# I'm being sued and here's the story



## QuadPlower

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.


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## bigfoot1

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


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## Proscapez LLC

try and get damages for wasting your time.


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## jce4isu

WTF 
thats crazy


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## lodogg89

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.


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## ThisIsMe

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.


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## basher

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.


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## Joe D

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.


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## tjlands

basher;348017 said:


> 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.
> .




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.


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## ThisIsMe

Joe D;348038 said:


> 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.


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


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## QuadPlower

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.


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## hydro_37

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


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## YardMedic

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

~Kevin


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## cjasonbr

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.


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## cjasonbr

QuadPlower;347964 said:


> 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 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?


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## Grn Mtn

cjasonbr;349359 said:


> And i fail to see how this is a good deal for anyone but you. ....


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



cjasonbr;349353 said:


> So you never called them once during 6 plowable events to ask if they wanted the pushes ...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 ....


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.


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## QuadPlower

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.


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## QuadPlower

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.


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## RYDER

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!!!!!!


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## blk90s13

Lawns & More;347970 said:


> try and get damages for wasting your time.


+ being rude


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## Evan528

This is why I do not work for that special "group" of people. 100% of my dealings with them have ended in a negative manner (refusing to pay a bill or refusing to pay the full amount after agreeing to a price). Very very typical.....


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## gpfarrell

I think you're right.

But who cares? You couldn't pay me $210 to go to small claims court.

Scrap the principle. Give them a refund for the services you didn't perform. Enjoy a cold beverage of your choice and appreciate the rest of your customers even more.

Oh, and the next time you get 6-8"... maybe stop in front of their place just to clean all the lights on your truck


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## QuadPlower

Evan528: I am a small business owner and I have the right to pick and choose my customers. This "special group" of people no longer recieve any work from me for just the reasons you explained. They want everyting and pay nothing. These customers were the plate and the iceing on the cake. There were several more in between that were the cake. 

gpfarrell: The $210 is not the issue. (If it snows, I make that in about an hour and a half) It is all principle. I enjoy trying to get my point acrossed. Now it will be in an official forum with a Judge to tell me if I'm write or not. If I'm not it will be worth the $210 to figure out how to make my contract bullet proff.

Right now I have nothing to do but type on this web site and drink the beverage of my choice. (This morning its coffee tonight it is not coffee)

I also talked to the court clerk and asked what I can do if it looks like it is going to snow. I can call a day or two ahead and get it re scheduled. Again, I don't have anything to do. They both have well paying jobs. I am also subpoenaing the husband to show up. The wife signed all the paper work, but he has been doing all the complaining. I want him to miss a day of work also. And try to speak in english the judge can understand.

When I win the case and I feel like it, I could sue them in the next court up from Small Claims for damages, emotional, financial, defamation of character, etc. Not going to though. There are easier & funner things to do. Like gpfarrell mentioned, sitting out in front of their driveway when it snows. What are the chances I will see the guy they hired this year? Do you think he would like to know what is going on? Would every snow pusher in the town like to know what is going on?


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## bryanj23

cjasonbr;349353 said:


> 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.


Are you kidding me? They paid a NON-REFUNDABLE up front payment that they agreed to. They were to call when THEY felt they needed to be plowed out. How is it this guys fault they never called to get plowed out?

As stated above, dress nice. At a minimum you should be in a shirt and tie with slacks not jeans. Address the judge as Sir or Your Honor!! Everyone else in the court room is sir or ma'am, Mr. ____ or Mrs. _____.

One more thing to help you out! lol
http://www.paulfredrick.com//fashion/pfdesignQues002.aspx?sc=NBMSH6

Good luck to you!:salute:


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## Superior L & L

Evan528;349543 said:


> This is why I do not work for that special "group" of people. 100% of my dealings with them have ended in a negative manner (refusing to pay a bill or refusing to pay the full amount after agreeing to a price). Very very typical.....


Has happen to me also many times also. If i bid any work to them now i always add 25% just incase they choose me. Cos i know they will knock my price or workmanship!


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## cjasonbr

Obviously the customer did not understand that their desposit would remain unrefundable after the "change order" or they wouldn't be suing you.

"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."

So if it is a seasonal, why do you say "I use to have a deal where a customer could buy 10 plowings from me." Then you say "They bought 10 plowings and then bought another 10 mid season.", and never mention the word "seasonal". So obviously the number 10 means 10 plows then they pay for another 10.. and so on..... ummmmm do you know what a "seasonal contract" is?

"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?"

You said: "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."

You said you made it so high so that they would drop you and you wouldn;t have to plow them anymore. Now you say "They agreed to the price and it was still right at the average for the area." While they did agree to the price - it must have been a pretty high figure for the driveway - after all, why would you issue them the figure in the hopes of them thinking it was too high and dropping you, if the figure was still avg? Were you plowing for 1/2 the avg price the first half of the year? 


""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'd say: "Hello Mr or Mrs Smith. Since you've changed your work order to "will call", it hasn't really been snowing that much and i haven't heard from you. So i figured i'd check and see if you wanted me to continue plowing your driveway every storm. After all you've paid for the plows already....."

I don't think your running seasonal contracts here.... You just sell 10 pushes at a time then people buy 10 more...."mid-season" or whenever. Wierd system, but i fit works for you...)Basically these people had a "will-call" set up with you (which i don't do), They paid for 10 plows and got 3 (or 3 and 2 free... or whatever). You did nothing for the other 7 plows.

Also: Ironically, under the original agreement - that $210 (or whetever amount $210+) would have had you plowing their driveway every storm (9 you say) ---- The storms when they weren't calling you!


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## QuadPlower

This is just for cjasonbr. I assume the rest of you have read and understand the situation.

Like I stated in past posts, I have nothing to do right now but write on this web site and drink the beverage of my choice, so I'm not going to call it a waste of my time to respond to your post. But I'm not sure how much clearer I can be. I'll try one more time.

It was not a deposit. They bought 11 plowings for the price of 10. I plowed them 4 times while we had a contract to do it at a 2 inch trigger. I plowed them 0 times when it was up to them to call me. During the time they were to call me it only snowed 3 more times.

I never said this was a seasonal contract. Every other customer I have is a seasonal contract except the commercial sidewalks I plow. They did not want to spend the difference between the seasonal price based on 20 plows.

It kind of blowes my mind that you can't read a thread and remeber what you just read.

The way it was for this particular customer for the 2004-05 season was they bought 10 got 11. It snowed more. They bought another 10. Then toward the end of the season bought 4 more individual plowings. They are sueing me for the 2005-06 season where they bought 10 and recieved 4. They would have recieved 7 if they would have left the contract alone. And they would have recieved 11 if it had snowed 11 times. It was their idea to change it to a will call basis, not mine.

Again with the price I charged. The first year (2004-05) I charged them what I thought was a fair price. After the season ended I was upset with some of the things they had said. They did not keep the driveway clear of cars. The wife asked me to move a car for her so I could plow the area (which I did). They added their U shaped turn around instead of just doing a straight push to their garage. I had a letter wrote on my computer dropping them as customers which I never sent. I guess in hind sight I should have. 

For the 2005-06 season, instead of dropping them, they called me to have me send them a contract. I figured if I'm going to do it, I can do it for a higher price. I told them the price and they signed the contract.

I'm a little surprised that you haven't done the math yet. If I plowed them 4 times and one of those was free then I plowed 3 times out of 10 then there would be 7 left. Still with me? If they want $210 back that would mean for those 7 plows that would mean. . . . each plowing cost them . . . hold on I almost got it. . . . $30 a push. On a 70 foot driveway with an additional 100 foot U shaped turn around. Would you even fire of your two new 2004 plow trucks for that amount?

Could you answer my question about your seasonal customers (if you have any) and weither or not you give them their money back if you plow less than the amount you based your price on?

Sorry the rest of you had to read this.


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## cjasonbr

Listen: You're first post says "3 plows into the season they think I am plowing too often" then you say, "I plow my other customers at a 2" trigger and plowed only 6 more times" 

3+6=9

Keep in mind the post says "plows" and not "events charged for" etc.......

Then you start talking about "well i gave them free plows" and "the change order isn't a change order", and "i didn't say i had a seasonal" then want to know how I charge for my seasonals (When you don't have any seasonals anyways  ). Your whole argument is everywhere and you keep changing things around...

Trust me the reason i don't agree with you isn't because i'm having trouble comprehending your scenerio - it's because i don't think you treated these people fairly. In the end they got less than what they paid for in the first place. You seem to acknowledge that they got shafted in the end, but you brush it off with, "That's what they wanted". Apparently it's not what they wanted b/c they are suing you!

I got news for you too: I think the people have a good case against you. They have a signed contract with you agreeing to change the pricing to "on-call; $10/in" Since the contracts are referring for the same service for the same time, and the second specifically mentiones the new 'pricing scheme', the most current one takes precidence.

As for your pricing and me not doing the math: I figured that they were suing for services not rendered. 
I.E. What they have paid you - 3 plows (3 and 1 free, or 2 free, or whatever)= what they are suing for. So i figured their initial payment was $210+3 plows worth. 
Anyways it really doesn't make a difference what the rates work out to because you described them as "avg" for your area - so who am i to argue?


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## QuadPlower

Listen: You're first post says "3 plows into the season they think I am plowing too often" then another storm came though which I plowed before we changed to a "will call" basis which makes it 4 plows in total. then you say, "I plow my other customers at a 2" trigger and plowed only 6 more times" This was a mistake on my part. I plowed the others two times at the begining of the season prior to signing with these people and 3 more after the change.

3+6=9 My total plows was 9. 4 of which I plowed these people.

Keep in mind the post says "plows" and not "events charged for" etc.......Correct. 

Then you start talking about "well i gave them free plows" and "the change order isn't a change order", and "i didn't say i had a seasonal" then want to know how I charge for my seasonals I just read how you charge for your seasonals. "i tell them that i will have to give them a seasonal quote of a slightly heavier than avg winter to avoid getting shafted with a huge winter." I believe is what you said to the guy on the other thread. Give any money back when you didn't get shafted with a huge winter? (When you don't have any seasonals anyways )I have seasonals. ALL my other customers are seasonals.. Your whole argument is everywhere and you keep changing things around...

Trust me the reason i don't agree with you isn't because i'm having trouble comprehending your scenerio - it's because i don't think you treated these people fairly. So in your eyes I should have just stuck to the 2" trigger contract, plowed them like everyone else 9 times and then given them $30 back at the end of the season. In the end they got less than what they paid for in the first place. I agree. But they also agreed to the terms and conditions. You seem to acknowledge that they got shafted in the end, When did I ever say "I think they got shafted." You were the one that said "not give them any money back, must look like a pretty big kick in the balls from you." but you brush it off with, "That's what they wanted". They wanted to change when I came to plow. From a 2" trigger to a "will call" basis. Apparently it's not what they wanted b/c they are suing you!

I got news for you too: I think the people have a good case against you. They have a signed contract with you agreeing to change the pricing to "on-call; $10/in" "WILL CALL" not "on-call" Since the contracts are referring for the same service for the same time, and the second specifically mentiones the new 'pricing scheme', the most current one takes precidence. You might be right. My concern when going to court is that the judge might interpit the change in frequency (form/contract/agreement) as the most current contract. My position is that it is just a change to the official contract on frequency and price and does not null and void it. And it says " 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 Owner in not entitle to a refund."

As for your pricing and me not doing the math: I figured that they were suing for services not rendered. They are. My point is that I rendered services when it snowed and we agreed to do it at a 2" trigger. I also would have rendered services on a will call basis, but they never called. Apparantly they did not think there was enough snow to warrant calling me to plow.
I.E. What they have paid you - 3 plows (3 and 1 free, or 2 free, or whatever)= what they are suing for. So i figured their initial payment was $210+3 plows worth.
Anyways it really doesn't make a difference what the rates work out to because you described them as "avg" for your area - so who am i to argue?Smartest thing you've said all thread.


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## basher

QuadPlower;349867 said:


> I got news for you too: I think the people have a good case against you. They have a signed contract with you agreeing to change the pricing to "on-call; $10/in" "WILL CALL" not "on-call" Since the contracts are referring for the same service for the same time, and the second specifically mentiones the new 'pricing scheme', the most current one takes precidence. You might be right. My concern when going to court is that the judge might interpit the change in frequency (form/contract/agreement) as the most current contract. My position is that it is just a change to the official contract on frequency and price and does not null and void it. And it says " 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 Owner in not entitle to a refund."


The change contract is the current contract, the question; is it a stand alone contract or a change to the original. If it doesn't clearly state that it is a modification of only the original contract's terms of service, or reference the original contract's articles concerning the non-refundablity of the deposit or re-state the non-refundablity then the deposit could be refundable. Your position has nothing to do with anything the papers don't say.

And a tip for the court room: don't be as argumentative as you have been in your posts.


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## basher

Has the case gone to court? What happened?


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## Jason Pallas

Quad -just read this thread. I'm on your side on this HOWEVER, don't try to sue for any damages - emotional, loss of time. etc. In Michigan, they'll throw that countersuit right out (you can only sue for real financial damages in small claims - this does not include the time/money lost to represent yourself in court).
That countersuit may bias the judge and prejudice the court - thus making you look like a shifty businessman that's out to rip the consumer. Just stick to your argument that the original contract stipulated that there was no refund at the end of the season for unused plows - you'll do fine and I think you'll win.
If you think the case is not going your way, I would stick to your argument AND then offer to credit the customer for future plows OUT OF THE GOODNESS of your heart and in the interest of being a good businessman. The court will most likely look very favorable on this gesture and it will go a long way to show that you're a good guy. Now, both you and I know that the customer has already hired someone else and won't want you back on his property to plow anymore after this BUT..... that's his problem.... and if he complains to the court about this, he's going to look like an A$$hole.

Good luck in court. Keep us posted as to how it goes. Don't be nervous - small claims in Michigan is a very informal affair..... much like Judge Judy or People's Court.


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## QuadPlower

I went to court today at 10:00 and was out of there at 10:20. I could not believe how much the customer lied about making phone calls to me.

I had everything in writting and my case is that the change in frequency was not a new contract. It was before a majistrate and he said he would give us a ruleing in writting within the week.

I will let you know.


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## Big Bad Bob

most cities have a court website. the judge most likely made his decision as soon as you left the court. see if you can find this site and look up your case. most likely it is there. or you could call the clerk of court and ask them to look it up for you. they usually will.

been sued. never lost. have sued. won 95% of the time. this town is litigation crazy.


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## procut

Well??????????? Have you found out the outcome yet?


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## nms0219

They can take me to court any day of the week. I plow both town justices driveways


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## nickPSD

Let us know how it turns out, im really interested.


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## Rcgm

Me personally I would counter sue them for a half of my days wages for wasting my time.I would tell the judge it clearly states this in my contract and I had a job to do today that was paying x amount and I lost a half of days wages so I want x on my counter suit.All they have to to is read the contract they signed your honor.Just hope it isn't judge Judy because she is a well you know what.


RCGM
Brad


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## basher

Rcgm;375207 said:


> Me personally I would counter sue them for a half of my days wages for wasting my time.I would tell the judge it clearly states this in my contract and I had a job to do today that was paying x amount and I lost a half of days wages so I want x on my counter suit.All they have to to is read the contract they signed your honor.Just hope it isn't judge Judy because she is a well you know what.
> 
> RCGM
> Brad


In DE you must have in the contract a article stating that "the customer agrees to pay all reasonable costs incurred in the collection of the debt" for the judge to be allowed to award those kinds of reimbursements. If it is part of the contract you can also get legal fees and litigation costs (filing fees,mailing, copying and office costs, excreta.) it is hard to get lost wages if you're self-employed.


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## Rcgm

Gotcha.To be honest I would probally just give them a refund and go on with my day and never work for them ever again.I am to busy to go sit in a court room for 210.00 



RCGM
Brad


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## Big Bad Bob

Have you heard anything yet?


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## danny17

anything yet? man, this doesn't surprise me one bit...I cut grass for some homes that are right at that price and they are the cheapest **its ever...and collecting is getting to be a bear. i hope you win so bad, i hope you'll respond with good news.


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## ThisIsMe

basher;375221 said:


> it is hard to get lost wages if you're self-employed.


You know, in two separate cases I have prevailed in my lawyer told me the exact same thing. If I had a regular paycheck, I could of had lost wages rewarded, but that the judge never awards to self-employed folk. BS I think.


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## ThisIsMe

I think we all got USED.

Guy comes in here looking for advice, and no response.

Or maybe he lost and hanging his head low.


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## SneekyTT

QuadPlower;367924 said:


> I went to court today at 10:00 and was out of there at 10:20. I could not believe how much the customer lied about making phone calls to me.
> .


But you brought the phone records with you right?

This is a very suspensful thread... im dying to know the outcome.


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## carl b

ThisIsMe;376012 said:


> I think we all got USED.
> 
> Guy comes in here looking for advice, and no response.
> 
> Or maybe he lost and hanging his head low.


so he's not coming back? i wont to know who won..


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## Mark Oomkes

Hasn't been back to the site since 2-9-07. And it hasn't snowed in the last week, so he's not out plowing.


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## scottL

He won't be back...... What judge in small claims court does not immediately make a judgement and in fact says he will mail the verdict.... Unless he mis-spoke and meant that he will refer the case but, I do not suspect that to be the case for some 200 bucks.


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## cjasonbr

I bet he lost his case. A tough lesson in the world of business. I'm actually surprised that i am in the vast minority in thinking Quadplower is wrong. I wish i could get my customers to pay me to do nothing.........


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## ThisIsMe

scottL;376149 said:


> He won't be back...... What judge in small claims court does not immediately make a judgement and in fact says he will mail the verdict.... Unless he mis-spoke and meant that he will refer the case but, I do not suspect that to be the case for some 200 bucks.


Actually that is the way it works here in Mass. Just went through it this year twice. They will mail you the decision. Although you should pretty much know what the decision is by the seat of your pants before you leave.


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## nms0219

They mail it here too. I guess they dont want you fighting in the parking lot.


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## ThisIsMe

nms0219;376282 said:


> They mail it here too. I guess they dont want you fighting in the parking lot.


Good point!!! 
Actually I think it is because you are not in front of an actual judge. The magistrate later gives the judge the long short of it, makes a recommendation, then the judge signs.

I do not think the magistrate can make and actual decision.


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## QuadPlower

I have not left the site, just better things to do. Just because it doesn't snow in GR doesn't mean it doesn't snow in K-zoo, Mark. I plowed on the 12,14,16,& 19.

I still have not heard from the court. Trust me I will tell you if I lose or win. I am going to give them a call on Friday or 2-23 and find out what is going on.


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## cjasonbr

Damn! I've been watching the Grand Rapids weather channel for weeks!!! Why didn't you make us aware of this sooner Quadplower!?


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## ThisIsMe

QuadPlower;376349 said:


> I have not left the site, just better things to do. Just because it doesn't snow in GR doesn't mean it doesn't snow in K-zoo, Mark. I plowed on the 12,14,16,& 19.
> 
> I still have not heard from the court. Trust me I will tell you if I lose or win. I am going to give them a call on Friday or 2-23 and find out what is going on.


Quad. Here in mass the court has 7 days to notify you of judgement. Not sure what it is over there but it must be close. I would surely check on it.

Never trust the US mail for anything important.


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## scottL

ThisIsMe;376198 said:


> Actually that is the way it works here in Mass. Just went through it this year twice. They will mail you the decision. Although you should pretty much know what the decision is by the seat of your pants before you leave.


Fair enough. It sounds strange to me though .........


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## QuadPlower

It took 19 days to come to the verdict, but here it is.

OPINION

A hearing was held on February 9, 2007 wherein the Plaintiff sought to recover monies advanced to the Defendant for plowing the Plaintiff's driveway during the winter months. The Plaintiff had used the Defendant's services for the past two years. For the year 2005/2006 the agreement signed December 4, 2005 called for eleven clearings for the price of $300.00. In that contract there is a clause that states that if advance payment is made and the total number of plowings is less than the number paid for, the owner is not entitled to a refund. In December of 2005 the parties modified the contract and changed the frequency of the plowing from whenever 2" fell to being on a "will call" basis. This modification was signed on December 21, 2005. That modification did not create a new contract, it only modified when the plowing would be done. Therefore, the other provisions of the contract remain in effect. That is, there is no refund for services that were not needed.

As a result this claim is dismissed with prejudice.

February 26, 2007

Signed XXXXX , Magistrate


Most of you, I think, are glad for me in that I won my case. Some of you may think that I got paid for not doing work.

We all take chances when we bid a contract. Wither we do it on a hourly, per time, or per season, there is some guess work involved. If you have a seasonal contract with anyone you base it on a certain number of plowings multiplied by the cost to do the work. If during any year you did not plow enough to met that amount of plowings then did you give them their money back? If during any year you plowed over that amount of plowings did you ask for more money? The answer to both questions is NO. One example you win and in the other the customer wins.

The year before, these customers paid for and got exactly 16 plowings. They pre-paid for 10 and got 11. This put money in my pocket at the start of the season and gave them a free plowing. They then purchased 5 more plowings. This pre-payment also eliminated me sending them a bill each week and them writing a check each week.

The year in question was different only in that Mother Nature only let it snow in my area to allow for 9 plowings. And shortly into the season, the customer wanted to change when we came to plow. If they would have left it alone, they would have only paid for 10 and gotten 9 and that is a 90% right on guess.

What did I learn from this? Keep records. Write letters after every phone call that has to deal with a contract. Never through away contracts. They aren't that big. Get a box and put them in there after it is over. Never change a contract. If changes are needed, write a new contract.

I would like to thank everyone who gave me moral support and advice. I would also like to thank the most the few that thought I would loose. If it weren't for your negative attitude I would not have examined the case as closely as I did and put my ducks in a row as it were and stick to the facts.

I am just glad that it is over.


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## Oshkosh

*Congratulations!*

Congratulations,nice to see the working class win for a change.


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## Mark Oomkes

Congratulations. I understand the 'working for nothing' that some don't like and disagree. You still have a truck\equipment to prepare and maintain and be on call 24\7. You deserved to win IMO.


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## ThisIsMe

Congrats!!!

Although you might want to wait until the appeal period is over. Not sure what it is in MI but here it is 10 days. They sound like a pain and might actually appeal. For your sake I hope not.


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## lawnMaster5000

Congrats

Goes to show what organization and good records can do for you.


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## cjasonbr

I am glad you won!! Congratulations! I don't think you intentionally took advtantage of anyone, i just think you could have done more to nip it in the bud before you got served. Congratulations though!


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## Jbowe

*Seasonal Contracts*

A seasonal contract is just that! When you do them both yourself and the customer are taking a chance. I usually end up right where I figured I would be with my contracts but there have been years where I was ahead and then years where it went the other way. Customers never remember the 101 inch years that they got for the same price as 50 inches. You sometimes have to remind them. Also trying to charge by the inch in my books is futile. Here you might have 12 on one side of town and only 4 on the other side. Seasonal offset this discrepancy and make billing so much easier. I never refund a customer for a seasonal contract. Thats ridiculous. Why sign them if they expect you to credit the money back. There sure not going to pay you more if it snows 40 times when your average is 15. Think about it


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## Snowpower

Mark Oomkes;379282 said:


> Congratulations. I understand the 'working for nothing' that some don't like and disagree. You still have a truck\equipment to prepare and maintain and be on call 24\7. You deserved to win IMO.


The guy at the local restuarant has an oven and spatulas and stuff to prepare. If I dont show up to eat, can he send me a bill?

The Mechanic around the corner that I use has tools and grease and oil and stuff. If I decide to go to another mechanic. Can he bill me for all those tools jjust sitting there going to waste? He shows up every morning at 7AM just hoping I pull in. What if I dont?

If you can get people to pay you up front for something that may or may not happen. Go for it. It's a wonderful scam. I wouldn't even dream of it.

This is NOT the insurance business no matter how much you guys want to justify being paid for doing what needs to be done whether you have that customer or not.


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## Jbowe

*To Snopower*

I do not see seasonal contracts as a scam. During the seasons where I come out ahead its great but there are seasons where I also take it in the rear. I went back after I read your post and I checked last years plowing records and did an average of what it cost my regulars. They averaged 72.50 per push. Given that even the low ballers around here charge from 40 to 60 per push. I don't feel that anyone is being scammed. The one thing that I do which my clients like is at the end of the season I send them a copy of the plow logs and the numbers which lets them know what the average push was just in case they decide they want to renegotiate. So far in the past 4 years I have not had a single customer who complained. I think the reason is that I send a truck out occasionally just to check on thier drives because we get a lot of dustings that are not plowable and those I don't charge for. thats a service I provide. I just keep thier drives clear. Seasonal contracts are a chance for everyone but in the long run they also provide a much better service then the one time push. Hope this helps to clarify a bit for you.


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## Snowpower

I understand how it works and the many variations of the theme. Theres no need to clarify for me. Like I said. If you can get it. Fine. I am just not comfortable doing it that way.


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## bribrius

seems pretty simple in my mind. i think some people are just making it confusing. if its a seasonal contract then call it one and there is not refund. if you state it as a "prepay" for indidual plowings (or individual anything) then plowings not used should be refunded. if i prepay anything based on a certain amount of product or work done then what is not used from the balance is either credited toward a account for future use or refunded.
just my thought on it.


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## Billz

Here in GR, all the calls I get are for seasonal contracts. They all want to pay under $200 for the whole season of plowing. I only have 1 customer who pays me per plow for their driveway. Last year I plowed my residentials 25 times, and he was the only complainer I had all year. Claimed I should have waited until all 12 inches fell before I made a special trip to his house and plow it once for $15, even though our contract called for plowing at 2".

Customers here decided that they dont want to pay $20 per time because some years with the lake effect we might plow 30 times or more...if we had a winter that only snowed a couple times, I would not feel like I owed any of my customers a refund at all...win some lose some.


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## Jbowe

*To Billz*

Thats how I feel. Win some lose some. I have based my rates for the past 4 years on 15 pushes per season. I bill at the beginning of the season so I don;t spend time chaseing money later on. It owrks for me. But I keep them plowed even if it snows 25 times. Thats the deal. Some winters I come out ahead and the others I break even or maybe even lose a bit. But on the average it works for everyone.


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## QuadPlower

SnowPower: Do you pre-pay your mechanic or restaurant using a written contract with terms you both agree on? I’m guessing no. Let say you did. And you took your car somewhere else. Would the mechanic you signed with be upset? Maybe. He might wonder why you don’t like him. Did he still get paid? Yes.

If you and your mechanic agree on a price and you pay him up front for his services and then your car never breaks, how is it okay for you to ask for your money back? 

If you and your resturant owner agree on a price and you pay him up front for his services and then you never come back to eat, (or you never get hungry again) how is it okay for you to ask for your money back?

It is not insurance. It is convenience. Insurance is having a contract with a plow guy to do the work when it snows, no mater if it is by the inch, hour, push, monthly or seasonally. 

Convenience is not being billed and having to write a check every time it snows, weekly, or monthly. Convenience is knowing no matter how many times it snows your drive is covered for a set price.

Is it a scam if I base my season on 20 and I plow 30? If not, then how can it be a scam if I base it on 20 and I plow 10? 

How can it be a scam if both parties read and agreed to the contract terms?


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## bribrius

quad. i think you should just decide if your doing per push or seasonal. one or the other. you may have won in court but there is the potential of upsetting customers the way your doing it now. especially if your charging them for pushes they never use on a prepay. just make it seasonal then. i think your creating a questionable contract and could make people feel they were taken advantage of even if you are the most honest person doing snow removal.
my two cents for what its worth..


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## Snowpower

QuadPlower;435440 said:


> SnowPower: Do you pre-pay your mechanic or restaurant using a written contract with terms you both agree on? I'm guessing no. Let say you did. And you took your car somewhere else. Would the mechanic you signed with be upset? Maybe. He might wonder why you don't like him. Did he still get paid? Yes.
> 
> If you and your mechanic agree on a price and you pay him up front for his services and then your car never breaks, how is it okay for you to ask for your money back?
> 
> If you and your resturant owner agree on a price and you pay him up front for his services and then you never come back to eat, (or you never get hungry again) how is it okay for you to ask for your money back?
> 
> It is not insurance. It is convenience. Insurance is having a contract with a plow guy to do the work when it snows, no mater if it is by the inch, hour, push, monthly or seasonally.
> 
> Convenience is not being billed and having to write a check every time it snows, weekly, or monthly. Convenience is knowing no matter how many times it snows your drive is covered for a set price.
> 
> Is it a scam if I base my season on 20 and I plow 30? If not, then how can it be a scam if I base it on 20 and I plow 10?
> 
> How can it be a scam if both parties read and agreed to the contract terms?


Quad,

I know how it works. You guys sell a seasonal contract, collect your money and sit back and pray to god it never snows. I've seen the bragging and boasting about making dollars for no snow on this very site.

Sure. If all parties agree then you have a contract. That doesn';t take away from the fact that it's a risky venture for both parties involved. Now I also know that charging for services performed is not risky for anyone.

Liker Bribius said. You open yourself up for these kinds of disputes.

Theres many variations of the seasonal deal. I know some sell like 7 plowing packages up front. With this, we can all agree the risk is minimal, and after 7 theres an additional charge. Thats not to bad.

Eh....like I said. Do whatever works for you and your conscience, and justify it anyway youd like.

I dont pay my mechanic up front.

I dont pay my restuarant up front. The only services I or anyone else pays up front like cable or insurance is because thats the only option available and you have no choice.

Fortunately your customers have a choice. It boggles my mind that people choose to pay seasonal for something so random. But really. Nothing surprises me anymore.


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## Snowpower

I do have to say that I believe you are from the GR area if I am not mistaken. If so.....sheesh. Seasonal resis go for $175.00

Where I am at thats unheard of.......so far. I hope our market doesnt end up like yours and I am sorry yours is as bad as it is.

I guess if all I had to pay was 175 for the year and forget about it as long as the snow was done Id buy a seasonal too as contradictory to my thinking as that sounds.

By comparrison. My average resi price per push is 41.00 I assume your average resi prices are considerably lower, so the risk factor is lower to both parties making a seasonal deal more attractive.


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## QuadPlower

The reason I was sued was on a buy 10 get 11 deal. The customer paid for 10 and I plowed less. I would have to go back to page 1 and read to find out. That was the year I only plowed a total of 11 times. Normal is 20. Judge read the contract and dismissed their case.

I don't offer the buy 10 get 11 offer any more. My seasonal contracts go for $350 and up. I'm in Portage, which touches Kalamazoo to the south.

It is a good deal for me because of the up front money to carry me from when I stop doing landscape (which is still going on this year) to when the snow starts. It is a good deal for the customers because they don't have to worry about paying or having their driveway cleared. And $350 is still not a lot of money around here.

My City contract is where I make my big money and that is ONLY on a per push. So I have never bragged about it not snowing because of the seasonal prepays. I make more in a single push for the City then I do for ALL of my seasonals put together.


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## Jbowe

*Paying the Mechanic*

You may not pay your mechanic before he does the work but you more then likely do before he lets you have the truck back. Same with plowing. I cannot count the times I have been out on a call in, did the work then was told to send them a bill. Last time that happened I filled the end of the drive with the snow from the road I was so mad. At least with seasonal you have your money. Then you have to live with yourself. If your fair minded then you will be there like you promise. If your just trying to scam someone out of money you won;t be in business long. Thats my feelings on the matter.


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## cjasonbr

LOL

I love how everyone trys to explain to Snowfarmer what a seasonal contract is..... i may not always agree with the guy, but i don't address him like he's Hellen Keller... geeeesh.

The fact is, if you weren't making more money on average, by billing seasonally, THEN YOU WOULDN'T DO IT!!!! If you are losing money on average with your seasonal contracts (vs. per push billing), then you're a moron and should probably alter the way you handle your billing.

The 'this is what my customers want' arguement only holds up until you are sued. Then it's obviously not what the customer wanted.


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## grassmanvt

Having a blend of seasonal and per push is nice, balances things out. On the people thinking seasonal is morally wrong, I don't get it. Lots of commercial customers want to know what they are going to pay, they need a budget to plan on. Whether it costs them a little more or a little less they could care less about. Its about security and knowing the job will be done at a price you have agreed on. Once you go beyond a one person show you realize the importance of the seasonal deal and budgeting applies equally to the contractor. Whether it snows 1" or 100", many of the costs of doing business are the same. You have to pay the employees, the insurance, still have to get the trucks ready, pay for the trucks etc. Whats really the difference in the cost of doing business from a low snow year to a high snow year? Gas, possibly overtime pay, and possibly a few more repairs. Otherwise, the costs are very similar. So, if I wasn't guaranteed some income either way, what is the incentive to have the trucks and personnel ready? This becomes very clear to anyone who isn't a one man show.


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## Dwan

So Quad did they try to get you to plow again this year? LOL


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## heather lawn spray

grassmanvt;447887 said:


> Having a blend of seasonal and per push is nice, balances things out. On the people thinking seasonal is morally wrong, I don't get it. Lots of commercial customers want to know what they are going to pay, they need a budget to plan on. Whether it costs them a little more or a little less they could care less about. Its about security and knowing the job will be done at a price you have agreed on. Once you go beyond a one person show you realize the importance of the seasonal deal and budgeting applies equally to the contractor. Whether it snows 1" or 100", many of the costs of doing business are the same. You have to pay the employees, the insurance, still have to get the trucks ready, pay for the trucks etc. Whats really the difference in the cost of doing business from a low snow year to a high snow year? Gas, possibly overtime pay, and possibly a few more repairs. Otherwise, the costs are very similar. So, if I wasn't guaranteed some income either way, what is the incentive to have the trucks and personnel ready? This becomes very clear to anyone who isn't a one man show.


_thank-you_

I was beginning to think I was the only one going through this thread that thought this way. We have 39 sites only 2 residential. one seasonal, one per push. The commercials _all_ request seasonal


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## cjasonbr

heather lawn spray;448138 said:


> _thank-you_
> 
> I was beginning to think I was the only one going through this thread that thought this way. We have 39 sites only 2 residential. one seasonal, one per push. The commercials _all_ request seasonal


Most people that spoke on this thread aren't against seasonal contracts. I know that I'm not.

The contract that Quadplower got sued over wasn't even close to being a typical seasonal contract.


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## grassmanvt

cjasonbr;448188 said:


> Most people that spoke on this thread aren't against seasonal contracts. I know that I'm not.
> 
> The contract that Quadplower got sued over wasn't even close to being a typical seasonal contract.


No but whats the difference? I don't see anything unethical about it. Makes sense to me. If the customers signed up then it made sense to them to, right?


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