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I'm a software developer, have long happy years of cooperative and
successful experience building custom software solutions for companies
large and small. I've never had problems getting paid. Sorry to say
that's changed.
I did some minor work on an existing app for a non-profit in the late
90's, maybe 2k work of work. Two years ago they asked me to take over
the same software project, which was floundering after several other
developer's (including one in house) attempts. I first got the old app
patched up a bit, then started on a full rewrite.
I asked them for a list of what the app should do for them and they
never gave me one...they were in a rush to get going, the existing app
was badly broken, the old in-house developer had gone, taking all
intimate knowledge of the project away, and remaining staff hardly knew
how to run the old app, or what it did. The entire operations of the org
depend on this app so it was a big problem having the old app basically
dysfuntional.
I've never been very rigorous about software dev agreements. Prior to
now, it'd mostly been done on a handshake. I'd work, send the invoice,
and get paid. I've never bid on a software project, all were done on an
hourly basis. I approached this in the same way, I sent an estimate for
the re-write work to the non-profit, labeled as a estimate only and
providing a general outline of the features that the project would
provide. They responded that they'd prefer to try for the lower part of
the range that I gave, I responded maybe we can break the project into
two parts, fund the 2nd part in the next year. They said ok, and they'd
like to write up the agreement. I said ok, make sure it's listed as an
estimate only, not a bid. They sent me an agreement that didn't say
estimate, it said $x is provided for, spec'd a two sentence long
deliverable (ie extrememly generic "...should filter"), noted that work
beyond $x must be approved in advance, noted that they reserved the
right not to pay if they didn't like the product. No provision for atty
fees. In my current state of having been wised up, I'd never sign an
agreement like that, but back then I'd had nothing but clean clients, so
I took it as boilerplate and did sign.
So job proceeds. Discovery of many business routines that had not been
explained to me (not on purpose, they are just disorganized and in fact
weren't sure about what the db was going to do for them), so the project
grew in size. When the first approved amount was overrun, they approved
a little more. After that I just revereted to billing them every month.
The project went up to 2.5 times the original allocation, to around 25k.
I wasn't surprised, that happens a lot, esp when the client was so
unsure of what they needed. We had a meeting part way through and we
agreed that as their budget for this year was tight, and they'd pay what
they could this year, and the balance at no interest the next year. I
carried on, built everything they asked for, the app worked great, with
the usual quota of bugs. I donated 30 hours...They didn't pay the next
two big invoices, then paid two small ones, then didn't pay two small
invoices. I emailed them several times about the two big invoices, which
year would they be paid in - they didn't respond. Eventually I got a bit
worried about the non-responses so I called and they said they'd pay in
Jan. Much but not all of this is in emails.
So January arrives, the app is completely done, and I write them 'this
is the month right?' and they write back we have no agreement to pay you
beyond the original agreement. It really shocked me. It didn't suprise
me that they were displeased with the cost, but to have been quiet about
it for so long (those invoices were 5 months old) while asking me to
embellish the app, without giving me a clue, I felt completely
exploited. If they had me in for a meeting and told me that the $ was
not ok with them, I'd have taken it very seriously and would have
changed my approach to several things; it's have been less robust but
workable; they could have handled the massive data converion manually,
or even skipped it, rather than have me spend weeks on it.
(This is getting too long) So, I've taken them to superior court in
California. My end of it is for about $10k. They want all of their money
back even tho they are using the app to run the org (all the while
claiming that it doesn't work at all, thus deserve refund). They also
want atty fees, probably $20k. My atty, who is a family law atty, and
not a pro at this end, isn't a "throw the book" type; the other atty is,
he has me made out to be worse than Al Capone. My atty has little
experience with contract law thinks we have a good case, but is worried
about the contract I signed. I think my case is strong; he explained
quantum meruit to me, the term I mean, and the principle.
If these people had told me plainly that they weren't happy with me or
the bills etc, I'd have tried very hard to make it work somehow, just as
I did for the first week after they told me they weren't going to pay.
It blows me away that for much of the time I was working for them, they
were preparing to shaft me, and that at the end they were completely
unwilling to meet with me or even talk on the phone about how wires got
so crossed.
We're about a month from trial, they deposed me, we've had settlement
conferences and all of that, with no movement. They only intensify their
accusations.
I'm likely to spend 10k on atty fees, so even if I win, it won't earn me
anything. If I lose, that will really hurt. I've learned not to take
contractual issues for granted, and that's worth a lot. I'm seeking
advice on this from anyone out there that has been around contract
law...am I going to lose this? At first I thought that would be
impossible, when I spoke to several atty's that didn't want this tiny
stupid case, they all said "if they engaged you, asked you to keep on,
and didn't tell you to stop, let you keep going, then they owe you the
money" aka quantum meruit. Now, the other atty has succeded in spooking
me by trumping up all of these issues to make me out to be a crook, when
if fact I was always straightforward with them, and they on many
occasions they were not.
What a waste. But I will appreciate any impressions from those who have
seen these types of situations in real life. My atty's limited
experience makes me wonder if the other atty can just run away with the
case. Or, do the basic facts stand clearly in my favor?
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wheel wrote:
(This is getting too long) So, I've taken them to superior court in
California. My end of it is for about $10k. They want all of their money
back even tho they are using the app to run the org (all the while
claiming that it doesn't work at all, thus deserve refund). They also
want atty fees, probably $20k. My atty, who is a family law atty, and
not a pro at this end, isn't a "throw the book" type; the other atty is,
he has me made out to be worse than Al Capone. My atty has little
experience with contract law thinks we have a good case, but is worried
about the contract I signed. I think my case is strong; he explained
quantum meruit to me, the term I mean, and the principle.
If your attorney has little experience with contract law, ask him to
recommend someone who is an expert in the area. You are way outgunned
here. If you persist in going into court with an attorney who doesn't
understand the issues, you may not only not get paid for your extra
work, you might lose what you have already been paid.
The issues as you describe them are complicated. On the one hand, you
have done a lot of work for them and they are using the software you
developed. There's also the fact that you continued to bill for the
work and they never said, "Hey, wait. We only agreed to pay you $X, we
won't pay for this extra work." So you might have a valid claim under
quasi-contract. But on the other hand, you signed a fixed price
agreement -- you would fix their software to do (something) for $X. If
you didn't deliver that, you would in theory be liable for returning the
money they already paid.
*However*, if they want all their money back, you would be entitled to
take back the work you have done and tell them to use the software the
way it was before you started work. If they really need the work you
have done, your attorney may be able to hammer them with this.
One thing you probably don't need to worry about is their attorney
fees. If the contract didn't mention them, then they aren't
collectible. The rule in the US is that each side pays its own
attorney's fees (with a few exceptions like certain kinds of civil
rights cases).
If your former customer is using a "throw the book" attorney, you need
to get one for yourself. You need some bargaining chips to get them to
settle and pay you at least part of what they owe.
Do yourself a big favor and get an attorney who knows what he's doing.
If you do that, you may not even have to go to court -- he may be able,
within a reasonable number of billable hours. to get them to settle.
It's important to discuss fees with your attorney -- whether you are to
be billed by the hour or as a "contingency" arrangement where he takes a
percentage of whatever you recover. And if you pay by the hour, you
probably want to set a maximum beyond which it's not worth spending any
more. Discuss all this with your attorney and *make sure* that it's
specified in your "retainer" agreement.
--
I pledge allegiance to the Constitution of the United States of America,
and to the republic which it established, one nation from many peoples,
promising liberty and justice for all.
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