Holly Hixon’s yard was a mess. It was overgrown with weeds. Worse, yet, her father and stepmother lived next door. They frequently complained to Holly about her yard. When her father and stepmother announced their intention to sell the house and move to Arizona, Holly knew it was time to act. The next time she saw her father she told him: "I know I’ve never repaid the $1000 loan you gave me years ago when I purchased this house, but now I’m going to make it up to you. I’m going to hire someone to fix up the yard before you try to sell your house." Holly’s father had earlier been told, by a qualified appraiser, that if Holly’s yard were fixed up that he could expect to obtain a $10,000 higher price for his own house. Holly’s father told her that she need not worry about the $1,000 loan, but that he would be happy about anything she could do about her yard. If she had it professionally landscaped, her father said, he would consider the $1000 paid.

Accordingly, Holly contacted Luxurious Landscapes, Inc. and inquired about hiring the firm to improve the appearance of her yard. After carefully examining Holly’s house and lot, Luxurious Landscapes prepared a detailed landscape plan for Holly. After showing it to her, they offered to sell her the completed plans for $500 or to supply and install the plants as indicated in the plan for a total price of $5,000. Lex Luxor, owner of Luxurious Landscapes told Holly that she could probably purchase most of the plants from a garden store, for $3,000, but that some of the plants were not widely available. He also advised her that she could not be sure, if she planted them herself, whether the plants would survive.

Lex gave Holly a 2 page written agreement (front and back) contained detailed terms, describing the work to be done and the plants to be installed (prague viburnum, japanese maple, clematis, japonica, azalea, dogwood, daylilly, boxwood, liatrope, china holly, etc). Accompanying the written contract was a detailed map showing where these plants would be placed in her yard. The agreement also stated the $5,000 price. Further, at the end of the second page, just above the line for the parties’ signatures, it contained the following language:

Holly didn’t bother reading this or other language in the written agreement. She was more concerned about when the work could be completed. Holly explained to Lance that her neighbor’s house was for sale and that she wanted the landscaping completed at the earliest possible date. She advised him that she wanted to improve the overall appearance of the neighborhood in the hopes of enhancing the price for which her brother’s property, next door, could be sold. Lex told Holly that his crew could begin work "immediately" and that once started, the work could be finished within two weeks. He assured her that the finished work would enhance the appearance of her yard and improve not only the value of her house, but also of those around her. With this assurance from Lex, Holly signed the written agreement and gave Lex a $1000 down payment on the work.

Lex, it turned out, had overestimated when his crew could begin. Three weeks later, Holly called to complain. Lex assured her that work would start within a week. A week later, Lex remained unable to do the work himself. Concerned about the contract with Holly, Lex contacted one of his usual competitors, Greenscapes, Inc., and asked if Greenscapes was interested in doing the work at Holly’s house. When Gladys Greenscapes said her firm could start the job in three days, Lex immediately sent her the

Question III continued on next page.

agreement Holly had signed with the notation: "assigned to Greenscapes."

When Holly called again, the day before Gladys was scheduled to begin, Lex told her that work would begin the next day and that she could knock $250 (5%) off the final price, because of the delay. Holly said she didn’t care how much Lex took off the price, she wanted the work completed right away or she would sue. Lex assured her the work would be done right away. He did not tell her that Gladys’ firm would be doing the work.

True to her word, Gladys’ crew began work the next day and finished it in a week. When the work was done, Holly paid her $3750, explaining that Lex had agreed to reduce the price by $250. Gladys objected, claiming she was owed $5,000, but took the $3750 anyway.

Three months later, all of Holly’s new plants died. Worse yet, all of the plants in her father’s elaborately landscaped yard also died, as did those of her other neighbors. It was quickly determined that this occurred because of a disease in the plants installed by Gladys in Holly’s yard. Fortunately, a change in weather prevented the disease from spreading further. Her parent’s house previously appraised as being worth $140,000 has not been sold. The highest offer received thus far has been $110,000. It will cost approximately $7,000 to replace all the plants in their yard. The 5 large trees had to be removed at a cost of $1000 each. It will be 20 years before replacements will grow to the size of the trees that died because of the diseased plants Gladys installed. Several neighbors suffered similar damage.

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