A couple from Clive, Iowa hired an independent contractor to replace windows in their home. The contractor, Nadir Topic, was paid a $6,000 down payment of the total estimate of $9,080. He never replaced the windows, nor did he ever purchase them. “The State charged Topic with second-degree theft” and “theft-by-deception”.
The second charge was dropped by the State prior to trial. A jury found Topic guilty of the second-degree theft charge and he appealed. The Iowa Court of Appeals heard the case and rightfully overturned the conviction. The reversal was based upon the fact that “the State failed to establish that the $6,000 check belonged to the” couple. State v. Topic. You can’t be accused of theft if someone gave you something. Evidently, the check is the focus of the crime, and Topic didn’t steal the check.
This action by the State (charging Topic with theft) is the result of a law that is the epitome of too many crimes. This matter should have been dealt with in a court of equity. The couple should have sued Topic for “specific performance” rather than have the State intervene. It’s a matter of contract law. Specific performance is the “remedy of performance of a contract in the specific form in which it was made, or according to the precise terms agreed upon.”
After reading this case, I decided to do just a small amount of research. I checked to see if Mr. Topic had any previous convictions for similar circumstances, or if he had been sued for failure to perform a service. Anyone can easily and freely obtain this information at http://www.iowacourts.gov/For_the_Public/Court_Services/Docket_Records_Search/index.asp
Next, I went to the Iowa Better Business’ website to see if Nadir Topic was an accredited window installer. http://www.bbb.org/iowa/accredited-business-directory I couldn’t find his name anywhere on this site.
There are three lessons here. First, before you hire someone for a significant project around the home or business, check the two websites I just mentioned. Someone may be the lowest bidder on a job, but “Buyer Beware”! The lowest bid is not necessarily the best ‘bang for the buck’.
Second, this case may be appealed to the Iowa Supreme Court. If not, the decision stands. It proves that you should not rely upon the government to bail you out of a bad choice. If the High Court overturns this case, my suggestion still stands.
Finally, because the Iowa Attorney General and Polk County Attorney lost this case we predict that the a legislative bill will be introduced next session to tighten up the current law that defines “second-degree theft under the theft-by-taking alternative set forth in Iowa Code section 714.1(1)”. Fawkes-Lee & Ryan will be there to argue that these cases should not tie up criminal courts; that they should be settled in courts of equity; and that Iowa’s criminal code is fat enough without having the government hold hands with property owners who make awful decisions.