A Question for Lawyers

[Allisonfaye]

Sometime in March, we signed a contract to sue our builder because they refused to fix our hardwood floors and they essentially ruined our tile in our entry hall. The issue with the floors is that every winter when the heat comes on, they have these huge gaps that open up and debris gets caught in them. Even the company that installed them couldn''t say that it was acceptable. For 3 years, they told us that it would get better and that ''they would take care of us'' and then flatly one day, said they weren''t going to do anything. So we hired an attorney that was recommended by our real estate lawyer. When we signed the contract with the lawyer, he basically said that he would only contact us if something happened so he wasn''t going through our retainer and increasing billable hours for no reason. Sounds reasonable. But now, I wanted to confirm the suit being filed and see if the builder responded. I have left three messages over the last 2 or 3 months and the guy won''t return my calls. What do you think I should do? If I terminate with this lawyer, we probably won''t find another lawyer. I honestly think the chances of us winning are next to nothing. To be honest, I did it more out of spite than thinking I would win. I hate this builder. (We gave the lawyer a $5k retainer and our fees are to be maxed at $7,500).

 

[Irishgrrrl]

Allisonfaye~

I''m not a lawyer, but I''m a paralegal for a small law firm and we handle this kind of case very often. Having been on the other side of this exact situation (too many times to count), here''s my advice:

You stated that you called the lawyer''s office and left messages for him three times over the past two or three months and you haven''t received a call back. This doesn''t surprise me. The attorney I work for is VERY busy and, while he does make an effort to return phone calls, it just doesn''t always happen. You''ve heard the expression "the squeaky wheel gets the grease?" BE the squeaky wheel! Call every day if you have to until you get a response. If the lawyer isn''t available, ask to speak to his paralegal or assistant. She might be able to answer your question without even getting the attorney involved. She probably will have to bill you for her time, but she probably bills at a MUCH lower rate than the attorney does, so speaking to her will use up a much smaller chunk of your retainer than speaking directly to the attorney would. (Just as an example, my hourly rate is about half of my supervising attorney''s.)

Good luck!

 

[DivaDiamond007]

I''m a paralegal too and I second Irish''s suggestion. Also, call the clerk of the court where the suit should be filed and they should be able to tell you the status over the phone - i.e. if the suit has actually been filed and/or if service of process has been perfected. If there is good service usually a settlement pretrial is scheduled. Good luck!

Diva

 

[littlelysser]

Allison - I''m an attorney (no longer practicing, but that is neither here nor there), and I have to say that this lawyer''s treatment of you is ABSOLUTELY INEXCUSABLE.

First, I''m not sure what he meant by "if something happens." You hired him to file a complaint, correct? And he won''t even confirm if he''s done that? You are paying him money. It is simply not your responsibility to try to check up on him and do his job for him. Further, if something were filed, he should have made SURE that you were given copies of everything filed.

Were it me, I may contact the lawyer that referred you to this attorney and tell him what is going on. At the very least, he should know that he is referring his client to a subpar attorney. He may also be able to get answers from the man much quicker.

ALthough to be honest, I''m not sure I''d want this guy representing me at all. I''ve worked for several law firms in my career and there is NO WAY we''d ever treat a client that poorly. Not returning a phone call for months is so freaking irresponsible. Can you tell this makes me mad?? If you do want to terminate the relationship, I would terminate him IMMEDIATELY and ask for a FULL accounting of any and all billable work he did for you - and of course, ask for a return of the retainer.

As for the merits of the case, well, I can''t really speak to those - but it seems like the case isn''t a total dog to me.

 

[Allisonfaye]

Date: 8/19/2008 11:38:27 AM
Author: littlelysser
Allison - I''m an attorney (no longer practicing, but that is neither here nor there), and I have to say that this lawyer''s treatment of you is ABSOLUTELY INEXCUSABLE.

First, I''m not sure what he meant by ''if something happens.'' You hired him to file a complaint, correct? And he won''t even confirm if he''s done that? You are paying him money. It is simply not your responsibility to try to check up on him and do his job for him. Further, if something were filed, he should have made SURE that you were given copies of everything filed.

Were it me, I may contact the lawyer that referred you to this attorney and tell him what is going on. At the very least, he should know that he is referring his client to a subpar attorney. He may also be able to get answers from the man much quicker.

ALthough to be honest, I''m not sure I''d want this guy representing me at all. I''ve worked for several law firms in my career and there is NO WAY we''d ever treat a client that poorly. Not returning a phone call for months is so freaking irresponsible. Can you tell this makes me mad?? If you do want to terminate the relationship, I would terminate him IMMEDIATELY and ask for a FULL accounting of any and all billable work he did for you - and of course, ask for a return of the retainer.

As for the merits of the case, well, I can''t really speak to those - but it seems like the case isn''t a total dog to me.

Thanks to everyone for your input.

The reason I think this will be hard to win is because in his research, the lawyer knows of one other lawsuit against the builder and it has been dragged on for years. I think the homeowner is suing them to get their windows replaced and as far as I know, their windows spontaneously break for no reason. But there could be more to it than I know.

 

[strmrdr]

question:
The cracks are only in the winter and in the summer they are tight?
I bet its natural wood?

 

[Allisonfaye]

In the summer they get tighter but not completely closed. Not sure what you mean by natural wood?

You can fit a nickel in the cracks in the winter. They look absolutely awful. I am afraid if we let this go, WE will be sued when we eventually sell the house. Talk about a no win situation.

 

[strmrdr]

If they were laminated wood they wouldn''t expand and contract.
So they must be natural.

The problem is the wood wasn''t properly sealed and it was installed wet so when it dried you get the huge cracks which get much worse in the winter.
There may be an installation issue but the biggest problem is improperly sealed wood.

 

[AGSHF]

Allisonfaye,

Just a quick reply...I''m not sure if the time since completion of the project or your initial complaint would still allow this (given statute of limitations issues), but have you considered filing a complaint with the BBB, the Consumer''s Division of the Attorney General''s office or corresponding division of your state''s builder''s association or all of the foregoing?

A private lawsuit is easy for the builder to drag out and may not be distressing enough for him/them to be worried about. An inquiry from the AG''s office or a complaint filed with the BBB/builder''s association might get their attention. Sometimes, you need to enlist "bad publicity."

Regarding your retention of a lawyer to file suit, I would be very unhappy if I wasn''t hearing back from my counsel about how the claim/case is being handled and proceeding. At the very least, you should be copied on all correspondence demanding corrective action, threatening legal action, filing lawsuit, etc. There are no legal "fees" earned unless there is billable legal work done, right? I''m not sure what is preventing your lawyer from initiating the case, especially since three years have passed since the work was completed. The unreturned phonecalls should be a red flag as well.

Also, regarding your concern about being "sued" when you want to sell the house, there''s a relatively "easy" solution--full disclosure of the problem to potential buyers. You can either get the problem fixed before you sell the house or disclose the problem and be prepared to adjust your selling price accordingly.

I hope you get a satisfactory resolution.

 

[bebe]

Do you have a state agency that protects the buyers of homes? Here in Texas we do, but I understand it''s under fire.
Anyway, I wish you luck. As a past custom home builder, I know how important it is to address problems in the new home when they come up. Also 3 years is a long time to wait to see if the floors get better. Wood reacts to it''s environment, hot,cold,humidity etc.. I have wood floors myself and in certain areas, I get a few gaps, but nothing serious. But if you were told they were installed poorly, then I suspect they were. I have a funny feeling here that your builder might be trying to wait you out, if so, then shame on him. Keep us posted.