Grading Form

Question 1

Harvey Homeowner decided that it was time to replace the 50 year old bathroom in his house. The old bathroom had been done in a style he didn’t like, There was an ugly shower that he hated. He wanted to have both a new shower and a bathtub. The present bathroom had one sink and he wanted two. The lighting was poor. The window leaked cold air in the winter. The tile floor was crumbling. There was no storage space at all for extra towels, soap and so forth. The toilet was an old fashioned one which used enormous amounts of water and made a lot of noise. Harvey first thought that he would hire a plumber, electrician, carpenter and tile setter, but as he tried to work out the details it became clear that trying to coordinate all of that work would be difficult for him - and maybe impossible. He decided therefore to hire a general contractor and he chose the Better Baths company, a general contractor in our city whose advertisements state that they are experts at bathroom construction in both new and older homes. The problem that he has brought to our law office arises from the contract he made with Better Baths.

Harvey Homeowner tells us that before he signed the contract presented to him by Better Baths, he had a lengthy conversation about the job with Steve Sales who works as a salesperson and designer for Better Baths. In that conversation he explained to Steve all the faults that he wanted corrected. Steve stated that Better Baths prided itself in delivering bathrooms that homeowners loved and that they never left a job until the homeowner for whom the job was done felt really happy about their new bathroom. He told stories of how they had sometimes made major changes during construction, including ones which increased their cost in order to satisfy the customer. He emphasized that even if the changes cost them more, they never charged more than the original contract price. Harvey Homeowner was quite impressed with this statement. Since Better Baths was going to charge him $40,000 for this new bathroom and that exceeded by $15,000 what he originally planned, he was particularly happy to learn that Better Baths never charged more than the contract price.

Paragraph 9: This Agreement and the exhibits attached hereto contain the entire agreement of the parties with respect to the subject matter of this Agreement, and supersede all prior negotiations, agreements and understandings with respect thereto. This Agreement may only be amended by a written document duly executed by all parties.

Harvey Homeowner paid the first $10,000 to Better Baths on the day the work began. He was prepared to pay the next $10,000 at the completion of the rough plumbing and wiring. But when he looked at the work done by the plumber and the electrician he was shocked to realize that one of the wall switches had been placed about 18 inches to the left of where it was supposed to be, leaving it in a quite inconvenient place. He confirmed that the drawings which were attached to the contract had showed the switch in the proper location. When Steve came the next day to collect the payment, Harvey Homeowner complained about the switch location and said he was not satisfied with the work done on the rough wiring and therefore would not pay until it was corrected. Steve called the electrician who explained that it was not possible to place the switch where the drawing showed because of the presence of wiring which they discovered after the old wall was removed. While they could place a switch as shown by the drawing, the electrical code would require that a plate be placed over the old wiring. The choice therefore was to put the new switch in the old location or have to have a blank plate in the wall just 18 inches away from the switch. They had, therefore, decided to use the old location as the site of the switch since the location didn’t seem to make that much of a difference. Harvey Homeowner agreed that he wouldn’t want a blank plate in the wall, but he didn’t want the switch there either. Steve Sales said he was sorry but it was one or the other - they couldn’t avoid the blank plate if he wanted the switch as originally shown in the drawings of the new bathroom. When pressed, he said that the old wiring could be entirely removed, but since other rooms in the house were on that line, the job would require extensive additional electrical work that was well beyond the job as described in the contract.

Harvey Homeowner demanded that the additional work be done at the original contract price and said that he would make no additional payments until this matter was properly resolved. Better Baths refused to continue the work until they had received the $10,000 which they were entitled to under the contract.

Question 2

On Sunday, April 27, Bertram Buyer fell in love with a house that he saw while looking at houses with “For Sale” signs that happened to be having an “Open House” that afternoon to attract potential purchasers. Sarah Seller had lived in the house for many years. She grew up in that house and then, later in life, returned to it. In the interim she had rented it out to various families over a 40 year period. The house was in serious need of repair, but had been well built and had a great deal of charming woodwork and ornamental plaster work as well as a beautiful brick fireplace in the living room. Sarah had been cautioned by her real estate agent that the condition of the house would have an adverse affect on its sale value and that the fact that it was in an area lacking a city sewer line would discourage many buyers. The house had a septic system that had not been kept in good repair and making it compliant with the applicable plumbing code would cost at least $25,000. Sarah, recognizing the problems in the house, had set a sale price of $150,000. A house in better repair and with a city sewer line connection would have been worth at least $250,000.

Your task is to suggest arguments that you could make on Sarah’s behalf and to consider the arguments that Bertram Buyer’s attorneys will make if he chooses to seek specific performance of the contract to buy Sarah’s house for $100,000 or seek monetary damages for breach of contract.

Question 3

Your new client Tom Tint is in the process of starting a new business. He came to see you this morning, May 5, to seek your advice.

On May 2 Tom received a troubling letter from the city. The city notified Tom that it will require major alterations in the facility he planned to use for car window tinting because of the flammability of the materials he will use. The letter also notified him that he will have to make special arrangements for disposal of the waste materials used in the tinting process because of their toxicity. He has learned that the cost of those arrangements for waste disposal will be quite high. Finally, the city’s letter stated that there will be a delay in issuing a permit for this use of the facility during which inspections will have to take place. The letter estimated that inspections could be completed by August 1 provided that satisfactory alterations and waste disposal plans were completed by July 1.

Tom Tint has come to you for legal advice. Please analyze Tom Tint’s legal position in relation to Wicked Windows. In your analysis, be sure to include both the legal arguments you would make on Tom’s behalf and the legal arguments you anticipate will be made by Wicked Window’s attorneys on its behalf. You should include in that analysis a discussion of Wicked Windows’ remedies if the court finds that Tom has breached his contract with Wicked Windows. Tom has given you the Confirmation of Purchase form which he received from Wicked Windows on April 10. You may wish to consider the effect of the following provision in that document on Tom’s and Wicked Windows’ rights and liabilities:

END OF EXAMINATION