A landscaper who was accused of stealing more than $100,000 from a Boulder couple has settled a defamation lawsuit against his former clients for $1.25 million.
Derek Thiess, 29, spent 10 days in jail last year and lost his 8-year-old landscaping business after Randel and Karin Mercer accused him of stealing from them over the course of a monthslong landscaping project at their home.
The Boulder County District Attorney’s Office later dropped the charges after Thiess produced evidence he used all the money he received from the Mercers to pay for materials and subcontractors and that he had provided them with receipts of all his expenses.
The lawsuit, under which Thiess sought damages for defamation and malicious prosecution, was settled after it emerged in court filings that the Mercers had destroyed and recycled computer hard drives that contained evidence related to the case. The Mercers said the computers had technical problems, and they didn’t realize they were supposed to keep them.
Under the settlement agreement, neither side admits any wrongdoing, but Thiess said he feels “vindicated.”
“They set me up; they tried to frame me,” Thiess said. “The criminal charges were dismissed, and while there is no admission of wrongdoing, a seven-figure settlement says something.”
Through their attorney, William Meyer, the Mercers declined to comment on the settlement and said they want to put the incident behind them. Meyer said the couple’s insurance company, which will pay the damages, decided to settle rather than go to trial. He said it was important to the Mercers that the settlement not include any admission of wrongdoing.
District Attorney Stan Garnett said there was not enough evidence to pursue the criminal case, but his office is not considering investigating the Mercers for false reporting.
According to court documents, the Mercers hired Thiess to do an extensive landscaping project on their home in the 2000 block of Vassar Drive in March 2008.
The relationship quickly went south, as soil and foundation issues led to increased costs, and the Mercers, according to Thiess, underpaid on each invoice, even though he provided detailed receipts and labor records.
Thiess said he was behind on his payments to subcontractors and laborers and eventually was reduced to doing all the work himself for a few dollars an hour in an attempt to salvage something from the project. Then the Mercers became upset at the slow pace of the project.
Thiess said he was fired after Randel Mercer asked Thiess’ father, who was visiting his son, to pay to finish the project or his son “would never work in this town again.”
Thiess said his initial reaction was relief, though he expected to be sued over the half-finished job.
Instead, the Mercers took out a restraining order against Thiess and went to prosecutors to complain that Mercer had stolen more than $100,000 of the money they had paid him over the previous nine months. They also sought $248,106 in restitution.
In May 2009, Thiess was arrested by federal marshals in Wyoming, where he had gone for a job, and spent 10 days in jail awaiting extradition to Colorado.
Thiess’ father bailed him out of jail, and he started the arduous task of going through e-mails, invoices and photos of the job site to prove his innocence. After the criminal case was dropped, Thiess moved in with his parents in South Carolina. His business reputation destroyed and his equipment repossessed, he dedicated up to 30 hours a week working on a defamation lawsuit against the Mercers.
“Every time I woke up in the morning, and every time I went to bed at night, I was thinking about this case,” he said.
According to court filings, when Thiess’ attorneys filed a subpoena for the Mercers’ computer records to prove they had received Thiess’ invoices and receipts, they said they had recently destroyed and recycled all their hard drives because of computer problems. They had saved some e-mails on a thumb drive, but they didn’t think the other records were “relevant.”
Thiess said he’s grateful his father had the resources to bail him out of jail, grateful prosecutors dropped the charges instead of pushing for a trial, and grateful for the help of his attorneys at Holland and Hart.
But the experience shook his confidence in the system, he said.
“I can’t believe how easy it is to manipulate the system if you’re willing to make something up,” he said.
As for his next steps, Thiess said he’s thinking about law school.