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BEWARE OF YOUR CONTRACT TERMS

The North Carolina Court of Appeals recently took up the issue of construction defects in the case of Cannizzaro v. Set in Stone, Inc., COA18-594, 19 February 2019 (unpublished).

Plaintiff, Ms. Cannizzaro, contracted with Defendant, Set in Stone, Inc., to install stone drains and to demolish and re-pour her driveway and walkway. There were four agreements in the contract: (i) the total price was $11,995.00, (ii) dimensions of the driveway were to remain the same, (iii) all work was to be done in a workmanship like manner according to standard practices, and (iv) Defendant guaranteed the work against defective workmanship for one year past the completion date.

As sometimes happens, the homeowner was not satisfied with the work the mason performed. While Set in Stone attempted to repair the defects, numerous and substantial defects remained. The Court of Appeals identified eight (8) separate “substantial defects” including jagged and misaligned edges, discoloration, boot prints, incorrect finish, incorrect dimensions, and “general unevenness.” Although there were multiple substantial defects, Plaintiff paid and Defendant accepted full payment at the contract price.

At trial, Plaintiff testified regarding the timeline of the project, that she was not satisfied, and that she was repeatedly assured that the problem would be remedied. Defendant returned to Plaintiff’s property and began working without her permission. Defendant also testified at trial. He noted that he had poured more than 100 driveways in his twelve (12) years of business and that the driveway was completed in a workmanlike manner. Any alleged issues would not impact the functionality or longevity of the driveway.

Ultimately, the Court of Appeals affirmed the decision and found that Defendant breached the contract, but did not address the workmanship issues. Ultimately, the Court noted that the size and dimensions of the driveway were an essential part of the contract. Based upon the testimony, the driveway was not built to the same specifications. Therefore, Defendant did not uphold their end of the bargain and breached the contract. The Court found it was not necessary to address the guarantees since Defendants breached the agreement on the dimension issue.

How can you avoid this issue? Be careful of your contract terms. If you wish to enter into a construction contract, please contact one of the attorneys at HSC to review the terms with you in order to assist you.

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