Suit against builder

[BuyLowSellHigh]

Did your contract define "construction defect"? Or does the literature from the warranty company define a "construction defect"? Did you get a written rejection from the warranty corporation identifying they do not consider this a construction defect?

It's obviously too late for you now, but others should be aware that you should never close escrow without a final inspection in which you confirm that everything is acceptable. It can be very difficult to address issues after closing.

 

[quincy]

Thank you. I'll take a look. Appreciate your help.

Can someone please help me find legal definition of "construction defect"?

I mean I know what it means and found one from dictionary, but not sure if in law world, there is specific definition for this word?

from dictionary: "Construction Defect — a deficiency in the design or construction of a building or structure resulting from a failure to design or construct in a reasonably workmanlike manner, and/or in accordance with a buyer's reasonable expectation."

The wrong bathroom tub color is not a construction defect.

If you ordered beige and they gave you white, the tub you received is a “non conforming” good. In other words, it is not what you ordered and what the seller agreed to sell to you.

You can accept the white color or you can demand replacement.

 

[quincy]

Here is a definition of construction defect:

https://www.justia.com/real-estate/home-ownership/owning-a-home/construction-defect/

 

[Zigner]

You can accept the white color or you can demand replacement.

In small claims, he can demand the cost of replacement, not an actual order for it to be replaced.

 

[quincy]

In small claims, he can demand the cost of replacement, not an actual order for it to be replaced.

He currently has a judgment, doesn’t he?

 

[zddoodah]

I asked them that I need Biscuit color bathtub.

Need?

Did I really gave up my rights to take builder to court because my bathtub issue is not really defect, it's wrong color which I think is breach of contract/agreement?

I agree that the installation of the wrong color bathtub isn't a warranty issue. Determining whether you gave up the right to sue would require reviewing the documents.

One of the document defendant filed "answer to plaintiff's complaint, affirmative defenses, and cross-claims". In this document there is one paragraph, I think I understood, but not 100% clear.

"Wherefore, defendant, hereby demands judgement against plaintiff dismissing the first count of plaintiff's complaint, with prejudice, together with costs of suit, attorneys' fees, and such other relief as the court deems just and equitable."

I understood part of this, but not fully. Sorry English is my 2nd language so if someone can please help in simple English, that would be great.

This says, in a nutshell, "Defendant requests that the court dismiss the plaintiff's lawsuit and award the defendant costs of suit and attorneys' fees and anything else the court believes is appropriate."

Also one other document says following, "Please take notice that on Fri Aug 6th 2021 at 9am, in the forenoon or as soon thereafter as counsel can be heard, the undersigned, attorneys for defendant, will apply to the above-named court, for an order to vacate the default and vacate the default judgement in the above captioned matter." - does this mean they are requesting trial after Aug 6th?

No. It means a hearing will be held on the motion to vacate the default and default judgment on August 6, 2021, at 9:00 a.m. The court won't set a trial date until and unless it determines that the default and judgment should be set aside.

 

[samir1]

Did your contract define "construction defect"? Or does the literature from the warranty company define a "construction defect"? Did you get a written rejection from the warranty corporation identifying they do not consider this a construction defect?

It's obviously too late for you now, but others should be aware that you should never close escrow without a final inspection in which you confirm that everything is acceptable. It can be very difficult to address issues after closing.

thank you. "Construction Defect" is not defined in contract. I ended up withdrawing my 2/10 warranty claim as they said it is excluded from the warranty.
I did had final walk thru before closing, unfortunately walk thru was done in winter so it was little dark outside and you can't tell difference between biscuit color and white color unless you see it in day light. This is something we noticed after closing.
But yes, lesson learnt that when we go to walk thru before closing, take your paperwork to make sure build did everything correctly as you asked for. I guess now my only option is continue to fight and hopefully I'll win. If not, forget it and move on.

Thank you all for your help and quick reply to my posting.

 

[Zigner]

He currently has a judgment, doesn’t he?

Yes, but not for replacement

 

[quincy]

... I agree that the installation of the wrong color bathtub isn't a warranty issue. Determining whether you gave up the right to sue would require reviewing the documents. ...

Express warranty. That what was ordered would be what was delivered.

For how much is the default judgment?

 

[samir1]

He currently has a judgment, doesn’t he?

I have default judgement since defendant failed to appear, but now they filed motion to vacate default and vacate default judgement.

 

[Zigner]

thank you. "Construction Defect" is not defined in contract. I ended up withdrawing my 2/10 warranty claim as they said it is excluded from the warranty.
I did had final walk thru before closing, unfortunately walk thru was done in winter so it was little dark outside and you can't tell difference between biscuit color and white color unless you see it in day light. This is something we noticed after closing.
But yes, lesson learnt that when we go to walk thru before closing, take your paperwork to make sure build did everything correctly as you asked for. I guess now my only option is continue to fight and hopefully I'll win. If not, forget it and move on.

Thank you all for your help and quick reply to my posting.

On your final walkthrough, did you sign something saying that everything was satisfactory? If yes, then you may have a problem. What you are describing is not a "hidden defect" that you could reasonably claim was not visible to you.

 

[quincy]

I have default judgement since defendant failed to appear, but now they filed motion to vacate default and vacate default judgement.

Does the judgment cover the cost of replacement?

 

[samir1]

Does the judgment cover the cost of replacement?

No, small claims max is $3k and estimate for replacement is $3800 as surrounding tiles are also needs to be replaced

 

[Zigner]

No. It means a hearing will be held on the motion to vacate the default and default judgment on August 6, 2021, at 9:00 a.m. The court won't set a trial date until and unless it determines that the default and judgment should be set aside.

Careful - you overlooked this:

"Wherefore, defendant, hereby demands judgement against plaintiff dismissing the first count of plaintiff's complaint, with prejudice, together with costs of suit, attorneys' fees, and such other relief as the court deems just and equitable."

 

[LdiJ]

Thank you. I'll take a look. Appreciate your help.

Can someone please help me find legal definition of "construction defect"?

I mean I know what it means and found one from dictionary, but not sure if in law world, there is specific definition for this word?

from dictionary: "Construction Defect — a deficiency in the design or construction of a building or structure resulting from a failure to design or construct in a reasonably workmanlike manner, and/or in accordance with a buyer's reasonable expectation."

Look up the definition of the word "defect". The wrong color item would not normally be a construction defect. It would be a mistake or breach of contract.

Are you aware that tubs can be refinished to change their color? You might also want to check into that. You might get the builder to agree to reimburse you for that easier than getting him to install a whole new tub.