Mulch lesson: Don't pay in advance

"In early August," the email began, "I ordered two loads of mulch (one red, one black) from a landscaping company at Lake Monticello."

As conflicts go, you may be thinking, this one starts on a pretty tame note. But, in fact, it's full of suffering– and because that takes the form of serious illness on both sides, I'm going to break usual policy and withhold names: Let's call the consumer Ms. Harrison and the landscaper Mr. Sullivan.

Back to our story. The black mulch, which cost $190, was delivered the next day. According to Harrison, Sullivan said that the red mulch, which would cost $320, would arrive the next day. She also claims that Sullivan asked her to pay for both loads that day, even though she had only received one.

"I pointed out that I would be paying for something I didn't have," she wrote, "and he gave me his word I would have it the next day.

"I'm not usually that stupid," she explained, "but my partner had just had surgery for pancreatic cancer, and I just needed to get this guy out of the house." Reluctantly, she gave Sullivan a check for $510, and he left.

For the next month, she claims, she attempted to get Sullivan to either produce the mulch or refund her $320. "He has ignored several phone calls, promised more than once to deliver 'tomorrow,' declined to accept a certified letter, and sworn 'the check was in the mail.' He no longer even pretends to respond to me. That may be because I told him I would take cash, cashier's check or money order, as I figure his check is as good as his word."

I spoke with Sullivan on September 18. He claims he told Harrison that it would "take longer" to get the red mulch, because he would have to special order it. He denies that he asked her to pay for both loads at once, and alleges that she later said she didn't want the red mulch after all.

I asked why he hadn't refunded Harrison her $320, and he admitted that he didn't have the money. His 29-year-old wife, he said, has had breast cancer, and they've just adopted a child.

I expressed sympathy for what was obviously a very difficult situation and told him that Harrison is also dealing with a partner who has cancer. The fact remained, however, that he needed to repay the money he owed her. I also pointed out that if Harrison sues him in small claims court (i.e., General District Court) and wins, he'll end up paying not only the $320, but court costs as well.

I asked whether he'd be willing to contact Harrison and at least arrange a payment plan, beginning with as much of the total as he could manage, and he said he'd consider it.

I checked with Harrison on October 14, and she said that Sullivan has never contacted her. Harrison's partner is now undergoing radiation therapy, which makes the prospect of taking Sullivan through small claims court even more daunting.

I talked with Jeffrey Haislip, Fluvanna County Commonwealth's Attorney, and asked him what Harrison's options are. Haislip said he'd "certainly be happy to look at it" pressing a charge of fraud against Sullivan. The drawback, however, is that Harrison's is "a very strong civil case, but not so strong a criminal case."

The problem with pursuing a criminal charge, he explained, would be proving that Sullivan took Harrison's money with the intent to defraud her– and when a jury factored in Sullivan's difficult personal circumstances, they might decline to convict him.

Harrison's best bet, in other words, would be Fluvanna County General District Court. Even if she wins, however, it's no guarantee that she'll ever see the money; the court would simply enter a judgment against Sullivan, which he might or might not pay.

This is a sad situation all around. If Harrison decides to sue Sullivan, I'll report the outcome. I hope to hear that he decides to pay her instead– even if all he can manage at first is a small down payment, it'll prove that he intends to honor the debt.

Do you have a consumer problem or question? Email the Fearless Consumer, write her at 100 Second Street NW, 22902, or call 295-8700 ext. 406.