California Surveyors Forums

I was recently contacted by an individual from a "networking" firm to perform surveys on behalf of his clients. He wanted them done ASAP. Over the phone,
we made a deal and agreed to "handle the paperwork" (i.e. contract) later. I did the work in good faith in the next few days. Now he won't pay.
He wanted work done the next day. I tried to be a nice guy and accommodate him. I understand working without contract is a violation. I took a chance I shouldn't have and lost. Bad move on my part.

?? I am considering small claims lawsuit. Is this a wise idea given I do not have a valid written contract to present to the court? I'm afraid it could backfire.

The work consisted of merely setting line only points between found accepted corners. In one case I replaced destroyed corner and filed CR..

??I'm thinking removing set corner per CR is a no-no or at least a bad idea. There has been no use or reliance on anything I set. Not yet at least.
But what about the line only points? Any reason I can't, or shouldn't yank em?
Thanks.

TIB

first explain how you know that "there has been no use or reliance".
good luck

You say that you did the work before a contract was in place, but did you ever prepare and send one to be signed? Still a violation but a small claim judge might take it into account.

I'm a bit confused though. You had time to do enough fieldwork and calcs to 1) determine boundary locations, 2) determine that a corner mon needed replacement, 3) to replace that mon, 4) to prepare a CR, and 5) to file the CR, and 6) to prepare and send an invoice, but during that time you couldn't fit in executing a contract?

I think that you might be able to get a judgment in SC, but that your concern that it could backfire on you is a valid one. It's a gamble. I also think (hope) that you learned why having the executed contract in hand, particularly when working with a new client, is not only the law, but is also a matter of basic business sense.

Due to the contracting lapse in judgment, you already have some licensing disciplinary liability hanging over you. If you pull the corner shown on the CR, you would be making that liability a whole lot worse. It's an extremely bad idea. The line stakes are a little iffy and it probably depends upon several circumstantial factors. One thing certain about that is if you do pull them, then you will have zero chance of ever collecting any of your fee. But that's probably the least of the consequences or circumstances that you may need to consider.

You've put yourself in a vulnerable spot by doing work for an unscrupulous party without first having the legally required contract executed and you'll be fairly lucky if the most it costs you is the fee the "networking" firm tricked you out of.

Not only is working without a contract a violation, it is poor business. You should consider taking a night class on contracts. You have to be a surveyor and a business person. In addition, you must file a record. That is your problem. Lesson learned I hope. Do the right thing.

BTW, you should file a small claims lawsuit. You can waive a contract between licensees if agreed. Notwithstanding everything, I would file the lawsuit.

FYI, oral contracts are enforceable in California.

https://www.sandiegobusinesslawyerblog. ... owner.html

The problem I see is not the enforceability of the contract. I would bet that since the client had the nerve to talk TIB into doing the work without a written contract, that they also have the wherewithal to threaten to turn him into the Board for working without a written contract if he files suit.

Not piling onto TIB here but offering that CLSA has a great member resource in a 1-page contract that complies with the PLS Act. If I've ever sent it to a client that needed something the next day, they signed it and sent it back. When they didn't, they obviously didn't need it the next day. When in a rush I've hand-filled the form out in 10 minutes, sent, and if it didn't come back, I didn't show up.

I was warned many years ago that a potential client who wants it now, or tomorrow and at any cost wasn't going to pay you anyway.

Cutting to the chase, how much was the contract for?

I had a call once after a rainstorm where a hillside driveway was blocked. The owners could not determine whose property the mud came from and needed the property lines in that area.
We arrived on site with a contact that my client said she would sign, copy and return to me. We located the corners so the owners could see where the PLs were and let them decide on who removed the mud.
She doesn't return the contract or pay. She calls another surveyor and he gives her a lower price. I filed small claims.
First time she doesn't show, her daughter says her mother has a leg/hip issue and was too sick to come to court. The not yet a judge says I have to reschedule, I say "No show in small claims is default". he rules against me.
2nd court appearance she shows up dressed like a bag lady. (Her parcel was over an acre overlooking all of Rho Sta Margarita). The judge doesn't not rule right then, you get notified by mail. The judge ruled in my favor. She appeals.
3rd court appearance she again shows up dressed like a bag lady and the judge says "Why are we here". Again I get a letter stating it was ruled in my favor.
She didn't pay. I filed a judgement to go after her wages then she paid.

A contractor told me years ago, I'll spend $5000 to collect $100, no one gets off without paying.

Thank you for sharing your experience. It was good continuing education for me. You wanted to help someone, nothing wrong with that. I think you chalk it up to a should'a known better experience and move on.

Evan: The job with CR was a simple lot of a sub map. A box. I replaced a destroyed corner. Got the map, did survey, set mon, drafted CR, within 24 hrs. mailed it next day. All jobs done in 3 days. Mailed invoice and contract on 4th day. But as you said, he may be savvy enough to turn me in to board. That is my worry.

Mike: I am a good surveyor but not so good in business. I'd be first to admit that. I accept my poor judgement is my fault. But night classes on contracts? C'mon. Really? Is there such a thing? What would I learn? Don't do it again? I already learned that lesson. My education cost for the lesson was about 3 grand.

Marchenko: good advice, shoulda known better, don't do it again and move on works for me.

After I yank out all the line points.

TIB

The largest number of complaints against Land Surveyors involves business matters and contract disputes. The PLSA is disproportionately weighted against private Land Surveyors in business. There are two elements of the profession, according to the PLSA. One is the technical elements and the other is business related.

As to any reluctance against taking a class, I still take classes and do everything I can to learn more. If you are in private practice, I cannot emphasize enough about the importance of knowing about contracts and business. It is essential.

Most small businesses fail due to lack of business skills and knowledge. There are a lot of good surveyors out there but not as many good business people.

If you are not familiar with contracts, venue, the difference between mediation and arbitration, lien rights, subrogation, subordination, indemnity agreements, insurance, and how to collect on a delinquent account and the benefits of a retainer, you should consider taking some classes.

Move on does not mean yank. I have written emails that I wish I had not, then followed the reply with another one that I wish I had not written. At some point I realized I was digging myself a deeper hole, took my lumps and stopped.

See the attached highlights from the PLSA regarding business owners. The deck is heavily stacked against private business owners.

Personally I would be more concerned about having a contract with those listed under sect 8759-b-4-A-G. Especially G.

Mike: I can't argue with anything you said. I know I suck at business. OOPS I mean lack business skills. Probably because I enjoy surveying. I don't enjoy business. Your points are well taken. I need to convince myself that learning that boring "stuff" will make me a better surveyor. Are there such classes? I would go to some classes if there were any, but enrolling for a college level class for a semester of Business 101 "aint gonna happen".

I said I understood the requirement of a contract. Now I'm not so sure. The networking firm is a cooperation offering surveying from "in house" surveyors. They offered and procured the jobs. That requires an LS in their firm. I just helped them do the work they needed. A party chief. No contract required, so no Violation of LS act per 8759-b-4-b as I read it. Stupid, but not a violation. Lack of contract is sill a problem to judge, but not Board.

They require an LS in their firm. I thought they did but didn't check to confirm. They won't talk to me and Board has no Organization Record on file. If there is no LS does 8759-b-4-b still apply? Am I required/responsible to verify a surveying business is in compliance with law?
Any help, opinions, ideas, thoughts, or suggestions would be way cool.

TIB

TIB:

There are a couple of things that bother me with your last post.

I don't want to pile on, but, if you were just a party chief, were you an employee? Did they set your hours, methods, equipment and issue you a paycheck? Or did you perform a function for them as an independent contractor using your equipment, performing project work due at a certain time and date and receive a check and a 1099?

If the former, you were and employee. If the later, you were a contractor; and you should have had a contract with them.

The fact that there is no organizational record and that they do not have a California LS on staff indicates that they are in violation of California Statutes, and you have aided and abetted their unlawful acts. If the company has an out of state head quarters or is an in state company, a quick call to the Board would have checked their organizational status. That, alone, would have told you loads. Since this is a "red flag" area, I would have checked.

Dealey Renton put out an excellent reference on contracts for design professionals. See if you can find one through your insurance agent. It's a start. Another suggestion would be to attend some of the business track seminars at the CLSA Conference.

FInally, thank you for posting anf for having the guts to come back. There's a lot here that some of the younger members could learn from. And, remember what my grandfather used to tell me: the problem with good judgement is that it often comes from a string of bad decisions. There are a lot of posters in this thread who have developed some really good judgement. ;^)

Best to you. Merry Christmas.

Sue...

Sue, that was a great post!

TIB,

I have been in business for 40 years and the same clients I started out with, are still with me. I am lucky. For a short time I was vice-president to a 45 person firm. I gave that up because it was a headache.

When I started my business many years ago, the first thing I did was to learn how to run a business. Although school may not make sense, you can buy books or go to the library. With all due respect, and please do not take this wrong, you are not a good surveyor if you do not follow the laws that govern surveying. As I said, the business burdens on private surveyors is a hundred times more onerous than those on government surveyors.

Here are some books to consider. If you email me your address I will send one of them to you as a holiday gift.

https://www.constructionbook.com/store/ ... 24?tc=886Y

https://www.abebooks.com/products/isbn/ ... ag=o_b_p_1

What is most important is the fact that you ran into a problem and can learn from it, hopefully, early in your life.

Here are some excerpts from the CLSA contract. It is a brilliant document.

I have attached my contract form if you are interested. You are free to use it. These are some key excerpts.

******************************************************************
14. Locating, Referencing or Resetting Monuments. In the event Consultant is required to locate, reference, or reset any monument in order to comply with section 8771 of the Business and Professions Code, or any other statute, rule, ordinance, or directive, the cost shall be paid by Client as extra services. In addition, Client shall pay all costs incurred in the preparation of documents related to locating, referencing or resetting monuments.


36. Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of California.

37. Arbitration of Disputes. Any dispute arising out of or related to this Agreement shall be resolved by binding arbitration and not in a court of law. The dispute will be settled in accordance with the Rules of the American Arbitration Association, and judgment will be entered on the award. The arbitrator will award attorneys’ fees to the prevailing party. If a party after due notice fails to appear at and participate in the proceedings, the arbitrator will make an award based on the evidence presented by the party who does participate.

38. Venue. In the event either party institutes any proceeding to enforce or interpret the provisions of this Agreement, such proceeding shall be brought and adjudicated in the county in which Consultant's principal place of business is located, and Client waives the right to bring, try or remove such action to any other county or judicial district.

39. Attorneys’ Fees. If any proceeding is brought to enforce or interpret the provisions of this Agreement, the prevailing party therein shall be entitled to receive from the losing party therein, its reasonable attorneys' fees, which fees shall be set in the same proceeding, in addition to any other relief to which it may be entitled.

40. Costs of Dispute Resolution. In the event that Client institutes a proceeding against Consultant, either directly or by way of cross-complaint, including a claim for indemnity, for alleged negligence, error, omission, or other failure to perform, wherein: (a) Client fails to obtain a judgment or award in Client's favor, (b) the action is dismissed, or (c) judgment or award is rendered for Consultant, Client agrees to pay Consultant immediately following the proceedings all costs of defense, including, but without limitation, reasonable attorneys' fees, expert witness fees, court costs, and any and all other expenses of defense.

*********************************************************************
Also, and as a standard practice, ALWAYS get a retainer from a new client. ALWAYS!

One thing to remember, is if you want to charge good rates (see my fee schedule), you MUST present yourself as a knowledgeable business person. You must display a superior knowledge of business. I can assure you your clients will respect you much more if your relationship is founded on a contract. It makes for good clients.

Good luck and thanks for presenting this topic!

Sue, I was independent contractor. I got one check that bounced. How could I aid and abet an unlawful act I have no knowledge of? I did contact board after the fact and still don't know if they have LS or not, but I doubt it. I should have checked, but I didn't. A violation?

Mike: No offense taken. You offered good, solid advice. Thanks for that. Instead of "I'm a good surveyor" mebbe I should say "i'm good at surveying". Would that sound better?
If you are offering (holiday gift book), I'm taking. How can I get you my info?
( BTW, my former employer told me that you knew everything about surveying and spoke highly of you. Maybe a joke or two but... And that was
25 years ago).

So advice taken, lesson learned. Future work will require contract and down payment. But back to the question on hand that nobody has answered yet.
I'm gonna try again on new thread with just question and facts in hoped of some ideas
Thanks

mike: forgot to mention- it was Mr. xinos

Holy smokes. I know Mr. Xinos quite well. Did you know that was important to me (out of curiosity)?

Tell him I said he should pay you right away.