“Dear Attorney,

I hired a company to lay sod at my house last month. They were unprepared and didn’t finish all of the work on time. Worst of all, they put down the fungicide too late and now all of the new grass has died. They recently sent us a final bill, but we haven’t paid yet because the work was not done well AND all the new grass died. We’re worried because now they are threatening to bring us to small claims court.  How should I prepare in case they actually do file a lawsuit against us? ” – Frustrated Homeowner

 

Dear Frustrated,

We see this a lot when homeowners enter agreements with companies to come perform work on their houses. Frequently, even though the work is not done properly or is not completed, the company sends the homeowner a final invoice. This can be a frustrating and even scary experience because homeowners are left uncertain if the work will ever be completed or fixed, and what, if anything they owe to the company.

If you believe the company has not performed the work that was agreed to under the contract—i.e., laying the sod and putting down the fungicide in the time period delineated in the contract, you may have a fighting chance if they take you to small claims court.

All of these cases differ, so here are a few important things to take into account:

Did the company tell you when the work would be completed?

If the company gave you a timeline for when the work should be finished and did not honor this timeline, they may have breached the agreement.

Was it necessary for the fungicide to be applied right after the sod was put down?

If so, you have a strong argument that the company breached the contract by waiting too long to put down the fungicide, and as a result, your new grass did not survive.

How is the rest of your yard currently doing?

Even if the rest of your yard is currently doing great, it does not necessarily mean it is the company’s fault the new grass died.  However, if the rest of the yard is doing great and has been maintained in the same proper fashion by you, this may strengthen your argument, the company made mistakes.

One phrase you will frequently hear attorneys say is: you cannot breach a breached contract. Put simply, this means that if one party has already breached the contract the other party should not be found to have subsequently breached the contract. In your case, it is possible that the court would find that because the company failed to apply the fungicide in the appropriate amount of time, that they breached the contract with you. Additionally, the court may find that you did not receive the benefit bargained for under the agreement—i.e., new, living grass. If the court were to find this, your argument that you do not owe final payment on the invoice will probably be the winning argument.

It is important to remember that all agreements and situations are different. Therefore, it is important to make sure all of your documents and facts are in order before attempting to fight any final invoices.  Writing out a list of important dates and the documents that are relevant to those dates is the best approach.  It helps you organize your case and keeps you focused in court.

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S. Hunt Harris, Esq. practices civil litigation, business litigation, and addresses corporate law matters at Weaver | Budd, Attorneys at Law. To schedule a consultation with him, please call (704) 841-0760. The information contained in this article is general in nature and not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and S. Hunt Harris or Weaver | Budd, Attorneys at Law.

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