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CalAttorney2, Lawyer
Category: Consumer Protection Law
Satisfied Customers: 10221
Experience:  I am a civil litigation attorney representing individuals and businesses.
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My mothers sewage line had a back-flow issue on Tuesday, the

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My mother's sewage line had a back-flow issue on Tuesday, the 23rd. She had to hurriedly hire two contractors - One to come and clean up the mess, and the other to come and take a look at the pipe to figure out what happened. The work was done to clean up the room that was damaged and that contractor was paid the same day. AJ PERRI was hired to do the plumbing work.

The plumber that came out on the 23rd tried snaking but it didn’t work. They sent someone with a camera to come and find where the issue was – The camera guy came on the 24th. Guy with the camera put it down through the flange, but couldn't get very far. They went outside to an outdoor drain opening, put the camera in there and saw bellying and blockage. His camera broke through the blockage but the plumber indicated the cast-iron pipe had failed and needed replacement, at 60 feet of length. The pipe is 6-8 feet below the ground. They were doing to dig the trench and replace the sewer line. The trenching was scheduled to happen on 07/26/16. A contract was signed for the work ($10,883), a waiver of the 3-day notice to cancel was presented and signed, and a deposit was paid ($3,627).

AJ PERRI came on the 26th and was not prepared for the job. They arrived at 08:00 and waited for the other utilities to come and mark the water and gas lines to prevent disruption. The other utilities arrived and were done by approximately 8:30. The crew that came to do the trenching stood outside and appeared to not accomplish any work until 10:30. At 10:30, one of the workers inform my mom that there was a miscommunication on their end, and they cannot start the job because they didn't have the equipment to shore up the trench to prevent dirt from coming down on them, so they would come back on Monday, 07/29 to complete the job.

After these workers left (on 07/26), the supervisor called my mom to let her know there would be an additional fee applied for removal of the fence. Even though the fence removal was written into the contract with the quote, he indicated this would be $600-800 extra. My mother got my aunt involved and she relayed her displeasure with the new circumstances. The supervisor came over the same day (07/26) with another plumber that would snake the drain again to ensure they could use their pluming, though at a limited capacity. At this point, the supervisor determined a trenchless solution could be used to replace underground the pipe, so removal of the fence was no longer necessary. He also indicated that, although the trenchless solution was more expensive, the due balance for the work would not increase because this was "his fault". This was told to my mother, who then informed my aunt by telephone. My aunt called the supervisor directly, that same day, to discuss the changes and agreed it sounded fair. After ending the conversation, she realized she didn't have these changes in writing. On 07/27/13, she called and asked to get an updated contract with all this new information. The supervisor said this was his day off and he could come to get the new contract written on the same day they were performing the work - 07/29/13.

During the weekend, my mother and aunt and another plumber come out to give another quote. This other plumber will do the work for $3,500 and will not charge extra for the fence removal. My mother and aunt are interested in hiring this other contractor, but are concerned AJ PERRI might have them cornered because of the waiver they signed. We think AJ Perri may have broken their own contract by being unprepared for the work on the scheduled day and having to postpone, and then changing the terms of the agreement, with a new written contract pending.
Dear Customer. Thank you for choosing Just Answer. I would like to help you with this legal issue.

The original contract is binding in this situation. While it is possible in some situations for a contractor to increase the amount due under the content for unforeseen issues such as unusually rocky soil, additional blockages requiring replacement beyond the original estimate or similar conditions, an open (and more importantly acknowledged) condition, is not such a condition and the contractor cannot do a "bait and switch".
If they fail to perform the construction as promised within a reasonable period of time your mother can file a beach of contact lawsuit against them for failure to perform.
There may be a delay claim for the failure to start on time, but unless it is combined with a complete failure to perform it may not be worth pursuing.
I hope this is helpful, please let me know if I missed anything or if you have any further questions.
Customer: replied 3 years ago.

So the contract can definitely not be cancelled, because the waiver of cancellation was signed, giving away our three-day "cool-off" period. That is legal? Monday, the 29th will be the 3rd business day,

If there was a waiver of the cooling off. There is no cooling off at all and the contract is final at signing. If they wrote the contract, the terms will be construed against them, this will strengthen your position.
Customer: replied 3 years ago.

I have a copy of the waiver, and I am attaching it. Are you able to tell me if this is flimsy or binding?


Unfortunately I cannot review your specific documents. But I can tell you that if they drafted the document it more likely than not will be enforceable against them, particularly when they took such a great deposit.
Customer: replied 3 years ago.

Okay, and I think this is the last question -


Because the terms of the original contract have been dramatically changed, verbally, we are requesting a new contract to be drawn up on Monday. Essentially, the entire way they are performing the work will be different, with the trenchless method. Because of the verbal changes, and a pending new contract, do we still not have the right to back out?

Given the significant "material changes to the contract" there may be a basis for rescission. But this is a fact specific issue and I cannot give you a guarantee. (This does come into a reasonable claim our chance for rescission unlike many "cold feet" situations).
I wish I could be of more assurance.
Customer: replied 3 years ago.

This is a last resort, and a very unfriendly option, but would it be possible to have them draw up the new contract and then refuse to sign it? At that point, would the previous contract still be valid?

The previous contract is valid until it is revoked or superseded by the parties. If a new proposal is rejected the existing contract is still in effect and binding.
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