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I'm being sued and here's the story

Discussion in 'Business Fundamentals' started by QuadPlower, Jan 6, 2007.

  1. QuadPlower

    QuadPlower PlowSite.com Addict
    Messages: 1,056

    I use to have a deal where a customer could buy 10 plowings from me. It was a good deal for them if it did not snow and a good way to put money in my pocket up front. If it snowed more, they bought more times. Here is an example of if it snows less.

    I had a residential customer two seasons ago that wanted their driveway plowed at their $750k home. They bought 10 plowings and then bought another 10 mid season. I did not enjoy doing it for them as they were rude about some things.

    For the 2005-06 season I figure I wanted to drop them so I double the price per push. Instead of dropping me, they agreed to the contract and bought 10 plowings.

    3 plows into the season they think I am plowing too often so they ask if I can do it on a "will call" basis and being charged $10 /inch. I say okay and we sign a change order.

    Mother Nature decides she is going to let it snow, but only 2-3 inches per time. I plow my other customers at a 2" trigger and plowed only 6 more times. I never heard from the customer that was suppose to call.

    I get a call in August of 2006 and they want $210 remaining on their prepayment back. I sent them a letter referring to our contract that clearly states "If an advance payment is made and the total number of snow plowing trips required in a season is less than the number of trips paid for, the Home Owner is not entitled to a refund."

    They are under the assumption that the change order paper we signed was a new contract null and voiding the previous one. And that paper does not say that they don’t get a refund.

    I got a letter today, January 5, 2007 from the small claims court saying I'm being sued for $210 by this customer. The court date is Feb 9, 2007.

    I think I have a strong case and all the documentation. Worse case, I’m out $210 + court costs.

    Any words of wisdom would be great.
    Last edited: Jan 6, 2007
  2. bigfoot1

    bigfoot1 Member
    Messages: 42

    No words of wisdom But **** those people. Stick it to them if you can man I am tired of rich people being jerks good luck Man :gunsfiring:
    Last edited by a moderator: Feb 22, 2007
  3. Proscapez LLC

    Proscapez LLC Senior Member
    Messages: 293

    try and get damages for wasting your time.
  4. jce4isu

    jce4isu Senior Member
    Messages: 289

    thats crazy
  5. lodogg89

    lodogg89 Senior Member
    Messages: 412

    yes, you have to counter sue them. Hold your ground, Show the judge you not some idiot doing this. If you have a signed contract lay it out. Also bring in other contracts from your other customers to show you werent trying to sue one person. Then be sure to charge for your time effort and energy of being there.
  6. ThisIsMe

    ThisIsMe Senior Member
    from Mass
    Messages: 745

    Being in small claims court a number of times here is my advice.

    Dress as nice as possible. Be prepared and have all documentation with you. Be respectful and courteous to the clerk/ judge /magistrate that you sit in front of. Do not speak or argue with the other party but speak to the court. Try to slip in the value of the home somehow in a courteous and respectful way that pertains to the case. i.e. "your honor this is a $750k home and the driveway is substantial and it takes effort and care to do this job properly".

    If you are able to dispute the case by submitting documentation or a statement before the court date do so. If by some miracle chance you had your contracts reviewed by a lawyer, mention this to the court. Do not counter sue. In order to counter sue you have to prove there were damages? Most small claims will not reimburse for your time, but double check for your state.

    Make sure you know the exact time you call and have a copy of the letter you responded with to show the court. If you have a number of other contracts that are written the same way, then bring an example of that to the court and let the court know of your other happy satisfied customers.

    Just my two cents, and not a lawyer.
  7. basher

    basher PlowSite Fanatic
    from 19707
    Messages: 8,993

    Was your second agreement written as a stand alone contract or did it refer to being a addendum to the original contract? If it was stand alone and made significant changes to the intent of the first contract then you would have had to included the no refund clause in the new contract. Unfortunately if they claim that they thought it was a new contract that superseded the original rather then a addendum (or change) to the original contract, and you can not show where (in writing) the second contract clearly stated it was a modification to the original contract, you could be screwed.

    Some state (DE is one) require incorporations to have a lawyer or file certain forms before you can represent yourself. If you are inc. check and see if your state requires this before the court date.

    DE requires you to have clearly stated in the contract, that "the customer will agrees to pay all reasonable costs incurred in the collection of this debt" before you can request the court to award you costs. It would not be a counter suit, it would be an suit all it's own.

    You also are entitled (in DE) to request a continuance twice with-out showing due cause. If you do this close to your "trial" date, (as close as the law allows) it can work in your favor, hell it could be august before you to trial. If either party doesn't show (with-out requesting and having received a continuance) the case is either decided against the defendant (if he no shows) or dropped if the plaintiff does not appear.

    Plus, I would say these people are having cash flow issues. Why else change the contract to lower the cost, then take the time to sue over $210. Stringing them out, while being able to schedule your time could be enough to have their financial house of cards crumble. this won't actually solve your problem but it will provide some satisfaction. plus if they no show when you finally get before the judge you're done with it.

    I would guess they expect you to roll over, since it's such a small amount you could make more money then they're suing for in the time you'll spend in court. Don't and since your self employed try to get the trail scheduled during the day. Request (file for a summons) both parties (husband and wife) be in court as witnesses. Now they both have to take time of work.

    Just my 2 cents worth.
  8. Joe D

    Joe D Senior Member
    Messages: 605

    I don't think I would bring up their home value. It could go two ways, 1 they are rich and just ripping off the working guy, two, you think they are rich and are ripping them off.
    I hope your second contract covers you.
  9. tjlands

    tjlands Senior Member
    Messages: 579

    I agree, they didn't pay a lawyer for this it was done in house, or a friend so make them take off work and they will drop it. If they had to pay for a lawyer it would have cost 150 min. Small claims court always leans toward the consumer so make sure you have all your paper work.
  10. ThisIsMe

    ThisIsMe Senior Member
    from Mass
    Messages: 745

    True and good point, could go both ways. Maybe see how it plays out and slip it in.
  11. QuadPlower

    QuadPlower PlowSite.com Addict
    Messages: 1,056

    Great support from all of you.

    I was going to take a pic of the house, which would include the driveway. If I needed it, then I would show it and let the judge make his own decission.

    The court date and time is already set. Feb 9 and 10am. If it snows I will send the wife in to get an extension.

    I don't think it will help, but I have a contract with the City that the court is in to plow their sidewalks. I don't know the judge nor have I ever been in the building.

    The second "contract" had a letter attached to it that stated.

    " This letter is in regard to the frequency of the snow plowing. We have plowed your driveway 4 times this year. That is not an excessive amount in my opinion, but I get the feeling that you think it is. What I am willing to do is change the times we plow from 2 or more inches bases to a "will call" basis."

    Then it goes on to say what she has to do to contact us and the charge for doing it.

    In my opinion your honor, all I changed was the frequency of the plowing, not any other part of the contract. Is what my stance is going to be and then the origional contract speaks for it self and says they don't get a refund.

    All of my corsipondents with this person is done via letters and mail because they are from India and very hard to under stand. So I have all the letters to and from both of us.

    I was also going to bring in my cell phone records to show that they never called me to plow after this had taken place. Their first clam on the law suit is "Defendant refuses to perform services(snow plowing) or refund advance payment.

    I can't counter sue them for any thing. It was mentioned that small claims goes toward the customer. I can't sue for my time or damages. Even though my Kubota tractor mounted snow blower ate a Wall Street Journal one morning and destroied the chain from the PTO to the drive gear on the blower. My dad was with me and just for the heck of it, I'm sending him an affedavid to sign. He is in Wisconsin and can't make it.

    Probably won't have to use any of this except the contracts, but will have in all with me.

    Great help guys and if you have more let me know.
  12. hydro_37

    hydro_37 PlowSite Veteran
    from iowa
    Messages: 3,790

    Just stand your ground. If they are from India and they aren't in town much there is a very good chance they won't even show. Keep your cool in court and you will be just fine. Tim
  13. YardMedic

    YardMedic PlowSite.com Addict
    Messages: 1,266

    Quad, isn't it amazing the people we encounter? I have to admit I'm quite spoiled in the customer base I've carved out in the last 13-14 years. It's probably something everyone goes through cycles with now & then where we get the less desireables. At least you can KNOW you are right in your situation, and that counts for something even if you can't recoup your costs (hope you do with the court date!). Good luck

  14. cjasonbr

    cjasonbr Senior Member
    from Mass
    Messages: 635

    So you never called them once during 6 plowable events to ask if they wanted the pushes they were pretty much paying (double) for anyways? Seems like after a few storms i might have dropped them a line to see what was up... especially if they had pre-paid (double) for 10 pushes... and they were paying double what they paid last year!!!

    Pretty much they paid you double what the drive was probably worth, for 10 pushes, up front. You plowed them 3 times out of 9 storms, and you don;t think they're entititled to anything back?
    And the "change order" as you refer to it is just what you called it: a CHANGE order. They obviously cared about talking to you and going to the effort to resign a contract. Then for you to do less plowing than you would have done under the original contract (all 9 pushes), and only plow them 3 times, and not give them any money back, must look like a pretty big kick in the balls from you.

    Personally i think you're in the wrong. The right thing to do would be to divide the total payment by 9 and refund them all but 3 payments for the 3 plows. I mean after all A) You said you were charging them double B) You were charging them double to get rid of them!!! You did well getting paid double what the drive was worth for the first 3 plows - be happy to be rid of them.
  15. cjasonbr

    cjasonbr Senior Member
    from Mass
    Messages: 635

    And i fail to see how this is a good deal for anyone but you. If it did not snow like you state then the customers are out for whetever plowings they didn't recieve. In this case 7...... If it snows more than 10, then they have to buy 10 more (or whetever more), correct?
  16. Grn Mtn

    Grn Mtn PlowSite.com Addict
    Messages: 1,644

    only charging for 10 events upfront may be a good deal if others in the area charge for 16 or the whole season.....

    it sounds like they signed the second letter stating the customer was to call for plows, if they didn't call, how does that make it quad plowers civic duty to refund non-refundable money?

    Unfortunately, I had to go to small claims a couple of times for an old job, and the judgment is almost always in favor of the individual not the business, so good luck.
  17. QuadPlower

    QuadPlower PlowSite.com Addict
    Messages: 1,056

    Grn Mtn: The average for our area prior to this year and last is 20 events. Last year for me it was 9 and this year so far it is 3.

    I guess the "will call" basis was un clear in my post. Here is what the form said.

    "I wish to have my driveway plowed on a "will call" basis. I will call B&B YARDSCAPE between 6:00 am and 10:00 am on the days that I think it needs to be done. I understand that my driveway will then be cleared when B&B YARDCAPE can schedule me in. I understand the charge for this service is $10.00 per inch of snow as determined by B&B YARDCASPE. The cost will be deducted from my prepayment which has $210.00 remaining on it."

    She signed it. I signed it.
    The next time they called was on August 7, 2006.

    Thanks for the support.
  18. QuadPlower

    QuadPlower PlowSite.com Addict
    Messages: 1,056

    Cjasonbr: Do you have any seasonal contracts? If so, how many events do you base your price on? Did you hit that number exactly last year and every year? If it was less, did you give them the money back? I really doubt it. If it was more, did you ask for more money? Probably.

    You keep referring to my price as (double) price. They agreed to the price and it was still right at the average for the area. Since I made more money I should feel bad and give some back?

    I didn’t think it was necessary to mention in the post, but when you buy 10 plowings from me, you get 11. I give one free as a way to encouraging customers to do it and to put money in my pocket between the time I stop landscaping and the time it starts snowing. If it snows more it is just like paying by the push for them and getting one for free. Our area, prior to last year and this year, gets 20 pushable events. Again, I’ll ask you if you have any seasonal contracts? Have you ever gave a free plowing to everyone of your customers?

    “Hello Mr. & Mrs. Smith. Can I please come and plow your driveway? PLEASE”
    It took them 8 months to call me to ask for $210 back.

    I just looked at my records. I plowed other customers two times before we even signed a contract. I plowed them four times ending on Dec 19, 05. I then plowed my other customers three more times after that. Jan 22, Feb 7 & 13 of 2006. Then Spring, Then Summer, and in August he calls wanting money back.

    You know what? I see your point. Every plow guy on this site that gets money up front should give back any money that’s above the actual amount they plow. It should be the new standard in they way we bill our customers.
    “Mr. Jones, Here is what I’m charging you per time. Here is the number of times I think it’s going to snow. Here is your TOTAL charge. It’s the per time amount X number of times. At the end of the season if I didn’t plow you enough, I’m going to either carry that amount over to the following year or refund your money. Couple of years like we are having and I’m going to pay you to come and plow.”

    Do you want to see my point now? They agreed on the price. Doesn’t matter if it was triple the local average. They agreed on the time I would plow it. They agreed that there was no refund. They agreed with the contract and they signed it. I agreed to change it to a “will call” basis and I agreed to let them call me when they wanted it done. Eight months later they call me and want $210 back.

    Every single one of my other customers never asked for a refund and every single one re-signed with me this year with seasonal, up front payment contracts.

    The court date is next month. I will let everyone know how it went.
  19. RYDER

    RYDER Senior Member
    Messages: 281

    All of my contracts are seasonal and They do not have an issue with paying a seasonal price upfront or half down and balance by Jan. 15.

    I would ask a few of your other costumers if they would write you a reference letter and please include the why I(you) do contracts with you(your customer)?

    GOO LUCK!!!!!!
  20. blk90s13

    blk90s13 PlowSite.com Addict
    Messages: 1,157

    + being rude :gunsfiring: