Man agrees to pave a lot for a customer for $4900. Gets paid upon completion and tells satisfied cudtomer to not use for several due to weather conditions. Customer uses lot by driving 18- wheelers on it and messes up lot. In the meantime, paver cashes check w/ 3rd party(not a bank). Then customer stops payment because he is now dissatisfied with the job. Now the 3rd party is out the money. Is there a crime?

I will stand by the statement I made in an article I wrote for The Prosecutor in January 2003: "When payment is stopped without any plausible justification, it should be treated as a form of deception." I also said, however: "The real problem with these cases is they most often involve questions of offset, breach of warranties, or the sale of allegedly misrepresented or defective goods. Prosecutors are put in the position of advocating the value of the goods [services] in order to prove the intent of each of the parties." Why anyone cashes a check based on the contract of an endorser these days is beyond me. I would certainly consider how long the victim took in presenting the check to the drawee for payment into account. And are you certain the check would have been honored but for the stop payment order? Has anyone gotten a statement from the maker to see what justification he might offer? If he has admitted the paving job was properly completed and accepted at the time of writing the check, then I think he clearly exercised a remedy the law does not allow. But, it still does not seem to fit very easily in any of the definitions of deception in 31.01(1).

The answer is always: what can you prove was the intent? If you can prove the drawer of the check did not intend to transfer the money by check (i.e., he knew he was going to put a stop payment regardless of the completion of the work), then you have a theft.

The stop payment is merely the camoflauge. It may or may not be legitimate. You still have to prove what was in the mind of the drawer when the service was done.

So, you obtain a statement explaining the stop payment. You look to see if the person has done this before (a history of 30 stop payments might be a clue).

You know that most of the elements are proven. The only element of them in doubt is the intent to deprive, which must be formed at or before the service was provided.

The answer is "no"; there was no intent to avoid payment at the time the service was secured.