A carpenter had to go all the way to the South Dakota Supreme Court to get the message that written contracts are binding.
George “Jack” and Christine Muller contracted Ed Suvada to renovate their Black Hills cabin. The contract promised $131,600 plus tax for material and labor and specified that any changes from the itemized list of work and payment would be in written change orders signed by both parties. The contract required Suvada to substantially complete the project by May 31, 2017.
As of January 2018, some work on the cabin remained incomplete. The Mullers had paid all but $5,000 of their contractual obligation. Mr. Muller and Suvada argued over the phone in January 2018. Suvada did not come back to complete the work. In February 2018, the Mullers sent Suvada a letter terminating the contract and withheld $2,960 of their contracted payment amount. In March 2018, Suvada filed a lien against the Mullers’ property for $16,389.35, not for the original contract, but for extra work that he claimed the Mullers had him do. Then both sides lawyered up, and the dispute went to a jury in 2021.
At trial, Suvada provided no witnesses other than himself. He claimed the Mullers’ extras prevented him from completing the job on time. He admitted there were no written change orders. Testifying on their own behalf, the Mullers admitted that Suvada did some extra work, but they said neither the contract nor any of Suvada’s statements indicated that the project would require more time or more money than specified in the contract. The Mullers also brought their subsequent contractor to testify that, yup, when the new contractor arrived, the project was not complete, and the Mullers paid the new contractor $38,310.55 to finish the work.
The jury decided both sides had money coming, but the net verdict was that Suvada owed the Mullers $20,455.23.
Suvada appealed to the South Dakota Supreme Court on multiple grounds: the Mullers didn’t have a right to a jury trial, the court erred in granting a motion for judgment and instructing the jury, and Suvada should have gotten more money, including attorney fees.
On Wednesday, the Supreme Court rejected all of Suvada’s arguments and affirmed the circuit court’s and jury’s decisions. Centrally, the Supreme Court said Suvada presented “no evidence that the parties agreed, orally or in writing, to extend this deadline” or accommodate extra work. The Supreme Court notes that South Dakota law does allow an “executed oral agreement” to modify a written contract, but an executed oral agreement is “demonstrated by evidence that both parties completed the requirements of the oral modification.” Suvada himself said the opposite:
Suvada admitted that he never completed the work required under the contract or the “extras” for which he sought payment. Further, even though the Mullers had paid Suvada for some “extras,” they withheld full payment under the contract and did not pay the money requested by Suvada for his time spent on other “extras.” In the absence of evidence that the parties had fully executed an oral agreement to modify the written contract to require payment for “extras,” Suvada was bound by the terms of the written contract [South Dakota Supreme Court, opinion, Suvada v. Muller, 2022.12.14, pp. 15–16].
The Supreme Court did agree with Suvada that the circuit court should not have allowed the jury to consider the Mullers’ claim that Suvada committed fraud. The Mullers claimed that Suvada defrauded them by misrepresenting the availability of his son to help get the project done on time. The competing claims were all about the written contract, and the contract said nothing about Suvada’s hiring his son or anyone else. The contract just said, the work will be done by May 31, 2017. The Mullers thus couldn’t ask the jury to consider “a claimed violation of a duty that exists outside the contract.”
However, Suvada didn’t prove that the instructions allowing the jury to consider this extra-contractual fraud claim hurt him. “Here,” the Supreme Court says, “the jury awarded the Mullers nothing for their fraud claim, making the error harmless. Suvada has not advanced any argument that submitting these fraud claims to the jury inappropriately impacted the jury’s determinations about any other claims” [p. 18].
So if you’re renovating a Black Hills cabin or doing any other six-figure business, you can do all the work you want on a smile and a handshake, but if you want to make sure you’ll get paid, (a) write everything down, (b) get your clients’ signatures, and (c) do the work.
It’s true, I once, a long time ago made a portrait sculpture of Ayn Rand for this libertarian who was a friend of hers. He wanted to have it cast and put in libraries. I got paid half up front. After I delivered the oil clay model, he begged off paying me. The next day he called me and said he changed it and it wasn’t my work anymore. I found out the hard way. At least I don’t have my name attached to that woman. When I did it, I wasn’t overly familiar with her creed. The guy who hired me sure was.
Meanwhile, Lakota women are dying in the hands of the RCPD, and throughout SD:
https://www.indybay.org/newsitems/2022/12/06/18853300.php
Mark Anderson, he changed your actual original work and then claimed it as his own? What a BS excuse, under that theory I could commission some artist and then slightly modify their work claiming it as my own. It sounds as though he was a true Ayn Rand believer willing to put her theories into practice. There have been multiple court cases addressing “fair use”. I’m not enough of a legal scholar to know all the case law, but you got screwed. You should have been paid the agreeded amount and then he could do with it as he wished but could not be able to profit off selling coies of his modified work.
As an aside, if he thought he was a more accomplished sculptor than you why the hell did he commission you? Does art school have a class on contract law? “How to avoid getting screwed by pompous jerks.”
Ed Suvada is a loudmouth dick and got crossways with me in 2005 after I convinced a developer to throw him off a project in Lead.
Recall Earth hater Alan Aker pulled a similar stunt, was indicted by a grand jury and got booted from the Meade County Commission.
When I wrote a book, to get a CopyRite it had to be less than five percent quotes and the quotes have to be documented as from someone else. If a manufacturer buys parts from another and adds more to the machine, they still have to pay for what they bought. If one little part of that machine has a patent, they still have to pay for the right to use that patent, even if it is a small part of the machine. The most fraud in patent law is that many patent owners do not have enough money to hire lawyers to protect their patent. When John Deere sued KInze for using their design on planters, they lost, but in fact I think Deere had stolen ideas from Kinze and rather than get sued, they decided to sue first and let Kinze win that one so they would think they won while Kinze actually got robbed.
i think the supremes got this one right, but they botched the other opinion they released this week regarding the sufficiency of uncorroborated tips as reasonable suspicion to support a traffic stop… it might seem minor, but it’s a big gift to the coppers and a big kick in the pants for due process:
https://ujs.sd.gov/uploads/sc/opinions/298325840b04.pdf
justice myren’s dissent is the right answer on this one.
Ryan, if I recall correctly Justice Myron, appointed by Noem, also dissented in the horrible Amendment A decision. It is surprising how sometimes a flower can spring forth from a garden of weeds and poisonous plants.
Myren, not Myron – sorry.
Over the past 15 months I have received an unpleasant education on how some contractors operate in the state. I did my homework on getting a contract but when your home is torn up, a homeowner can be extremely vulnerable. I have spoken with my local state representative, the Consumer Complaint folks, and I have read up on state laws. Eventually I was able to find reliable people to do the work that remained in such a mess few would even consider doing it. State law needs to protect homeowners, not just business people.
Nick, your right, there should be a required class for artists. The wife of the head of Illustration at Ringling did the drawings for the Harry Potter books. She developed the text in her first book cover, was paid a flat fee and that text was used for everything related to Harry Potter from then on. She continued to do the book covers and illustrations for the books, who wouldn’t, but it was a lesson for the students. She did get to read the books before anyone else.
My close personal friend Lar is righter than right about the earth hater, Mr. Aker. Being a heavy-legged waist-bender, he had some issues with a fence and went out and tore down the part he claimed wasn’t paid for, if I recall, and re-sold the logs to a family from Hermosa. Almost the same thing as this blogging.
Willy Nilly….so true.
It is very hard to find competent people who will do what they say they will do.
After a major hail storm last summer, we have had $40k in work done to our home, in the last 6 months…including replacing the shingles, gutters, garage doors, front windows & screens, front siding, shed siding, and lots of little stuff, like replacing shattered porch lights, doors and dented mailbox. NONE of the contractors showed up when they said they would. They come early, they arrive late, they don’t show up at all. You make an appt to get the required estimate (for insurance) and they show up whenever they darn well please. Meanwhile, we have jobs and schedules. Much of the work is complete, and after feeling overwhelmed, we have had time, this winter, to sit back and review what was done. We were overcharged and now have hundreds of dollars of left over materials that the local Ace hardware refuses to allow us to return, even just for store credit. Menards & Lowes would let us return, but some of the heavy, larger items we bought locally so they could be delivered. … Anyone need 11 flats of Malarkey shingles? (and random other roofing items). Our roofer over-ordered, and we paid him for the materials when we paid for the job. Ace won’t let up return them, because we did not directly pay for them. The roofer strung us along, kept saying he would pick them up and reimburse us…now he has ghosted us. The contractors are all so busy, they cherry pick which jobs to do. Next time, (it will hail again, this is SD) we will get a materials list from the contractor and order the materials ourselves. That way, we can return what is not used.
If you want to know the case read the court transcript.
A. Why did the Judge find it necessary to direct the jury and stop his testimony in regards to the breach and lien?
B. the Judge’s wife is a Dana and worked along with the Muller’s in the dental industry is this why?
C. After several months beyond the finish contract date why did the Muller’s allow him to continue and not stop him then? The Muller’s who are professional in the dental industry can read a contract why didn’t they insist on things in writing? Was it because they knew and agreed to this or they wanted to use it down the road to not pay him for work?
E. In closing statement by the Muller’s attorney and Mullers own testimony they wanted to continue to work with Suvada – Really after all of this? hmm sounds like set up.