Asked in Civil Litigation and Construction Law for Texas

Q: We had a contractor do some work. inspection done, not great, can we sue for the labor we paid.

We had a contractor come in to remove existing framing and put in new framing per plans. Most of the studs are anywhere from 13 to 21 inches apart and warped studs, per inspector. He also did not follow plans. We do not want this contractor back on the property. Can we sue for labor and cost of inspection.

1 Lawyer Answer
John Michael Frick
John Michael Frick
  • Construction Law Lawyer
  • Frisco, TX
  • Licensed in Texas

A: When a contractor does non-conforming work, you have the choice of either accepting or rejecting such work.

Non-conforming work is work that is not defective but which fails to conform to the plans.

Think you wanted the paint to be salmon in color but instead they used coral paint. There’s nothing wrong with the paintwork but it’s a different color than specified in the plans.

If you accept such work, you must pay the contractor for it, although you may be entitled a deduction to the amount if the value of the work as performed is less than the value as planned. For example, if the salmon paint cost $1 more per gallon than the coral paint, you’d be entitled to deduct $1 for each gallon of paint used.

If you reject such work, the contractor will be obliged to do what is necessary so its work conforms to the plan requirements. In our hypothetical, apply a coat of salmon paint over the coral.

Your best option is to give the contractor notice that you are rejecting the framing as being non-conforming and demanding that it “cure” by redoing the work in accordance with the plans.

If it refuses to do so within the time specified in your contract or within a reasonable time if no time is specified, you can terminate the contractor for non-performance, hire a replacement framing contractor to redo the work, withhold the cost of the replacement contractor from any amount you owe the original contractor, and sue the original contractor if you have to pay the replacement contractor more than what you withhold.

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