Legal Question in Consumer Law in Iowa

Hello-I recently was the plaintiff in a small claims case against a local landscape company. The company sent out one of their workers to estimate and then bid a job on my property. He verbally told me he could fix a pond that was losing water. He said he could DO the job for $133. We agreed to that price and the work. When he sent two guys out the next day they fixed the problem that HE diagnosed. Then they left. Days later the pond was leaking more water. In fact, the level was down even more than before. So I called him up again and asked "what was up? " He said he would send them back. I confirmed with him that "when they returned there would not be any additional charges" --and-- it would all be included in the "same charge" to FIX the pond for $133. And when they came back the WOULD fix the pond for THAT charge. He said YES it would all be in the same charge. They returned the next day--under that agreement. When they came back--they tore apart my pond to find the problem--but they DID NOT fix it. But they REALLY tore my pond apart. It looked NOTHING LIKE a pond. And it CERTAINLY does not work. It is NOT FIXED. I called him back and said--I am not paying for this. I trust I am not going to be charged. He assured me the cost would be waived. But he did offer to give me an estimate for the cost to fix it with the new problem they found. They found a hole in one area. the new estimate was very high--around $772. I said NO THANKS--I cant afford that. Esp now that it is a wreck. I sought out other bids to fix the new mess. But it was difficult to find anyone else to fix the pond. No one else did this kind of work in my area. Except ONE man. He came out and gave me a bid to fix it for about $4600. This is now a bid based on the mess they left --tearing my pod apart --AFTER they found the initial problem) Months passed. As a new home owner--I was busy with other issues and move-in with the home. Esp since I could not find anyone to fix it. I am also disabled and I live on a limited income. I knew that the landscape company assured me they WOULD NOT bill me for the cost. I was also using them for other services. I paid my bills for THOSE services. And the bill for the pond service NEVER came my way. I thought it was all said and done. But I was still left with a pile of rocks--not a pond. I knew I needed to address the issue. When the late fall arrived. I was getting ready for winter--when the landscape company sent me a bill for the pond. I was SHOCKED. I called and asked them if it was SOME MISTAKE. They said NO--you owe us. I said I think you have it wrong. You owe me. But moreso--you agreed to NOT Bill me. They pushed and told me they would take it to collection or court. So I felt I had no choice but to take them to court as well. So I filed a small claims case for the damages. When I filed they counter sued for the bill. It became difficult to prove my case because the worker that bid --and verbally agreed to fix it for the charge of $133 and then WAIVED the charge--did so with a verbal agreement between myself and him. I only signed a service agreement. When I went to court I showed the judge the damage. I asked the owner of the landscape company and these workers to be present. I also showed the judge emails from the main worker that I spoke with that verbally agreed to the work order. the emails show evidence of our conversations and agreement --but they do not actually show the "verbal agreement." But it is clear from the emails that he and I have a verbal understanding that we HAVE an agreement for the work.

Judge heard the case. Saw the pictures of the damage. Made a decision based on chronological facts that are out of order (in his decision) from how they were presented in the court. AFTER the damage was done. I presented a THIRD estimate for the $4600. The judge made his decision based on that third estimate. He ALSO considered testimony from the workers that negated the verbal agreement---the verbal contract to fix the pond. In other words he did not even consider it. he glossed over it. Judge states that the defendant only sought out money for a service call--not a contract to FIX the pond. If that was the case then why did the man that BID the call send out TWO workers to come out to FIX the pond--and why did he tell me that he could FIX it for the $133--because he saw the tub was buckling under and that was all it needed to be FIXED. It does not make sense to bill for a service call --and NOT a WORK call. Their testimony said all it needed was some silicone. That was NOT what the man that bid the job told me (verbally) he said the pond tub was buckling under --and THAT was all it needed. He notes they did this work and believed it worked. He goes on to state that the defendant filed a counterclaim for the money owed for the service after they tried to fix it with their attempts and experience. But failed via their "service calls." And then offered to fix it with the $772 estimate when they drained the pond fully and found the leak via a hole. (which makes me wonder why they did not do this at first--if they were really professional) Judge then states Code 631.11 (4) Iowa Preponderance of Evidence --and Also adds Iowa Civ J Inst 100.3.

He adds it is his job to determine the credibility of witnesses and the facts from the evidence presented. He considers the evidence using observation, common sense and experience. He adds the court will try to reconcile any conflicts in the evidence; however, the court cannot, it accepts the evidence it finds more believable.

He goes on to say:

In determining the facts, The court may have to decide what testimony to believe. The court may believe all, part or none of any of the witness's testimony. In determining what testimony to believe, the court considers the reasonableness and consistency of the testimony, as well as the witness's appearance, conduct, age, intelligence, memory, knowledge of the facts, interest in the trial, motive,candor, bias, and prejudice.

Then he adds:

The court believes the Plaintiff has not proven he case by preponderance of the evidence. The court does not believe that the parties entered into a contract wherein Defendant agreed to repair the pond for $135.00 sight unseen. The court believes this was the cost for the service call and that the Defendant's employees believed they could stop the leak by applying some silicone. Once the true cause of the leak was found, Defendant offered to perform the repairs for $772. Plaintiff's repair estimate is also deemed not credible considering Defendant would have performed the necessary repairs for one-third of that cost. He then notes that the Plaintiff's case is dismissed. Defendant is awarded $133.75 for the orig service call. And the defendants counterclaim is awarded to them. Judge ordered that I should pay the court $108 in court fees along with the cost of the defendants award. He also noted that the decision was with prejudice. and with the defendants counterclaim--he noted that the appeal bond on THAT decision has an appeal bond of $200.00 (actually both decisions carry an appeal bond of $200) and both are dismissed with prejudice. My questions concern these judgements with regards to the costs and the decisions with bonds and prejudice. Also I have a question about the judge. I see that he is with a local law firm. They show him as "practicing" law with the firm. Actively practicing law. In the area that I have JUST had a case. Possibly representing the same client that I just took to court.(as one of HIS clients) I want to appeal this small claims case. I need to appeal it with the same fees waived (because I am disabled) I had them waived when I was filing--because I am poor. I do not see why I should pay these court fees now that I have lost. Or if I appeal. Also why cant I get a jury.Can I request another judge? It says his "minutes of testimony" are on file. Can I dispute those minutes? Or correct them. What he heard in court and what was actually said --are not accurate.Or he did not understand. I need to clarify. I also have a piece of evidence that lends to the credibility of one of the workers (witnesses) and HIS testimony. Which is one good reason why I was not willing to continue hiring the landscape company. They were NOT credible. The workers were not good and they were not being honest or fair. The work was not reliable and the other aspect of the company were over billing me. I proved this in court. But I did not show this one piece of evidence in court because I felt (at the time that it was not relevant--I thought the judge 'got it.' based on the rest of what I presented) Clearly he did not and I wonder now if he has a bias. It is scary. Because from the pictures I presented it seemed evident. among the emails I also showed him between the worker and myself. I am also concerned about my credit report and having this on my public record. I need to appeal this to get it off my credit report. Not to mention the fact that I still have a backyard that is incredibly damaged from them seeking to find the cause of this leak. Telling me sight unseen they COULD fix it based on the bid of $133.00 and then not being able to fix it. That is a pretty nice little business scam they have going. Come out for a service call--look at something--then make more damage and then leave someone with a real mess--more than they can handle --and the only other guy in town that CAN fix it will charge $4600. Makes it seem like they are giving you a real bargain. And then they put you up against a wall to pay for the "service call." Threatening your credit or to pay them. It feels like a shake down. Maybe I need to contact the ATTY GENERAL OR THE FTC.

1 Answer from Attorneys

Related Questions & Answers

More Consumer Law questions and answers in Iowa

Looking for something else?