A Potential Breach of Contract by a Deck Contractor
Question: This last summer my wife and I hired a local contractor to built a patio/deck in our backyard. The contractor told us he would use high quality treated wood and design the deck to accommodate the gradual slope in our yard. After about six months, the deck became uneven, some of the boards have fallen off, other boards are loose and even some of the wood started to rot. We spent $5,000.00 on the deck and the contractor will not fix the problem or refund our money. The deck is now a danger and it will need to be removed (which will cost more money). What can we do to get the contractor to do what he promised?
Attorney Philip Hundl:
First, was there a written contract, agreement or proposal of exactly how the deck was to be built by the contractor? Did the contract/proposal specifically state the materials to be used? In addition to a possible contractor breach of contract (either oral or written) claim, you may want to file a DTPA claim. The DTPA or the Texas Deceptive Trade Practices Act, is a law in Texas created to protect consumers from false, misleading, and deceptive practices by businesses. The DTPA covers goods and services provided to consumers. A “consumer” under the DTPA may be an individual or a small or midsize company. However, prior to filing a lawsuit, it is recommended and required to send a demand letter to the potential defendant.
In your case, the demand letter should state the amount of money you seek in damages (for reimbursement and remediation expenses). If the contractor does not accept your demand or offer you an acceptable counterproposal, you may file suit after 30 days. In cases of willful and intentional deception, consumers can sometimes receive up to three times the amount of actual economic damages, compensation for mental anguish or other consequences of the deceptive act. Also, if successful, a plaintiff’s attorney’s fees may be awarded.
Please keep in mind that the statute of limitations for a DTPA claim is only two years instead of four years as in a breach of contract claim. Also, because of the lower dollar amount you may choose to litigate this matter in small claims court or justice of the peace court.
Wadler, Perches, Hundl & Kerlick has years of experience handling breach of contract claims for businesses and individuals. We have offices in Fort Bend County in Richmond and in Wharton County in Wharton and El Campo. Call us at 800-929-1725 for an appointment or send us an email through our contact form. We’re proud to say that we combine large firm legal experience with the small town values of our roots in Southeast Texas!