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COMMIT TO EXCELLENCE ORCOMMIT TO LITIGATE


Our local Home Builders’ Association theme is “Commitment to Excellence.” If you think about it, perform with excellence and success will usually follow. Not only am I a lawyer, but I am also a licensed contractor and have represented many contractors and project owners in my career. The goal of this article is to minimize your need for attorney services. Since this comes from an attorney, I suggest you read on as the couple of minutes you are about to invest in reading this article could save you some significant heartache. I should also mention that though this article is focused more on contractors, subcontractors and project/home-owners will likely benefit from reading it as well.


A few years ago, when I was practicing in the Upper Peninsula, I handled a case where a widow had contracted for a remodeling and re-roofing of her home by a local contractor. Unfortunately for this contractor, he violated the Building Code in a number of ways, not the least of which was venting the bathrooms into the attic space and woefully failing to follow the Code when he installed a new roof. The widow contacted the builder numerous times to notify him of the horrendous ice damming, leaking and staining she was having in various parts of the house. However, other than sending a crew to chip some of the ice dams off, the builder took no remedial measures. When the widow had called one too many times, the contractor took it upon himself to yell at her that she should never, ever call him again. That was a big mistake.


The contractor had been informed by his crews that there was some remedial work left to be done. The actual cost to him of materials and man hours to have remedied the problem was probably less than $5,000. When it was all said and done, after I tried the case for the widow, the jury verdict and attorney’s costs to the contractor were approximately $100,000. That contractor did not choose wisely, and he paid for his decision. Lesson to be learned: (1) Do right by the customer (especially when you have made a mistake); and (2) Do not “turtle,” meaning, do not hide in your shell and do nothing.


A few years later I tried a case on behalf of Shea Homes out in Southern California. You may be familiar with Shea, as they are perhaps the largest privately owned builder in the world. In that case, Shea had built a housing development of many hundreds of homes and an issue developed with CMU walls (cement masonry units, aka block walls) and the ironwork on top of those walls. Shea was contacted by the homeowners’ association and immediately went to work addressing the problem. Simultaneously, they invited the subcontractor who had built the walls to participate in the problem-solving. The subcontractor did nothing, or more graphically, he “turtled.”


Having laid more than my share of concrete and block, it occurred to me that the reason why the walls might be failing is that their foundations had not been properly dug by the subcontractor. We sent our experts out there to test that theory, and it turned out that I was correct. Shea did the right thing, and settled with the homeowners for a relatively small amount of money. Meanwhile, the subcontractor continued to “turtle” and refused to accept blame or do anything to help Shea deal with the problem. Shea sued the subcontractor, and I tried the case on behalf of Shea. I returned home to Northern Michigan before all of the final post-judgment motions were finished, but the verdict I got from the jury, along with the reasonable estimate of what the attorney’s fees were, would lead me to believe that the subcontractor had made a mistake somewhere in the magnitude of $1,000,000. Lesson to be learned: (1) Do right by the customer, even if it is another contractor’s fault; and (2) Do not “turtle.”


I was recently contacted by a local builder who was having trouble with an unreasonable homeowner. The homeowner had made some truly illogical demands/accusations and my frustrated builder-client simply wanted to get his equipment and leave the site. Instead, I wrote a letter on his behalf and had it delivered by certified mail to the homeowner stating that we wished to fix these matters (and they were trivial) at absolutely no cost to the homeowner. That stopped the litigation before it ever started. Any of you who have ever litigated anything, even if it was your own divorce case, will know how pleasant and inexpensive litigation can be. My builder client probably spent a few hundred dollars’ worth of man hours remedying these minor issues. He could easily have spent a few thousand dollars on me in just a couple bad weeks of litigation in this case. The homeowner fired their attorney and allowed my client to fix the matters, settle up and move on. Lesson to be learned: Do right by the customer; and (2) Do not “turtle.”


Lastly, if you have questions about any of this, or if you have possible trouble brewing on one of your projects, please give me a call and maybe I can save you some heartache. The call is free and the project you save may be your own. No matter what you do, please remember two of the most important things you could learn outside of your building expertise, and that is (1) Do right by the customer (no matter whose fault it is); and (2) Do not “turtle.”


Besides being a past President of the Home Builders Association of the Grand Traverse Area and a licensed contractor, Robert Whims is an attorney at Whims Legal Group, PLC, located at 12935 S. West Bay Shore Drive, Traverse City, MI 49684. Telephone: 231-938-6099; Facsimile: 231-421-6686; E-mail: rwhims@whimslaw.com


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