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Is this a new contract(s) or change orders to original contract?

Orange, CA |

I hired a general contractor to finish my partially built house. The contract I had with him was written like this: It had his name and address. It had bullet points that said Roofing - $11,500 (draw $8,000); Stucco - $22,000 (draw $11,000), Electrical - $19,000 (draw 11,500), Drywall Repair $7,800 (draw $7,800). Literally that's all it said with a place for me and the contractor to sign. Those were the only items mentioned. Later during the course of the project I had him give me separate bids for cabinets, driveway, and sprinkler work. His bids were the lowest so I used him. The contracts for the additional work were oral only, nothing was written. Is the additional work he did considered new and separate contracts or just change orders to the original written contract? Thanks.

Attorney Answers 3

Posted

That depends on the oral agreement. An argument could be made that they were change orders or modifications to the original contract. An argument could also be made that these were separate contracts. Without more detail regarding the oral agreements it is hard to say. However, if you tell us what the problem is that you are facing, we may be able to answer you more effectively.

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Asker

Posted

Thank you for responding. I want to sue the contractor in small claims court for problems with the roofing and the cabinets. If I can sue for the roofing and cabinets separately I can file 2 different small claims suits and not exceed the maximum amount allowed per suit. If the cabinets are lumped in with the roofing then I can't sue in small claims court to recover my damages. The cabinets were added orally later in the project and were for building, staining, and installing custom cabinets throughout the entire house. Thanks for your help.

Eric Burton Strongin

Eric Burton Strongin

Posted

Any court would require you to combine the two claims regardless of whether your claims arose from "separate" contracts. The claims are too closely related to one another and are against the same party. The small claims limit is $10,000.

Asker

Posted

Not the answer I hoped for, but I really appreciate the help. I actually have about $80,000 in damages from this contractor, but don't have a hope of collecting anything other than his measly bond amount (which I’m in the process of doing) because the guy will just declare bankruptcy if I win my case (in any court, small claims or otherwise) and get a judgment against him. Once he declares bankruptcy the slate will be wiped clean with the CSLB and he'll be free to harm some other poor, unsuspecting homeowner. It’s amazing what contractors can get away with and how bankruptcy has become a get-out-of-jail-free card for them. The only thing I can say now is that I’m wiser for the experience…and no longer trusting. Again, thanks for your help.

Eric Burton Strongin

Eric Burton Strongin

Posted

I don't think you should automatically assume that bankruptcy will be declared and you will be out of luck. There are things an attorney can do to freeze assets at the time a lawsuit is filed. I would begin with an asset search and then proceed with having a lawyer file a lawsuit along with a writ of attachment to prevent immediate sale/transfer of assets.

Asker

Posted

Thank you so much for your help!!

Posted

More than likely, the extra work would be considered part of the original contract. But if the contract is as you describe, then it is not in compliance with the Home Improvement Contract requirements. You may want to contact the CSLB about filing a complaint against this contractor. You should consult with an attorney that has experience with construction issues to make sure your rights are adequately protected.

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Posted

I have agreed with the prior answers provided, and I believe it is most likely that this additional work will be considered a change order to the original scope of the work, even though you requested 'separate bids' and sought other bids. It is not unusual for such additional work to be the subject of additional competitive bids, particularly where the existing contract does not contain any terms to prohibit another contractor from performing work on the job.
More important, however, is to understand the reason for your inquiry, which will shape the answer you receive. As noted in a prior answer, the contract(s) may not meet the requirements for home improvement contracts in California, and may subject the contractor to liability for this apparent violation. Are you attempting to terminate his performance and hire another contractor to finish the work? Are you concerned about not have a written agreement for the additional work? Is there a dispute about the payment terms and progress payments? There are many potential issues and your question does not provide enough information to permit a more thorough answer.
If you are having a problem with the contractor, I strongly encourage you to consult a local attorney regarding the issues. I would be happy to discuss this with you, and there are many competent local attorneys for this as well.

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