This is a collection of emails, expert witness assessments and legal stuff. It's here to document our particular situation and to provide examples of what you might be getting into when you have a problem builder.
Our first step was talking with the builder about our concerns regarding the quality and acceptability of the floor. Quite a bit of time and talking went on before it became apparent that Aaron Magula was not offering to fix the problem. We then set up an informal mediation to try to come to
a resolution to our concerns about the quality of the floor. This meeting included Magula and his agent, my wife and I and our agent, and the lead broker of their agency. After some discussion, we all decided to bring in an unbiased decorative concrete expert from outside of our area to evaluate the acceptability of the floor. Meidling Concrete in Spokane
was chosen as a company with extensive experience and expertise in
decorative concrete. (30 years experience, several million a year in business
and licensed in 5 states). As you can read, they didn't think that the floor
Dream Builders provided was acceptable.
Here is an excerpt from an email with Aaron Magula's response to our dissatisfaction with the quality of the floor:
"While I understand that you are not satisfied with the stamped concrete
and have since decided against concrete, the reality is that it has been
poured and finished in a workmanlike and professional fashion. There is nothing wrong with it."(Note- I added the bold and underline).
Yes, the "workmanlike and professional" Magula wrote there is referring to the floor evaluated by Meidling Concrete and you can view in the slideshow. (Oh, and btw- we hadn't decided against concrete. Not sure where that part came from.)
So then we went on to MEDIATION. Mediation is commonly included in contracts as a first step in settling disputes. A mediator goes over the evidence each party presents and then listens to the stories from both sides. He then suggests possible resolutions. Those are negotiated and re-negotiated back and forth until a resolution is found... or until the process is obviously not working. Our mediation session went on for 7 hours with us paying for our lawyer and Magula paying for his lawyer and both parties splitting the cost of the mediator. We really thought that we had an agreement, but Magula refused the agreement at the last minute and walked out. Pretty surprising- even the mediator seemed surprised. After 7 hours and that much invested in the process it was disappointing to say the least.
The next step will be BINDING ARBITRATION. This is the final resolution available from the contract. In arbitration, a retired judge or attorney who specializes in arbitration serves as an arbitrator, acting much like a judge would in a court trial. They listen to the evidence and read the documents presented by both parties and then decide how to settle the disagreement. The arbitrator's decision is binding- you have to accept that decision as the final resolution to the problem -- at least as far as the contract goes.
In preparation for arbitration, we are putting together our evidence and as part of that, got further expert witness testimony on the quality of the floor.
Here is the document provided by our expert witness in response to evaluating the photographs I sent before his actual site visit- (Note: I deleted his name and company and highlighted the juicy bit):
After actually visiting the site and physically evaluating the floor, our expert provided
the following additional testimony:
"Per my on-site inspection yesterday (2/7/12 @ 11:15 am) and conversation with you, I would make the following comments:
straightedging and performing the physical inspection of the work, I
have no changes to the letter of opinion previously forwarded.
Per my discussion, I would add that the random
cracking occurring in the slab is due to absence of control joints.
Typically, for an unjointed slab on grade, reinforcing bar at close
spacing would be recommended in lieu of welded wire mesh. As no
destructive testing has been performed, it is not apparent whether
additional reinforcing was installed at all re-entrant corners.
Esthetics aside, it is imperative these cracks be addressed prior to
placement of whatever overlay system you opt to select. This is
necessary to insure these cracks do not telegraph into the new overlay.
Only one of these cracks appeared “structural” in nature as I did
witness some differential settlement. I do not however feel you have a
significant failure. If the cracks are properly repaired prior to
overlay I believe the existing slab will remain structurally sound.
There are deviations in the flatness/levelness of
the slab that should also be addressed prior to overlay. I recommend
grinding the floor slab to a “near level” condition. Also, as noted, it
is important the existing slab be shot-blasted, ground or that some
other mechanical method be utilized to “rough” the surface and insure
bonding of the new overlay." (End of quote)