (perhaps through installments that can be negotiated). It would be understood, of course, that removal of the driveway must occur in a commercially reasonable manner, with appropriate measures taken to avoid damage to Ms. XXXX surrounding property. It would also be expected for you to haul away and properly dispose of all removed materials. Perhaps it goes without saying, but Ms. XXXX would not agree to removal of the driveway by the individuals you located through Craig’s List, or by anyone else who lacks the necessary experience.Please provide your response to this proposal by June 29, 2012. If we do not hear from you by that time, we will regrettably pursue litigation as necessary to enforce Ms.XXXX legal rights to the fullest extent permitted under Indiana law.Very truly yours,XXXXX
Hello and thank you for the opportunity to assist you. There may be a slight delay between your follow ups and my replies as I am typing out my answer. Please remember that this is general information only, not legal advice, and no attorney-client relationship is formed.I am very sorry for your spouse's situation. Please tell me, what do you wish to know? What his liability here is? How or should he respond? Or, something else?I guess what I am asking is what can I answer for you, friend?This not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. I look forward to helping you.
Hi, Yes, what is his liability here in the State of Indiana, and how should we respond to her attorneys letter? Also, if we end up in court what could be the possible outcome here? We're clueless as what to do and need some detailed direction. Paying for an attorney out right is something our family can't afford. This would be his first time ever been sued, and we're still pretty shocked. Thank you, Sir.
Marlon,Thank you. Well, what does he wish to do here - does he wish to challenge this in Court if he has a chance, or would he rather simply settle?Finally, what was the overall payment agreement - what was the total that they are to pay him?
Thank you, XXXXX XXXXX await your reply. Also, the entire job (materials and labor) were $9850.00, but I walked away with $2000.00 cash after paying my crew. {Again, my spouse is learning disabled, so I am typing his verbal replies to you}
Okay, thank you. Again, typing out the answer now. This is a long answer, so please give me a few minutes.
You have a choice to make here. You can either (1) negotiate with them to lower your rate in regards XXXXX XXXXX they see as a "minor breach of contract" (see below) or you may (2) say "no" and take your chances in Court.Breach of contract may be minor, or material. A minor breach allows the paying party to pay the whole amount but less for the matter that was done improperly.A material breach goes to the "heart" of the matter. This is when you simply drop the ball, or not even show up at all. This allows them not to pay you.Is it a minor or material breach? The Court would decide based on the following subjective factors:1. The extent to which the injured party will be deprived of an expected benefit2. The extent to which the party can be adequately compensated.3. The extent to which the breaching party will suffer forfeiture.4. The likelihood that the breaching party will cure their failure5. The good faith of the breaching party. So here, the attorney is essentially saying, "we are arguing that this is a material breach and we can ask you to refund the matter; but, we are willing to see this as a minor breach, so let us pay less and we'll be happy."At this point, you can write back, stating essentially, (1) I disagree with you that this is a material or minor breach, but I will negotiate. How about $___ off the amount? This is my final offer" (etc) or "Sorry, I do not agree and I believe that the Court will also not see this as a minor or material breach, so please pay me, or I will see you in Court."Now - which of these does he wish to do, so I can provide a template letter?
The client paid me $2000.00 the day the concrete was poured, and complained about the end result a week later. She also feels that I should not benefit from this job. So as of right now, everyone involved has been paid, she is suing me for the outcome of the pour.
Hello,Thank you for your follow up. So what do you wish to do here - take a stance and risk a suit, negotiate, or agree to her proposal?Depending on what you wish to do, I can provide a (sample) response that you can view and use.
Hi,As an attorney, what would you recommend? I cannot financially afford to agree to her email proposal. The only options left would be risk a suit, if she doesn't agree MY negotiation proposal. I'm a small time concrete finisher working to provide for my family. I guess two templates would help. One for taking a stand and allowing the court to decide, and one for my attempt at a possible negotiation with her.
Hello,I am sorry, but I cannot recommend a course of action. JustAnswer experts may only provide general information, and not legal advice. So I am estopped from doing so.I will provide the two templates below, and you can choose whichever one you prefer. Please amend as needed.AgreeDear _____,I am in receipt of your correspondence dated ____. While I am in disagreement that the work is substandard, like you I wish to avoid litigation and settle the matter out of Court. Ergo, I propose the following compromise: (what you are proposing)If this is agreeable, please contact me so payment may be effected and the matter can be resolved. I would also appreciate a Waiver from your office in regard to any action by your client against me for this matter.DisagreeDear _____,I am in receipt of your correspondence dated ____. I am sorry your client feels that my work was substandard, but I must disagree. The work is not faulty and is standard in regards XXXXX XXXXX puddling, control joints, edges, finish, and other cosmetic and structural defects alleged by your client.I cannot agree to any more than full amount of what was agreed-upon. I strongly feel that this was in no way a material or minor breach of contract or negligence on my part, and I will pursue litigation if necessary to enforce my contractual rights.If payment is not made within __ days, I will strongly consider my legal alternatives. Likewise, if litigated against, I will defend myself and seek reimbursement of legal expenses under Indiana Code section 34-1-32-1 once I am successful. I will also consider filing a grievance with the Indiana Bar for any groundless litigation brought against me by any office."I hope this finds you well. Please click Reply to Expert to keep talking, or rate my answer when we are finished. Kindly rate my answer as one of the top three faces only when you are ready (otherwise, hit REPLY to chat more), because this is how I get credit for my time with you. I work very hard to formulate an informative answer for you; please reciprocate my good faith. (You may always ask follow ups free after rating.)
Relist: Inaccurate answer.
Hello,I see that you relisted your question as "inaccurate answer." Please let me know what you would like for me to touch base on, expand, explain?Please reply and let me know. I am here to help. Or if you simply prefer a second opinion, let me know.
Hi Sir, I just don't understand why my only options will cost us financially. Is there an " as is" law? Just a thought. Can she legally sue, and if we go to court will we end up owing thousands we don't have? If so, how will repayment be decided? You know the saying, "you can't squeeze blood from a turnip." So, if the court decides in her favor, where does that leave me?
Hello,Thank you for your follow up. I am afraid that if she decides to file in Court, you will have to defend yourself. This is simply the way the justice system works. If the Court feels that their allegations are frivolous, then their claim would be dismissed, and you may ask for legal costs as part of judgment.The Court may decide if the job was substandard that (1) they pay you most of the contract, but minus whatever the damage is and what it would cost to fix this; or(2) they do not pay you anything if the job was very badly done; or(3) they pay you everything if the job was done in accordance to standard of the industry and practice.But in the end - if either you or the other party decides to go to court, the court will decide.While the legal system tries to be inclusive of every possibility, sometimes people have limited avenues to seek relief. Please understand that this is not the expert’s fault. Surely, you prefer that I tell you the truth rather than what you wish to hear. Please keep this in mind when rating my answer. I understand that this may not be easy to hear, and I empathize.I hope this finds you well. Please click Reply to Expert to keep talking, or rate my answer when we are finished. Kindly rate my answer as one of the top three faces only when you are ready (otherwise, hit REPLY to chat more), because this is how I get credit for my time with you. I work very hard to formulate an informative answer for you; please reciprocate my good faith. (You may always ask follow ups free after rating.)