Originally Posted by DVS Hardscaper
When I've had issues and contacted my attorney the first words out o his mouth have been "let me take a look at your contract". When the landscaper said "we don't have a contract", now could the attorney justify moving forward?
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Those are usually the same words I say in similar circumstances. However, if the answer is "I have a verbal agreement" my obligation is still to try to enforce their rights. I will certainly tell them how I think the absence of a written agreement will affect their probability of recovery.
Never underestimate your adversary. As I said earlier, there might be a written, gilt-edged contract -- between the owner and the landscaper. That agreement would allow the 'scaper to sue in the name of, and based upon the damages of the owner. If the 'scaper was really clever, he would have worked this out immediately with the owner as soon as there was evidence of negligence on the part of the pool builder. The 'scaper gets the repair job, the owner gets a reduced price (because his agreement has him paying nowhere near $9,000.00) and the 'scaper gets to sue the pool builder for the market value of his services, which he will testify to as being what his estimate was.
Perhaps this is too complicated for the amount of money here. If you add three or four zeroes to the amounts, my supposition might be more likely.