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  1. #11
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    Oct 2014
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    Default Re: Can a Contract Be Established Through a Payment Record

    Quote Quoting Bubba Jimmy
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    However, as an informal aside, if I was a judge I would take a dim view of a sophisticated attorney not getting something involving significant money in writing. A lot of judges will ding him on that alone.
    In my area, the more likely outcome would be the court siding against the designer because he/she is the professional in that field and is the one who should know how to accurately estimate the costs of the job. He or she should know what code issues might come up and budget for that. The court here won’t punish parties simply for not getting the contract in writing, though of course not getting it writing does present difficulties for whichever party is trying to prove the contract.

  2. #12
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    Jul 2007
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    Default Re: Can a Contract Be Established Through a Payment Record

    Courts usually take a dim view of people paying for ongoing work and then simply stopping six months into a project and claiming there was either no contract or else that some verbal quote has been exceeded when they know the job is on a cost-plus basis. Nothing about the cost-plus nature of the work has changed. Now, I have no idea what these "force majeure" issues are than came up, but oral contracts do not contain force majeure clauses. A "professional in that field" would hardly include the occurrence of a flood into either his quote or his estimate. Who will bear the risk of unexpected events that don't make performance impossible but yet more expensive in the absence of oral agreement? If this could be considered a sale of goods then UCC gap filler terms could be used, but this is not likely sale of goods. The designer is more of a procurement agent who then charges purely for his service. I'm not aware of any statutory gap filler in Florida. I would expect it to end up as a "totality of the circumstances" decision based on Florida common law, and who knows how that could come out?

  3. #13
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    Oct 2014
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    Default Re: Can a Contract Be Established Through a Payment Record

    Quote Quoting Bubba Jimmy
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    Courts usually take a dim view of people paying for ongoing work and then simply stopping six months into a project and claiming there was either no contract or else that some verbal quote has been exceeded when they know the job is on a cost-plus basis.
    The problem is that we don’t know exactly what was said about how the job was to be charged. Without that as a starting point we can speculate all day about what the deal might have been and then project out from there what the outcome in court would be but it would all be wild guesses. And, unfortunately, if the stories they tell about the conversations they had about this are significantly different then litigation will be a gamble for both sides since much would depend on the judge’s or jury’s take on which of them is the more credible. It’s a good example of why the standard advice of lawyers for any signficant contract is to get it in writing. The lawyer/client here certainly should have known better than to do this on an oral agreement.

  4. #14
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    Sep 2005
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    Default Re: Can a Contract Be Established Through a Payment Record

    Quote Quoting Bubba Jimmy
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    Courts usually take a dim view of people paying for ongoing work and then simply stopping six months into a project and claiming there was either no contract or else that some verbal quote has been exceeded when they know the job is on a cost-plus basis.
    The customer is not denying a contract. The customer has not simply stopped paying. The customer has paid the full price as quoted by the contractor, and is simply refusing to pay more.

    Your home brewed rules of thumb being duly noted, as Taxing Matters indicates, the customer may have a very different interpretation of the agreement than that suggested by the second-hand account presented here.
    Quote Quoting Bubba Jimmy
    Now, I have no idea what these "force majeure" issues are than came up, but oral contracts do not contain force majeure clauses.
    We were told what the "force majeure" issues were: The reference is to problems allegedly "caused by code enforcement and the building department that could not have been known ahead of time". What we don't know is what those problems were, or why they allegedly could not have been anticipated.

    Here, regardless of the language used, the attempt would be to argue either that the oral contract anticipated that the agreement was not for the work to be completed at the quoted price and that no matter what the project cost the contractor was to receive his full commission, or that the agreement was for the cost of unforeseen and substantial difficulties in the performance of the contract to be paid by the customer (including the additional commission) and that the issues that came up with code enforcement and the building department were substantial and not reasonably foreseeable. The initial burden of proving either argument would fall on the plaintiff.
    Quote Quoting Bubba Jimmy
    If this could be considered a sale of goods then UCC gap filler terms could be used, but this is not likely sale of goods.
    The odds that the issues identified by code enforcement and the building department relate to goods, as opposed to services, would be roughly zero percent.

  5. #15
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    Nov 2013
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    Default Re: Can a Contract Be Established Through a Payment Record

    Quote Quoting Mr. Knowitall
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    We were told what the "force majeure" issues were: The reference is to problems allegedly "caused by code enforcement and the building department that could not have been known ahead of time". What we don't know is what those problems were, or why they allegedly could not have been anticipated.
    Each contractor (construction, plumbing, electrical, installers) pulls their own permits. Just prior to when the job started and the first contractor went to pull the permit for demo work, the building department informed them that another contractor working in the building replacing windows in the entire building pulled what they called a 'master permit'. Nobody ever heard of this before and these guys had been working in this town and county for many years.

    The contractor was told that because there was a master permit no other permits could be pulled to work in the building without the permission of the window contractor or they had to wait until that master permit was closed out. There was no way they could wait and get the job done by Oct. 31. The demo contractor was totally dumbfounded.

    So my brother contacts the window contractor and works out a deal ($) where the window contractor will sign off on all the permits applied for.

    The next problem was that the owner of the condo had to sign all the applications and a POA was not good enough for the building department. The owner of record resides in another state. So the application is overnighted for a signature and instead of just overnighting it back she takes 2 weeks to return it. Then it takes the building department 3 weeks to issue the permit. They said they were backed up and short on staff. They say no work can be done until the permit is issued. That is how it started to delay the project and there were still 3 more permits to pull. Which were already in the pipeline.

    Each permit application had to be overnighted to the owner and await the return before the building department would issue the permit. It took weeks to get the signed application back and wait for the building department to issue the permits. That is the unforeseen circumstances that were caused by the building department and the property owner herself.

    Now for code enforcement. The demo work is complete and the walls and ceilings are opened up. All the sheetrock is remove from the walls and ceiling. All the other contractors come in and do their work, get inspections and except for the plumbing contractor they pass inspections. The plumbing inspector wants air relief valves installed on the hot and cold waterlines because they are 2 inches longer than he says is allowed. I still don't know what that is about. The plumbing contractor says he never heard of it before but puts in the relief valves (addition cost and expensive) and passed inspection. At no time did any inspector ask for a framing permit or say anything about it.

    The sheetrock contractor comes in and closes up the ceiling and walls. Note that there was no framing in the walls or ceiling changed. He has to call for a 'screw inspection' if you can believe that. The inspector comes and asks where is the framing permit inspection. Contractor says, "we did not change any of the existing framing nor add any framing. Inspector says, "you need to take down all this sheetrock and get a framing permit and then have it inspected before replacing the sheetrock and you can't use the pre-used sheetrock (more additional expense).

    My brother and all the contractors worked in this town and county for many years and never had these problems. It was later found out that that the person that had run the building department for 35 years retired and someone new was in charge if that makes a difference.

    How can anyone think that my brother should have foreseen these problems? I suppose that if this goes to litigation there will be lots of claims and counter claims and cross claims as to who's responsibility it is.

  6. #16
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    Jul 2007
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    Florida
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    Default Re: Can a Contract Be Established Through a Payment Record

    Quote Quoting Mr. Knowitall
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    The odds that the issues identified by code enforcement and the building department relate to goods, as opposed to services, would be roughly zero percent.
    What I was referring to was the possibility that a designer might procure goods, mark them up by his 25% fee, and then resell them. If the facts supported such a scenario then the UCC would indeed provide gap fillers. Here, there was an itemized bill stating the service fee as a separate line item. The goods in question have nothing to do with code enforcement or the building department, although if delivery of goods was impacted by such elements then that could invoke UCC force majeure gap filling, but only if the transaction was considered primarily for sale of goods. Where goods and services are combined, the court would look at which was the predominant component of the transaction.

    Now, if I found myself in court I would provide every possible argument I could. If I could characterize the transaction as sale of goods with a 25% markup for my services, thereby bringing the matter within the UCC, I'd certainly do so. If that didn't fly, I would certainly provide an alternative argument. This is just an alternative theory that might support budwad's father's attempt to be paid.

    Budwad, just for grins, have a look at UCC 2-615.

  7. #17
    Join Date
    Nov 2013
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    Default Re: Can a Contract Be Established Through a Payment Record

    First I will tell you that the client is not famous for being an attorney. Although the client is very famous and if you were to Google the name you would get over 500,000 hits. There are articles written each week about this client and how successful they are in their business. But the client is still a practicing attorney.

    The old saying, "When an attorney represents themselves they have a fool for a client". Very true.

    Over the course of the last few weeks, there was a series of emails about what the problems were, back and forth, trying to work out the differences. Then it was learned from several contractors and vender that my brother used, that the client was trying to pay them off directly so they couldn't place mechanics liens on the property and to cut my brother out of his commissions. This would violate his contracts with the contractors. None of the contractors would agree as these are people that have worked with my brother for many years.

    It was pointed out to the client that this was a potential cause of action if the matter went to the court.

    Today, my brother received payment in full. Case closed.

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