Thinking of taking my patio contractor to small claims court UPDATE with new picture

[Vacation Lover]

Okay, here's the back-story. We recently installed a large patio & fireplace in our backyard. The contract we signed was basically a printout of the quote --it didn't have a picture of the final structure or anything like that. I gave the sales rep a picture of what I had in mind, and we went by that.We paid half up front with the final payment due upon completion.

When we ordered the fireplace they suggested for us, we were shown a picture of a fireplace with a square, dark copper-colored decorative cap. Apparently the manufacturer stopped making those caps and now the cap that comes standard with the fireplace we ordered is different. We were not told this until it was installed on our fireplace and we questioned the different.

We love everything about the patio & fireplace but we HATE this cap! The first thing I see when I look out my kitchen window is the sun glinting off of this round silver cap. Since we never approved that cap, and were shown something totally different when we signed the contract, I think the company should pay for a decorative shroud to hide the ugly cap. That's where the conflict comes in.

The sales rep agreed that the silver cap doesn't look like it goes with the rest of the fireplace and that we were shown something different when we ordered this fireplace. She then gave me a quote of $2,200 plus $400 installation for a decorative copper cap. I had already had "words" with this sales rep during the installation process (long story there, but not really relevant to the story, except that she's incredibly rude and we were unable to work things out.) I about blew my top at this quote; we had already put over $16,000 into the patio & fireplace. Needless to say, we are now working with the owner of the company. (And, yes, we paid them in full upon completion, thinking they would work with us on finding a solution to the cap issue, so no chance of getting things worked out that way.)

After a lot of research, we came up with 2 less-expensive options than a copper cap. The one my husband and I like best is a decorative shroud in painted steel that covers the silver cap. The owner of the company gave me a quote of $1,400 retail for the shroud, but she would do it for $900 (most likely her out of pocket cost). I don't think I should have to pay a penny more since I didn't get what I ordered, but I told her that if cost was $900, I would split that with her and we could each pay $450. She said no, absolutely not, that she's sorry if I misunderstood that the out of pocket cost was $900, but she can't do it for less than $900. I told her that I would consider my options after talking with my attorney and she pretty much hung up on me. I talked to "my attorney" (my dad, a retired attorney in another state) and he pointed me in the direction of small claims court. I feel a little silly that this has come down to a battle over a few hundred dollars, but at this point, it's almost the principle of it as much as the money. (But if we take them to court, we'll be asking them to cover the entire cost of getting it fixed, not half.)

Here's a picture of the finished product:

Thanks for letting me vent about this annoying issue. Comments/suggestions?

 

[My sister's princess]

Have you spoken to the manufacturer? Sounds like it was more their "bad" than the contractors.

 

[scrapquitler]

I agree with the PP. You should try contacting the manufacturer and explain to them that the item you got was not the item as pictured in their catalog. Then have THEM provide a solution.

I also think that once you stated "ATTORNEY" the company is not likely going to talk to you without YOUR attorney talking to theirs.

 

[ancestry]

I talked this over with my husband who has a degree in construction management and is an AIC certified associate constructor in addition to having other certifications.

My husband's perspective is that there are problems here on both parts.

The contractor/installer should have contacted you, the client, as soon as they discovered the part you wanted was no longer manufactured and should have made an attempt to offer you similar alternatives prior to installing the silver substitution.

The wrong on your side was not getting a detailed written specification for the project (including that piece) before any work began.

However, my husband doesn't feel that you have a legal case (different than being ethically right) unless the contract/quote you signed has the specific part number of the discontinued piece in it or a very explicit description of what you wanted. If you don't either of these descriptions then you don't have grounds to prove your case -- all you have is word of mouth which doesn't hold up in court usually.

If your contract/quote has the specific part number or detailed description of the item then the court will view it differently and you have a better chance at winning your case.

My husband said that owner of the company is probably losing money as well on the $900 offer. The $900 is probably the owner's out of pocket cost for materials alone. The owner will probably have to eat the labor cost for installation so offering to split the $900 isn't a 50%-50% split on the loss.

 

[goofy4mykids]

I am not one to sue but if you ordered a blue mercedes and the dealership gave you a green one telling you they no-longer make blue (after you paid for your car) you would be hoppin mad !! Its not the sales persons fault but someone needes to make/help the customer become happy with the thousand dollar purchase. I do not know what is happining to customer service.
Just an FYI if you have your heart set on a "LOOK" dont give up on it. just because the manufacture is nolonger making it dose not mean it is not in stock at some stores. Call the manufacture on your own see who they deal with local and call them for your cap. and sue for a refund.

Good Luck

 

[Disneybuckeye]

My first comment is you fireplace is very pretty. My next question is can it be spray painted to the color you want? I used black high heat spray paint to change the color of our fireplace screen. Just a thought and good luck.

 

[Vacation Lover]

Have you spoken to the manufacturer? Sounds like it was more their "bad" than the contractors.

Hmmm, it's worth a shot. I'll try calling them in the morning. I have a feeling though, that the manufacturer updated the contractor on the change but the contractor was using outdated sales material.

The wrong on your side was not getting a detailed written specification for the project (including that piece) before any work began.

Yep, he's right about that...lesson learned!!!!

My husband said that owner of the company is probably losing money as well on the $900 offer. The $900 is probably the owner's out of pocket cost for materials alone. The owner will probably have to eat the labor cost for installation so offering to split the $900 isn't a 50%-50% split on the loss.

Okay, thanks for this info. I kind of thought she was lying about the labor costs when she back pedaled about out of pocket cost when I offered to split it.

 

[Vacation Lover]

My first comment is you fireplace is very pretty. My next question is can it be spray painted to the color you want? I used black high heat spray paint to change the color of our fireplace screen. Just a thought and good luck.

Thank you, and yes, we may end up doing just that if we can't reach an agreement.

 

[KeepSwimming]

My brother in law is a contractor, and I can tell you that once the, "I'll speak to my attorney" verbiage is tossed out then the negotiation and desire to satisfy the customer is over for him and his staff. Usually after that he contacts his own attorney and insists all further communication be made in writing, or attorney to attorney. I think it's fair to say that small businesses perceive that "I'll be contacting my attorney" line as a bullying tactic, and most of the ones who have been in business long enough don't put up with it when they believe they are in the right (legally, not necessarily morally).

I wish you the best with this. I know it isn't what you wanted, but the patio looks amazing to me.

 

[Vacation Lover]

My brother in law is a contractor, and I can tell you that once the, "I'll speak to my attorney" verbiage is tossed out then the negotiation and desire to satisfy the customer is over for him and his staff. Usually after that he contacts his own attorney and insists all further communication be made in writing, or attorney to attorney. I think it's fair to say that small businesses perceive that "I'll be contacting my attorney" line as a bullying tactic, and most of the ones who have been in business long enough don't put up with it when they believe they are in the right (legally, not necessarily morally).

I wish you the best with this. I know it isn't what you wanted, but the patio looks amazing to me.

Yeah, I really wish I hadn't played the attorney card just yet! She just had me so flustered that it slipped out. Oh well, I'll keep everyone updated.

 

[chloelovesdisney]

The filing fee for small claims court is minimal, so it's worth a shot.

 

[janey99]

My DH is a Landscape Architect. He said your fireplace looks like a pre-designed kit to him. If that is the case I would speculate that your quote described an "item number" or "name" for the entire fireplace kit and likely the seller does not actually represent anywhere in writing that you will receive every single component exactly as you may have seen in "artist renderings" the salesman might have showed you. In fact, promotional materials might even have a disclaimer that what you were showed was only a "representation" of the final product and certain details might be different.

Only you know what your quote/contract said. You need to read it carefully to determine what your seller's obligations were and what rights you may have.

Good luck!

Jane

 

[mtblujeans]

....Here's a picture of the finished product:

...

My only input:

1. That is a gorgeous patio and fireplace!!
2. I hope you get the situation resolved to your satisfaction.

 

[lost*in*cyberspace]

Getting involved with the court system is the last thing you should do. Take the owner's offer of additional payment of $900 to fix this. It isn't worth your time to keep fighting about this.

 

[kidshop]

The fireplace is beautiful! I think b/c you 'accepted' the cap when it was installed and paid your bill in full, you don't have much recourse. I've had a lot of work done on our house and you have to make the stink immediately and not let them blow you off.

I would take them up on their offer for $900 or just spray paint it!

 

[Mickey527]

Wow, that fireplace is georgeous. It is exactly what I want, I am going to show that to my son tonight, he is going to build one for me.
I would get the top painted. they do have spray paints that mimic stone, spray some on cardboard, wrap the top and see if it is the color that you want. Try the same with a few different colors to make sure it is what you want before you paint it.

 

[Disney845]

I agree with some of the previous posters. It will really come down to what your contract stated.

For example, my company provides contractors (totally different field than landscape design though) with products. It is "common practice" to not put item number or even brand specific information on a quote or invoice to the end user (you in this case) for two reasons.

First, items change, manufacturers stop making things, they get backordered, etc, etc. Second, they don't want you shopping around on the internet and trying to price compare.

Also, as another poster indicated, even if you were given the exact model number/exact description, there more than likely is a clause that items may not always be as pictured (color lots change, available materials, etc).

Finally, your opportunity (and this also might be outlined in the contract) to make any complaints/changes, etc, would have been before you issued final payment on the job. By paying them you are literally saying that they completed the job to the specifications laid out in the contract and you are thus holding up your part of the contract by paying them the remainder of the fee.

As a side note, not sure about the laws in your state, but even if you did take them to small claims court and won your case (which I am hesitant to think would happen) it is very hard to actually collect against someone (we offer trade terms, and have had people default on us, and have had to proceed with claims against them). Just because you get a judgment, it doesn't stop there, you have to actively pursue collection (the court doesn't do this on your behalf). You could "win" but be no closer to getting what you want out of the arrangement, and then be out several more hundred in the small claims fees (filing fees, paying a sheriff to serve, etc).

 

[WeLuvDCL]

I agree with most that it's not worth the trouble. Either pay the $900 (if they are still willing to work with you) or just paint it. But I encourage you to repost your story on www.yellowpages.com and www.angieslist.com. If you had trouble dealing with them I would want to know if I was about to hire them. And make sure you mention the salesperson by name and just stick to the facts.

Just as a side note. The patio is not level. The fireplace is built up more on one side. I realize your back yard is not even but they should have known that from the start and arranged to bring in dirt to make sure the patio was level. But maybe that's what you wanted/agreed on?

 

[Disneyliscious]

Just as a side note. The patio is not level. The fireplace is built up more on one side. I realize your back yard is not even but they should have known that from the start and arranged to bring in dirt to make sure the patio was level. But maybe that's what you wanted/agreed on?

I noticed this too, however the fireplace itself is perfectly level. Maybe the angle of the patio is to accommodate rain run-off?

I also think this should have been dealt with before the final balance was paid. A court will tell you that paying your remaining balance was agreeing to the work performed.

I would call another company and see what they say could be done. If its the color of the cap that bothers you, I highly doubt that every single cap of the color of your choice was dis-continued. Somewhere, there is a cap that will fit in the color you want. Painting will be cheaper in the short haul, but all paint flakes and cracks.....especially when exposed to heat. What will the cost be to have someone scrape it and re-paint it every few years? You may be cheaper to just replace the cap. However, due to my own embarrassment from throwing the attorney card, I wouldn't deal with the same company. I do agree they were in the wrong for not telling you of the new cap, but you have already agreed to it by paying them.

 

[tlbwriter]

Whether or not a specific model was listed in the contract, it seems like the difference between "a decorative cover over the vent" and "no decorative cover over the vent" should be a no-brainer... if it didn't show up with the kit, they should have realized something was amiss.