Hi,
We recently had a concrete border installed. They use one of those
border machines. We had this done about three weeks ago. The other day
we were working out in the yard and I dropped the wooden handle of the
shovel onto the border from a distance of two feet above. It left a
big 2cm deep, 1 inch wide0 or so dent in the border. We ignored it and
figured it was a air pocket or some other anomaly. About an hour or so
I was walking by and my foot brushed by a corner of the border and it
fell apart. I got down and started rubbing it with my hand and the
whole thing started to crumble apart in my hand. I went around to
several other parts of the border in the back yard and I took a
regular stick and using a regular stick, with surprisingly little
force I made a 2 inch deep mark simply by rubbing it. The whole border
is this loose where simply by brushing it with your foot it will start
to crumble apart. This is 3 weeks after it was poured. I went into the
front yard and it was hard as a rock. I spend several minutes hitting
it in various places with a screwdriver, and I didn't so much as leave
a scratch. I picked up a pebble size piece of the concrete from the
front yard that was excess and it was firm as a rock, I couldn't break
it apart. I went into the backyard, and picked up a similarly sized
piece of extra cement and it crumbled into dust in my hand. All the
borders in the backyard are that weak.
So I called the guy who came back. He said, "Well, it looks like
the mix for the backyard possibly was not as good as the one for the
front yard." He then changed his view around, and rather then accept
responsibility he said it was our fault for disturbing it before the
required 4 week curing process was over. He only replaced the corner
which had fallen apart. Now, I am no expert and that is why I am
referring to this forum. In my mind however 3 weeks should be enough
time for a concrete border to cure, and even if it did require a full
4 weeks, shouldn't by 3 weeks into it (under the hot 112 degree
Phoenix sun), it be hard enough not to crumble so easily? Our argument
was, well, if the front is solid as a rock, and they were both poured
on the same day, shouldn't the back be equally as strong? The guy is
not a licensed contractor (we checked after these problems happened)
so we can't take him to the board of contractors. He is an LLC. He
refused to replace the backyard borders besides the one corner citing
it wasn't his fault, it was all our fault. In my mind though, it is
not our fault if he mixed it wrong.
So I wondered if anyone who knew this field of expertise could
give their opinion on the matter, and possibly refer me to some
concrete standards or something. What retaliation is there for
something like this? Is it really our fault even though we didn't do
anything to it? How strong should a cement border be?
Thanks a ton for your time,
- snipped-for-privacy@aol.com
€ The guy is not a licensed contractor (we checked after these problems happened)
€ so we can't take him to the board of contractors. He is an LLC.
€
€ So I wondered if anyone who knew this field of expertise could
€ give their opinion on the matter, and possibly refer me to some
€ concrete standards or something. What retaliation is there for
€ something like this?
Without a license, here you would have no recourse.
I have no idea what recourse you have in your state, that would be a
function of your state laws and the wording of your contract.
If you don't have a contract, I doubt you have any recourse.
Best of luck, and let us know how it comes out!
He has recourse, with or without a contract, he can take the guy to
small claims court. And he almost certainly has at least a verbal
contract as there was a meeting of the minds and an agreement reached.
Of course a verbal contract is harder to prove, however this one is
pretty obvious. Hopefully he paid the guy with a check.
Even without an agreement, under the law, if you buy something, it has
to be basicly fit for the use intended. For example, if you sell
someone a new pot, and they take it home and find that it doesn't hold
water, even without a guarantee, they are entitled to a new pot or
refund.
The real problem, of course is collecting any judgement.
- Nehmo -
Somewhat aside form the topic of this thread, and I won't bore you with
the details.
The small-dispute court TV shows have generated the false public
perception that small civil courts actually dispense justice. I can't
speak for everywhere, but in Kansas City, Kansas, don't expect Judge Roy
Brown to hear your case. Actually, for the $31 it costs to file an
under-$500 case*, expect _maybe_ five minutes in front of someone who
just wants to dispense with you and go to the next case.
(The police, by the way, at least KCK Officer Watters-Patton, won't
answer your subpoena to testify either.)
However, I did made some useful observations. After watching a
morning-worth of cases - many of the cases were ex-wives suing for
unpaid child support. Then the process was to take the judgment to
Drivers Licensing to get the guy's license suspended. - it appeared, at
least in that court, the plaintiff had to have _all_ the paperwork to
prove his or her case. Oral-only agreements weren't recognized.
* Over here, OP's proper venue would be Limited Action Court, and he or
she would be unlikely to prevail without an attorney.
€ He has recourse, with or without a contract, he can take the guy to
€ small claims court. And he almost certainly has at least a verbal
€ contract as there was a meeting of the minds and an agreement reached.
You're right, of course.
I've used written contracts for so long that I didn't even consider a
verbal contract.
However, if his state requires a license for this work, his
"contractor" has no capacity to contract.
Concrete borders should be hard enough to take a hit like that within
24 hours. The classic mix problem is crumbly concrete, so the
contractor did poor work.
Now, what recourse do you have? Whatever recourse is in your
contract, plus the local court system.
Jeff
You have a Contract, either way. If it is written, it is even better. If
not written, you still have an oral contract. You paid money in exchange
for his agreement to perform work. Inherently, that is a Contract In
almost all states, there is an implied warranty of fitness for use. You
don't have that in your back yard.
Have an attorney write the LLC a demand letter. If you don't get a proper
response, take it to small claims court. No Judge would want crumbling
concrete in his or her back yard. Also, notify your local Better Business
Bureau .
Good Luck.
--James--
snipped-for-privacy@aol.com (Anteater) wrote in message
No question something is very wrong. It does take a long time for
concrete to reach it's maximum strength. However, this is a declining
exponential type of curve, so by 3 weeks, it should be closing in on
the last part of the curing, and certainly not falling apart. Was the
concrete kept moistened while it cured in the 112 deg heat? Sounds to
me, with such a small pourt, it could have dried out before it cured,
leaving you with half dust.
I'd wait the 4 weeks and then show the guy that more is still falling
apart. If he refuses to fix it, get a quote from another contractor,
which clearly indicates what the problem is, and a price to fix it.
If he refuses to fix it, you can try small claims court. Getting a
judgement will probably be easy, many of these guys never even show
up. However, collecting it, is quite another matter.
What does your common sense tell you? Listen to it.
--
dadiOH
_____________________________
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...a help file of info about MP3s, recording from
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____________________________
Hi,
So if we take it to small claims court, and win, what process can
we go through to ensure collection? Someone posted in an earlier post
that it was hard to collect. What all is involved in small claims
court? Could we show a video of the border falling a part?
Thanks,
- snipped-for-privacy@aol.com
-----------------------------------------
- Nehmo -
Even though I used to live in Arizona, I don't have any idea of what the
small-claims situation is in Maricopa County, assuming that's where you
are.
In any case, this is not a NG with experts on that subject. I'd refer
you to another NG, but the usenet legal groups are full of wrong advice.
Maybe this isn't a question that can be answered via the NGs.
As I already said, over here in Kansas City, Kansas, your type of claim
would be properly placed in Limited Action Court (not small claims), and
attorneys usually represent plaintiffs there.
But if you *do* go to court and get a judgment for your cause, you can
take that and use it to collect in some fashion. For example, if you
know where his bank account is, you can garnish it. There's a fee for
attempting that too, BTW.
- Anteater -
Could we show a video of the border falling a part?
- Nehmo -
That certainly would be evidence the concrete wasn't up to standard, but
_who_ is responsible for that? . Legal junk isn't black and white. It's
even possible, if you go to court, *you* would end up with a fine or a
judgment against you.
They are right. There is no way to assure collection - blood from a turnip
and all that. However, going to court is a PITA for all concerned and a
sensible potential plaintiff would do all he could to avoid it. After all,
if he is in court he can't be working. It would be much better for all to
work out a solution to your problem...straight and honest talk to the
tradesman explaining that you are dissatisfied, why you are so and telling
him you would much prefer to arrive at an amicable solution than go to court
would be my approach. In person, not on the phone. Merely knowing that you
are serious may effect a resolution.
If you do have to go to court and you win, look into what is called an
"examination of judgment debtor". If available, it is a great device. It
lets you haul the guy into court again and he is sworn...you can then take
him off in a corner or out in the hall and ask him what you will - where he
banks, where his savings are, what assets he owns, etc. You can do this
multiple times. IOW, you can make life so miserable for him that he will be
happy to pay up. It goes without saying that you can also grab his
assets...easiest if he is a wage earner as you can garnishee wages. You can
do the same with bank accounts but they can be moved/depleted/etc.
_________________________
It varies from place to place. Generally, there is a maximum amount that
you can sue for and lawyers aren't allowed. Talk to the Court Clerk, he/she
will have info and can usually help.
_______________________
You can pretty much present what is necessary to prove your case. You *do*
have to prove it. Even better would be a video AND a couple of chunks of
concrete...one of the good, one of the bad.
Finally, consider calling the TV court shows...People's Court, Judge Judy
and the like. They need a constant influx of cases and yours is different
from most that they air. And if you should get on, it would be a win/win
situation.
--
dadiOH
_____________________________
dadiOH's dandies v3.0...
...a help file of info about MP3s, recording from
LP/cassette and tips & tricks on this and that.
Get it at http://mysite.verizon.net/xico
____________________________
Are there any mandated "concrete standards" or anything that we could
refer back to as evidence? I.e. PSI it should be able to withstand,
etc.? What if he argues that that is not bad enough to repair? Some
website I looked at said that if you go to small claims court with a
product or service defect you have to prove that it would injure
somebody or cause harm besides being a nuiscance. I mean, the thing is
falling apart if you brush up by it, not totally so that you can't see
it, but enough that damage is done. Easily it would be gone in 3-4
years. I couldn't imagine what would happen when we used the weed
whacker! What concrete mix is most commonly used for borders?
I considered sending him a copy of the video I plan to use as
evidence of us destroying this 3 week old border by rubbing it with
our hands, and send him a written report/essay laying out all our
evidence, and showing we are serious about taking him to court. I had
hoped maybe he would see this and pay up. I was also afraid it would
just show him all of our evidence though and allow him to
counter-prepare. What do you recommend? Should we even contact him at
all before we take this to the courts, as when he came over here the
other day he dissapeared when I went inside to grab something to show
him, and even admitted at the beginning of our meeting that the mix
must have been done wrong in the backyard, so he obviously recognizes
it is his fault, but refuses to do anything, so contacting him might
be a waste of time?
Thanks a TON for all your help,
- snipped-for-privacy@aol.com
------------------------------------------------------
Sure there are standards...depends on the useage. For your application? No
idea. But you would have to have your crumbly concrete tested to establish
its characteristics. Testing = $$.
If its as bad as you say it is, even a layman like a judge would see so
immediately. IMO
______________________
Anytime you buy anything you have an implied warranty of merchantability.
That means that the thing needs to be suitable for its purpose. Potential
injury or harm have no bearing on that. Nor does being a nuisance. Just
being inadequate for the job - not being what you paid for - is sufficient.
_______________________
I have no idea.
_______________________
If things are as you say I can't imagine how any "preparation" he might do
would matter.
________________________
What do you recommend?
I am not recommending anything, just relating information gleaned from
having sued in small claims numerous times over a 30 year span in Hawaii.
All my suits were for non-payment of services and I never lost - including
against a state Attorney General and a candidate for Lieutenant Governor.
Many times (50% ?), just filing pried loose what was owed.
_________________________
That's something you alone have to decide. I can only repeat my original
admonition that avoiding court is better for all concerned.
If he agreed that it was his fault you have half the battle won; you need
only to get him to agree to fix it. That's a selling job. As is virtually
everything else. Either you sell him on the idea that he should fix it or
he sells you on the idea he won't.
How to sell him? Better said how *not* to do so: threats won't do it
("telling the BBB", "all my friends"), begging and pleading will do nothing
nor will yelling and screaming.
A super salesman named Elmer Wheeler used to say "sell the sizzle, not the
steak". That means to sell the benefits of the product/idea rather than the
product/idea itself. It's a marvelous concept for getting someone to do
something that they don't really want to do but you have to find a hot
button...something that makes it more beneficial to them to comply than not.
Just as an example, suppose this guy has a son upon whom he dotes...what
would be his reaction if you gently admonished him by asking if his son
would be proud of his dad's work? If he squirmed a bit, one might continue
in that vein by asking what his son's friends would say to him if they knew
his dad didn't stand behind his work? Et cetera. More squirming? Maybe
then tell him you'd really like to get the matter resolved and what would it
take (on your part) to do so? As I said, this is just an example - your
goal is to make it beneficial to and easy for him to fix the problem. If
you can't then suing is a last recourse. Good luck either way.
--
dadiOH
_____________________________
dadiOH's dandies v3.0...
...a help file of info about MP3s, recording from
LP/cassette and tips & tricks on this and that.
Get it at http://mysite.verizon.net/xico
____________________________
1. The web site claiming you have to show injury is wrong.
2. It's really simple: you did not get what you paid for. If you didn't get
what you paid for, you are legally entitled to a refund or replacement.
3. Sue him in small claims court. Take a hunk of the "stuff" (I refuse to
call it "concrete"). Maybe a couple of LARGE pictures showing the "stuff" in
situ. Judges love simple exhibits.
4. Assuming he doesn't show or you get a judgement in your favor, here's the
usual drill.
A. At some point - usually 30 days after a ruling - you can get, for just a
few bucks, a copy of "Final Judgement."
B. Take this around to the agency that enforces small claims - in my
jurisdiction it's the Constable's Department.
C. Give them some money (all these fees, by the way, are automatically
added to the judgement).
D. They send a threatening letter, a really threatening letter. Time
passes.
E. Go back to the Constable. Give them more money.
F. Constable then performs a "Levy and Execute" order. They go to the
dude's business or home and SEIZE real property sufficient to pay the
judgement when sold at auction. Usually the stuff they haul off is, in their
opinion, worth about four times the money they're looking for.
G. Ultimately, you get your money.
Forget the video; courts don't have TV sets. You've already contacted him.
Forget about further contact. Just sue him. Be sure you sue him in the small
claims court where you're a voter. The small claims court clerk is usually
happy to help.
If none of the above works, kidnap his cat.
Issue 1 - Concrete standards - if the concrete came from a ready-mix plant, the
contractor should have specified the mix - typically
2500, 3000, 3500, or 4000 psi. That rating assumes reasonably proper curing with no
extra water added after the truck left the plant
at 28 days after the pour. Concrete contractors don't seem to understand (or don't
care) that concrete should be either immediately
sealed or kept continuously wet for several days in hot weather. In 112 degree heat,
the water could have certainly evaporated
before the concrete had time to properly harden. If I were to take a guess, they
started in the front year in the early morning
when the temperatures were cool. When they got around to the back, they were taking
so much time that they added water to the
concrete still in the truck in order to slow down its hardening and make it more
workable. Adding water while the concrete is still
plastic decreases its strength. Then allowing the back to sit in 112 temperatures
without covering it (a border would be much more
exposed to the environment than a slab - would it not?) allowed the concrete to dry
out before hardening (it needs to retain the
water in the mix as long as possible for proper curing - preferably a week if not a
month). The difference in strength between day 1
and day 2 is drastic. The difference in strength between day 21 (when you noticed it
crumbling) and day 28 (when it is supposed to
reach its rated strength) is minimal.
Issue 2 - law suits - most people are not mentioning that this depends on the state
law. In Texas, contractors are almost liability
proof as long as they are willing to go out of business and later start a new
business under a different name. I have no idea about
Arizona. I can also tell you that in Texas, a decent real-estate lawyer is about
$180/hr. Telling your story might end up more
expensive than the damage. Certainly try the small claims court if nothing else
works. ...but don't be surprised if you aren't able
to squeeze blood out of a turnip.
Jeff
SMALL CLAIMS COURT will cure the concrete problem... the guy put too
much water in the concrete mix that is why it is not hard enough.. he
probably had cheap labor that did not know what they were doing.... and
used too much water to hurry the job along so they could get out of
there and go to another site to make some more money...
Well I reckon they were deliberately short on the Portland Cement, or "Dust"
as its nickname is here in the U.K, it should have been quite resistant to
"rubbing" after just a couple of days, of course to much water would have
caused the "Dust" to have not been evenly distributed throughout the Mix, it
sort of settles out , and it takes about 6 months to cure completely, also
an occaisional wetting is advisable to ensure it does not dry too quickly in
the Sun when its able to withstand a "wetting" , I believe the mix should be
1 part cement to 4 / 5 parts aggregate, thats the "stone and sand
mix"..assuming that that is whats used in the U.S as well, to little "Dust"
and it certainly will crumble and too much and it cracks which it also does
if it drys to quickly before the chemical reaction can be completed,,,much
like mixing a Christmas cake I suppose, it has to be just right !.....cant
comment on what resource to law you have of course......
Alan
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