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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Consumer Protection Law
Satisfied Customers: 12747
Experience:  B.A.; M.B.A.; J.D.
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I paid a contractor an advance payment of $400 to replaster

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I paid a contractor an advance payment of $400 to replaster my 40' by 20' in-ground concrete pool because he insisted that it be done in order to convert the pool to using a saltwater system. This occurred in August of 2012. There was no written contract besides a check that I wrote him with a note on it stating what the payment was for "Pool plastering advance payment". I didn't feel the need for a written contract in this instance because we had already had one on previous work that he did with the pool and I felt comfortable and trusted his work and judgement at the time.

The pool was in working order before he started the job (after some other work that he had done).

I live in New Orleans, Louisiana which is known for generally having a high water table because we have built our homes on essentially re-claimed swamp here in Jefferson Parish.

He drained the pool completely, and had pressure washed it in preparation to begin plastering the next day. Overnight (I happened to have been out of town that night), the pool floated out of the ground we believe due to a combination of the pool being drained and a severe rainstorm. This essentially caused the pool surface to crack in two so that the pool would no longer hold water as ground water would seep in water table and out into the water table when filled. Essentially, the pool was severely damaged beyond any surface repair - from my research and the contractor's agreement, we either had to demolish the pool and put in a new pool, or we had to partly demolish and fill it in. We both verbally agreed that to make up for the situation (and to make up for part of other unfinished work that included concrete decking), he would cover filling in the pool with the resources that he had.

So over time, and very slowly, he began to start the process of demolishing the pool. He would make small efforts, like a explosive-less substance called Dexpan which really didn't work, and finally, in the past few months, personally jackhammering all around the pool. Here it is 9 months later, and the pool is still partially filled, and about 30% of the decking around the pool is demolished and added to the pool. He's made promises on a few occasions to bring in a mechanized back-hoe (Bobcat) to speed up demolition so that the filling could take place, but this has never happened.

In a recent conversation, he seems to have come to the conclusion, after all of this time, that water seeped under the pool as a result of pre-existing defects in the pool piping which exacerbated the pool float incident. I believe he thinks this exonerates him from his obligation, and from that point on, a few weeks ago, he hadn't responded to my contact attempt.

After all of this time, and after all of the empty promises to have the work complete (I've had to be extra patient because he's a boyfriend of my cousin's, further complicating the situation.), I decided to tell him to just stop coming if he planned to and that he would hear from my attorney (which I have yet to hire).

So - thanks for reading this much so far - am I in my legal right to sue to re-coup the cost of at least filling in the pool because of his liability and/or obligation? There was no signed agreement that waived him from being liable for this type of situation.
Submitted: 1 year ago.
Category: Consumer Protection Law
Expert:  Phillips Esq. replied 1 year ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.



If the contractor agreed to fill in the pool, but he did not live up to his obligation, then you can sue him for breach of contract to recover the deposit that you have already paid and get another contractor to do the job. However, it would not be reasonable to sue him for the damage to the pool since you have concluded that his pressure washing the pool to get it ready for plastering was not the only cause for the damage, that you had agreed that severe rainstorm contributed to the damage. So, you are very limited to what you can sue him for.

Eventhough you did not have any written contract, the fact that he had previously worked for you and you thus have an established relationship is significant. Also, the fact that you wrote a check and noted what the check was for is another factor the Court would consider in deciding that you have an enforceable agreement with the contractor.

You can make a demand for reimbursement of your deposit. Then if the contractor ignores your demand or refuses to return the deposit, you may consider filing a Small Claim against the contractor.

Customer: replied 1 year ago.

"However, it would not be reasonable to sue him for the damage to the pool since you have concluded that his pressure washing the pool to get it ready for plastering was not the only cause for the damage, that you had agreed that severe rainstorm contributed to the damage. So, you are very limited to what you can sue him for."


 


Really the pressure washing is more of a side note. It's the fact that he drained the pool completely and apparently without taking proper precaution in preventing it from floating up and cracking. Had he not drained the pool when he did and also taken the proper precautions (like weighing down or releasing the hydrostatic valve on the pool or partially filling it knowing that a rain storm was coming), the rainstorm would not have had the effect that it did. Does that not constitute some sort of negligence on his part? Why would I be liable for the repairs to the pool? Doesn't he have at least some sort of liability in this situation?

Expert:  Phillips Esq. replied 1 year ago.

Thank you for the additional information:


"However, it would not be reasonable to sue him for the damage to the pool since you have concluded that his pressure washing the pool to get it ready for plastering was not the only cause for the damage, that you had agreed that severe rainstorm contributed to the damage. So, you are very limited to what you can sue him for."

Really the pressure washing is more of a side note. It's the fact that he drained the pool completely and apparently without taking proper precaution in preventing it from floating up and cracking. Had he not drained the pool when he did and also taken the proper precautions (like weighing down or releasing the hydrostatic valve on the pool or partially filling it knowing that a rain storm was coming), the rainstorm would not have had the effect that it did. Does that not constitute some sort of negligence on his part? Why would I be liable for the repairs to the pool? Doesn't he have at least some sort of liability in this situation?

Response: My response was based on your initial post. Since you have added information that was not part of your initial post, I will amend my response accordingly:

Does that not constitute some sort of negligence on his part?

Response 1: Yes, it does.

Why would I be liable for the repairs to the pool?

Response 2: You would NOT be based on the information that you have added. You would sue the contractor for the damage to the pool plus the return of your deposit. So, you would need to get a written estimate from another contractor as to how much the repair would cost.

Doesn't he have at least some sort of liability in this situation?

Response 3: He does.

Phillips Esq., Attorney-at-Law
Satisfied Customers: 12747
Experience: B.A.; M.B.A.; J.D.
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