Building a Case

Did prosecutors use -- or abuse -- a little-known remodeling law?

When 72-year-old Herb Janzen needed his house repaired from Tropical Storm Allison's flooding last year, he turned to a handyman in the truest sense of the word.

Janzen's son, an attorney, had referred his father to Dale Calcerone, a 54-year-old Clear Lake area contractor who learned the trade from what he calls "hard knocks." That meant helping his grandfather build when he was a child, then picking up various skills such as plumbing, mechanics, welding and carpentry. He'd even helped build camps for pipeline workers in South America. Later, the contractor went into the bar and cafe supply business and tried his hand at part ownership of a local bar.

Calcerone says he assisted Janzen in working with adjusters to get a $34,000 insurance settlement after Allison sent about ten inches of water rushing through the old man's Inwood Forest house. The two discussed a range of work and settled last August on a $17,800 contract for removing and replacing damaged parts of the house as well as some remodeling and foundation repair.

The BBB's Parsons praises fraud prosecutors for their post-Allison work.
Phillippe Diederich
The BBB's Parsons praises fraud prosecutors for their post-Allison work.

The contractor runs the father-and-son business Sundial Builders. He needed a down payment, so Janzen, as the contract dictated, paid him $7,000. Calcerone took the check to Janzen's Frost National Bank, cashed it and used the money to cover the initial labor and the purchase of the first batch of materials.

But, unknown to Calcerone, that routine bank transaction did more than start him on the project. Under an obscure state law, it also transformed him instantly -- from contractor to criminal.

The Janzen project was plagued almost from the start by somewhat typical problems between remodeler and client, and the passage of time only escalated the friction.

Sundial Builders notes that the contract called for the homeowner to box and remove all belongings and furniture in the house. Calcerone says that his cost estimate had been whittled down further by Janzen. The contractor knew he'd never make up the difference if he had to do piecemeal repairs and painting by having to work around china closets and other household items.

"I tried working with the guy," Calcerone says. "But I kept telling him to get this stuff out because I've got work to do. He goes, 'Oh, there's lots of stuff you can do.' I told him when I come over here to paint, I want to paint everything -- I don't want to stop and have to come back."

Calcerone says he and his son, Dale Jr., helped the old man get some of the clutter out of the way, although more than three months passed before the bulk of it was gone. Then the homeowner began pressing him immediately on why he hadn't finished, Calcerone says. More delays came when Janzen was late in buying a door to be installed and when special tile had to be ordered and shipped. The Sundial owner also swears that he and his son handled work that wasn't even called for in the contract, but they wanted to help Janzen get his house back in shape.

Janzen's son, Herb Janzen Jr., scoffs at the arguments of Sundial. He says that for months, Calcerone gave him false estimates of the completion date, and would seldom show up. Meanwhile, other contractors in the neighborhood were finishing their work and life was returning to normal in that section of Inwood Forest, he says.

When the junior Janzen confronted Calcerone, he says he was told that since there was no deadline specified in the contract, Calcerone felt he didn't ever have to finish the job. Janzen gave him a March 15 deadline. When that passed, the family changed the locks, got another contractor, booted out Sundial and threatened to sue.

Calcerone insists that the project was only days from completion -- the younger Janzen says they only left a mess of unfinished items and work so bad it had to be torn out and redone. Shelf tops and bottoms were unpainted, a used shower door had been installed and the walls showed multiple hues of paint, he maintains. "I could have done better doing it myself -- at night," the lawyer says. As for customer-induced delays, Janzen says, "All I can tell you is the guy isn't very truthful."

Sundial had received $13,800 from Janzen by the end. "He's just a cheapo," Calcerone says. "He thinks that because his son is an attorney that he's not going to have to pay me -- that he can just sue me." The contractor acted first, filing a lien against the property for about $5,400 -- the remainder of the contract amount and two minor upgrades in the work.

And the homeowner called the Harris County District Attorney's Office to complain. His son, the attorney, told him not to expect anything more than an airing of his gripes, that this was the kind of usual dispute that winds up in civil court. "I do this for a living, handling this on the civil end," Janzen says. But what happened next would "surprise the hell out of me."

On April 29, a D.A.'s consumer fraud intern contacted the blunt-speaking Dale Calcerone about Janzen's complaint. He says he explained his side, then the intern questioned him about the down payment check -- had he cashed it or deposited it in a trust account?

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