Spring of 2005 we requested pricing information from Davis
Caves for building in the area in 1-3 years and on 6/06/05 received a price of
~$84/square foot.
March of 2007 we met with Ruthanne Davis to discuss our
needs and why we should hire them over others.
Finished building cost was given
as ~$100/square foot. In July Marty
visits the job site and we pay him $3000 non-refundable deposit that is to be
applied to construction costs. August 2007 the finished price goes up to
$120/square foot.
When visiting the site we discussed site prep and tree
removal in particular, at that time he gave us a figure, I believe it was
$3000, for this work. We told him we
already had a cheaper bid in hand that we would use instead. At that time Marty Davis offered to include
the work in the contract price if we let him take the wood, I replied asking if
he would be willing to leave a portion of the wood for our use since our plans
included a fireplace. He agreed. Each time we received a description of the
job I took the statements that tree removal and site prep would be included as
evidence of this agreement.
When the work was done he did indeed take most of the wood
leaving us a small stack, as if he remembered the agreement and then he demanded
$9700 for the work. In fact he now uses
removing the wood from the property as a reason he is asking for so much for
the work. If we were paying him we would
have expected the wood (our property) to be left for us.
The wood cutting was done, to the best of my knowledge, by
a crew of 3 and finished in two days.
Later he cited labor costs for additional work at $30/hour per
worker.
We had trouble getting financing for an earth sheltered
home and the bank appraisals kept coming back thousands of dollars under the
construction cost. The cost was also
more than we were comfortable with so we went for conventional construction in
the end. We closed on the construction
loan 4/23/08.
Trees cut on 5/20-21/08.
Area cleared, preparing to break ground 6/12/08. Footers in 6/21/08.
Demand for additional $9700 for clearing/removal of
trees and “dirtwork” for drive 6/23/08. I showed Marty his signed
description of materials showing the tree removal included in price, he claimed
that document had no bearing because prices were not on it, he was angry said he
did not remember writing that said he would have to decide whether he would
continue the job. We offered to pay him $3000 for this work, even though we
felt we were not obligated to do so, when the job was finished provided that
there were no cost overages or other “surprises” in the building process. Marty assured us that all the other prices
good and that there were no other surprises.
Basement walls poured (curing) 6/28/08. Forms off,
basement plumbing rough in 7/02/08.
Basement plumbing rough in finished, gravel in place. Prepping to pour
concrete floor 7/08/08. Floor poured
7/09/08.
Around this time Marty told me that his supplier would not
sell him an electric furnace to install as per the specifications of our
house. We could pay him more for a heat
pump (that we actually preferred, and had originally asked for, but they said
the earth sheltered house would need so little heat that it did not make sense
to upgrade from normal furnace and we wanted all electric) or find our own HVAC
contractor he also said that his septic contractor had fallen through and we
should hire our own septic contractor.
We did on both counts. Marty had
already pulled out $3000 from the septic line item (supposedly needed for
ordering materials for the septic system) and after the work was done a second
payment was made to Marty to give him the total amount needed to pay the septic
contractor (early September draw).
7/10 or 7/11 I was asked for exact window sizes and
placement so wall framing could start soon and when I delivered the lower level
figures I commented to Adam Davis that their prices must be much better than
those on the Andersen Window web site, as I could not get the windows for the
price in the Verified Contractor's Statement (that I refer to as the contract). Marty let me know that the windows were going
to cost significantly more than the line item for windows (and doors) of
$7300. We worked out a compromise where
we downgraded the windows from series 400 to series 200, reduced the number of
windows and doors, exchanged some windows for a cheaper style and purchased the
interior doors ourselves. This got the
cost down to about $7400 using the price list from Marty and the Andersen
Windows web site prices for the windows not listed on Marty's list. Marty then supplied us with $1560 to purchase
the exterior doors of our choosing.
Marty drew $3000 from the window line item as down payment for the
window order, and supposedly place that order in mid-July. At the time of the second draw in late July
Marty asked to put $4800 on the statement for the tree removal/etc. I refused and he said that he would trust us
to take care of it at the end of the project.
Framing continued, exterior walls were built and there was
a long wait for the roof trusses. By
8/26/08 roof was on (no shingles), by 8/29/08 wiring was being started. We selected siding and shingles from samples
and brands provided by Marty. By 9/13/08
the shingles were on as was house wrap.
L***** went into the hospital on 8/24/08 with *****, was there
until 9/06/08.
9/11/08 I got a
call from S***** from ***** Ready-Mix telling me that they had
not received payment from Marty for concrete and that she was having a hard
time reaching him on the phone, would I have him contact her? (this might have been a second call from her,
she might have made a similar call earlier, probably August, I do not recall
clearly) I called Marty passed this on and inquired as to why this had not been
paid as he had drawn the funds for it.
He explained that he had already taken care of it, but S***** must not
have gotten it yet.
We hired a local HVAC contractor to install heat pump
system, his price was $8000, which is $2000 over the contract price. He finished the rough in and billed us for
the first half.
L*****'s recovery was difficult after her release from the
hospital and we found a specialist in ***** (out of state) to consult. We were there on 9/24/08 when S*****
called me again, saying that they had still not received payment and if they
did not they would have to put a lien on our property. We called Marty and left a message
instructing him to call us and explain why Ready-Mix had not been paid. We got an email saying he had called her and
was sending a check that weekend.
On 9/30/08 we received an email from Marty saying that he
could not continue working on our house until we “get settled up on the bill
for the removal of the trees and the cutting in of the driveway.” The next day we visited the job site to find
all of his tools and equipment gone.
That day we went to ***** Title Co. to inform them of the situation and
confirmed that ***** Ready Mix had still not received payment, later we
confirmed that the septic system had not been paid for either.
I emailed Marty on 10/02/08 saying I was not certain what
payment he was waiting for, but to work with us to resolve the issue. On 10/10/08 I emailed again asking what he
was asking for and got a response on 10/11/08 saying that we needed to pay him what
he felt was owed to him. On 10/13/08 he
emails promising to get the figures together of what he wants. On 10/14/08 he demands “full” payment of tree
removal etc. and other money from septic line item and his remaining profit on
the project. On 10/15/08 he finally says
he wants the full amount as per his “original bill” he thinks it is $9800.
I had a meeting with (loan officer) who recommended paying
him off to get back to work and she tried to get a meeting
for Marty and I with her and the title co.
Marty is never available so we finally get a conference call on
10/29/08. During this call Marty admits
to not paying bills to force me to pay him more money, he felt this was the
only way he had enough leverage to get the extra money from us. I am unwilling to pay him more money at this
time, but I had done the math and knew that he had at least $12000 in unpaid
bills and a lien that would result in foreclosure on 12/01/08. Marty was unwilling to return to work or pay
the bills for fear he could no longer force me to pay him extra money. (loan officer) suggested that I pay the money into an
escrow account that would be guaranteed t be paid to Marty when he finished the
job and if he had cleared the unpaid bills before 12/01/08. We both agreed and were left to negotiate the
final amount.
In the end I agreed to pay the $9700 with terms such as
his paying the unpaid bills before we were foreclosed on. Marty then refused any agreement short of
paying him directly with no conditions.
This was untenable so I paid about $12500 in unpaid materials and subs,
told him to take the $9700 from that, return the rest and get back to
work. First he said he would consult his
schedule, then he asked for another payout.
I suggested that he put together the payout he thought he was due and
that we would meet with the bank and title company to discuss it. We have heard nothing from him since.
I tracked down Marty's supplier, called them on 12/30/08
and learned that our windows were there, but nothing had been paid on them
(Marty had drawn $3000 for them) and they would be putting a mechanic's lien on
our property in 30 days. The bill for
the windows was ~$9000 and they would check their records to see what else was
on Marty's account for our project that they would be demanding from us. I told them I would work to get them $4000 in
a few weeks if that would ease the pressure on them placing the lien, he said
it would. I spoke to J***** of
J***** Lumber 217-***-****. He told me
that he did not think there was much else on the account, but he has yet to
contact me with the amount. My
understanding is that he has been a supplier for Marty for many years and Marty
currently has other projects ongoing on account with him.
Current status of house is very near what is was on
9/13/08. There has been a small amount
of plumbing work done, but the electrical is unfinished and still in house wrap
with no windows and no ability to do much more inside until they are installed.
On 1/06/09 I got copies of the lien waivers collected by ***** Title Co. And, other than those we have supplied, they are all signed off
by Davis Caves, nothing from suppliers or subcontractors. Additionally the first draw of $24000 only
has a single waiver for $8000. The
second draw has waivers for all but the plumbing, which was paid to Marty
despite the line item listing the sub as payee. (Sub) has also worked with Marty for many years
so I have avoided calling him to ask if he received the money as I fear it will
give him the excuse to ask for more regardless. (bank) maintains that the next payout cannot be made until all lien
waivers from the previous draw have been collected.
When we questioned (title officer) (10/31/08, before we had the
copies of the collected waivers) she said (title company) had done everything correctly
and the problem was not their fault.
Marty said he was doing everything and they collected lien waivers from
him.
When we signed the paperwork at ***** Title we were told
that they made sure that the payouts were done correctly. Marty had to show receipts for materials and
lien waivers for everything. We were
also told that if the actual cost was less than the line item the difference
stayed in the loan and that Marty was not entitled to any remainders. That we could apply funds from any underages
to overages elsewhere.
Also (bank) states our contract with them makes us liable
for all of their legal costs if they go to court. They also informed me that Marty can sue them
if they pay anyone else the funds to build with, and that he has up to two
years to do so.
My research seems to indicate that the bentonite
waterproofing was not used as Marty specified..
Summery of collected lien waivers (supplied by ***** Title Co., supposed to be all collected waivers, received 1/06/09).
Dated From Amount For
7/29/08 Davis
Caves Inc. $8000.00 capenter** labor and other labor and
materials
8/23/08 Davis
caves Inc $15500.00 lumber and other labor and material
8/23/08 Davis
caves Inc $1400.00 floors and drives and other labor and
material
8/23/08 Davis
caves Inc $2500.00 footings and walls and other labor and
material
8/23/08 Davis
caves Inc $3000.00 sewer/septic and other labor and
material
8/23/08 Davis
caves Inc $1000.00 excavating/grading and other labor and
material
8/23/08 Davis
caves Inc $7560.00 capenter** labor and other labor and
material
8/23/08 Davis
caves Inc $850.00 electrical and other labor and
material
8/23/08 Davis
caves Inc $3560.00 profit/overhead and other labor and
material
Subtotal of lien waivers supplied
by Davis Caves Inc. $43370.00
9/04/08 Homeowner $3750.00 flooring and other labor and material
9/04/08 Homeowner $390.06 ceramic/plastic wall tile and other
labor and material
9/04/08 Homeowner $258.49 appliance allowance and other labor
and material
11/18/08 S*****
Backhoe* $5089.14 septic system and other labor and
material
11/18/08 M*****
Ready Mix* $7169.97 concrete and other labor and materials
11/18/08 Mr.
M***** * $300.00 septic service and other labor and
material
*These payments made from (homeowners) and not drawn from the construction loan.
**Spelling on the lien waiver.
I really should have given up before this step and saved myself money, time, and anguish as the result would have been the same. Hindsight. Back to our emails of 6/23:
