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William B. Esq.
William B. Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 2701
Experience:  I am a civil litigation attorney with experience representing individuals and businesses.
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I called a person to plow our drive. I met them as they were doing it and asked them for

Resolved Question:

I called a person to plow our drive. I met them as they were doing it and asked them for a price. He said he would "get back to me' after he finished. He then assumed he would plow when it snowed repeatedly the next few weeks. A month later I got a bill for over $700 per instance, when I had been paying $200 per prior to that. I called and told him it was a ridiculous charge and please renegotiate. I then hired another company at $150/per.

He has not returned calls or letters and is now taking me to small claims court.
Submitted: 7 months ago.
Category: Consumer Protection Law
Expert:  William B. Esq. replied 7 months ago.

William B. Esq. :

Thank you for using our service. My name is XXXXX XXXXX X would like to assist you today.

William B. Esq. :

You have a somewhat unique (and perhaps difficult situation). The price is a "material term" of the contract, but you were never given a price, so there can be no "meeting of the minds" to create a valid and binding contract - therefore the only compensation that this individual would be entitled to would be "quantum meruit" or the reasonable value of his services.

William B. Esq. :

I do need to know though, did you pay any of his bills? and if so, did you pay them in full or in part?

Customer:

I have not paid to date. I offered to pay him $2500, which would be $250 per plowing. He left a message on my phone that he was "insulted".

William B. Esq. :

Without payment, you can probably expect a judgment against you in some amount. I do not believe that the full amount will be awarded, the value asked is oppressive (given your representation of the value against the going rate charged by his competitors), and the failure to give a price when asked.

William B. Esq. :

The biggest drawback to your defense is that you permitted plowing to continue despite the fact that you were not given a price. (This is not fatal to your defense, but it is something to consider).

Customer:

I am very willing to pay him fair value. I had paid less than $200 for the same job prior to that point and paid $150 to another company to finish out the winter after I found out what he was attempting to charge me. I offered him $250 per plowing.

William B. Esq. :

You may want to get price estimates from several of his competitors in advance (with declarations from the owners) to show the drastic inflation by this Plaintiff in order to support your defense of this inflated charge.

Customer:

I have done so.

Customer:

Is there negotiation in small claims court, or might he be able to win his case and claim full payment?

William B. Esq. :

Your arguments would be above: No contract due to no statement of fees (a "material fact" to the contract); Price charged after work done is grossly inflated, and therefore inequitable; and finally that the work done is only subject to quantum meruit damages (or the reasonable price for the work done).

William B. Esq. :

Small claims courts almost always encourage negotiations or even mediation prior to trial.

William B. Esq. :

He will almost certainly win a judgment for some amount against you (He will be entitled to something for his work). But while I cannot promise anything in litigation, I doubt he will be entitled to full compensation given the facts as you have stated them.

Customer:

I called to arrange mediation, which he said he would agree to, last week. I have heard nothing back from them. I called again today (Sunday). The small claims date is tomorrow at 1pm. Do they arrange mediation then?

William B. Esq. :

Your hearing date is tomorrow?

Customer:

Yes.

William B. Esq. :

No, they do not arrange for meditation at that time, that is the date of your trial. However, if you tell the judge that both parties have agreed to mediation and you would like a short continuance (2 weeks or so) most courts will give it to you.

Customer:

Thank you.

William B. Esq. :

For a small claims case, you can get a mediation in the morning of your trial without any problem.

Customer:

How do I arrange that? The company that is included in the paperwork has not replied in two weeks.

William B. Esq. :

Is the company the Plaintiff?

Customer:

No. I'm sorry, I meant the mediation company. Berkshire Mediation Services has not responded to my phone calls.

William B. Esq. :

Get someone else to mediate for you. You can call the Court Clerk, or the self help desk and ask them for referrals to mediators (they may even be on the Court's website), and pick a local attorney or professional mediator, and have them meet with you and the Plaintiff for an hour. (It may cost you a little bit of money, but if you are able to come to a mediated resolution, you can come up with an agreed upon settlement amount, avoid the entry of judgment, and avoid the hassle of trial - you obviously don't have to settle on bad terms, but it does give you an option). You are not limited to using one mediation company.

Customer:

Thank you for your help.

William B. Esq. :

(Both you and the Plaintiff have to agree on a mediator, but bluntly, this is a small claims matter and the stakes are not high enough to go through the process of picking a mediator through elimination, and if you want to find someone who is available same day, before 1:00, you cannot be choosy). At the same time, you can also ask the Court for a continuance, so don't be too rushed, just know the Court may not give it to you (these are the risks, although like I said, most courts will give you one if you might settle).

Customer:

I will call the court tomorrow morning. It seems last minute, I'm sure, but I've been waiting for a response from both the plaintiff and the mediator.

William B. Esq. :

Most litigation seems to happen last minute.

Customer:

Sounds right. Much appreciated.

William B. Esq. :

My pleasure. Thank you for using our service, please do not forget to rate my answer. I do wish you the best of luck with this (hopefully you can get the Plaintiff to cooperate with a settlement discussion - it is reasonable to at least mediate it). If you have any further questions, please let me know. Best regards, Bill.

William B. Esq., Lawyer
Satisfied Customers: 2701
Experience: I am a civil litigation attorney with experience representing individuals and businesses.
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