03/26/2008 1 COMPLAINT against Perihelion Global, Inc., John Beebe (Filing fee $ 350 rec# 200245184.), filed by Burr & Forman, LLP.(SMH2, ) (Entered: 03/28/2008)
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OCR extract
JURISDICTION AND VENUE
4. This Court has personal jurisdiction over Defendants because Defendants transacted business in this judicial district, and the causes of action at issue arise directly from that business.
5. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1332, because there is complete diversity of citizenship between Plaintiff and Defendants and the amount in controversy exceeds the sum of $75,000, exclusive of interest and costs.
6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because a substantial part of the events or omissions giving rise to the claims in this action occurred in this judicial district.
FACTUAL ALLEGATIONS
7. In or around January 2006, Burr & Forman was engaged by Defendants and undertook to represent Defendants in connection with, among other things, certain planned mergers and acquisitions.
8. Throughout 2006 and 2007, attorneys for Burr & Forman worked diligently to provide Defendants with sophisticated legal advice on a number of matters, including without limitation the formation of Perihelion, and the subsequent purchase by Perihelion of certain mining lands in Utah from Saturday Night, LLC.
9. Burr & Forman handled all matters for Defendants with the expectation and agreement that Defendants would pay Burr & Forman for its services. Burr & Forman invoiced Defendants in a timely fashion for all services provided and Defendants never requested or raised any issue whatsoever about such statements.
10. Burr & Forman incurred attorneys' fees and expenses totaling $215,613.61 for services rendered on behalf of Defendants. Burr & Forman provided notice to Defendants that such fees and expenses had been incurred and made repeated demands on Defendants for payment of fees and expenses totaling $215,613.61 (hereinafter, the "Indebtedness"). Defendants acknowledged that they owed Burr & Forman the full amount of the Indebtedness and, despite repeated promises that payment was forthcoming, never paid Burr & Forman any of the past due amount of the Indebtedness.
11. On or around February 5, 2008, Defendants represented to Burr & Forman that they would pay Burr & Forman the full amount of the Indebtedness in monthly installments of Twenty-Five Thousand Dollars and no/100 ($25,000) per month, with the first installment being paid on February 15, 2008. In reliance upon the representations of Defendants, Burr & Forman and Defendants entered into an Agreement to Pay Amounts Due as Invoiced ("Agreement"), the terms of which provided that Defendants would pay to Burr & Forman the past due amount of the Indebtedness in nine monthly installments. The first eight installments were to total Twenty-Five Thousand and no/100 Dollars ($25,000) and the final installment was to total Fifteen Thousand Six Hundred Thirteen and 61/100 Dollars ($15,613.61). Defendants agreed in writing that their first monthly installment would be paid on February 15, 2008.
12. On or about February 29, 2008, Burr & Forman learned that the first monthly installment check sent by Defendants to Burr & Forman in the amount of Twenty-Five Thousand Dollars and no/100 ($25,000) was returned due to insufficient funds in Defendants' account.
13. In addition, Defendants have failed and refused to pay to Burr & Forman the second monthly installment check, which was due on March 15, 2008.
14. Defendants' failure to pay to Burr & Forman the first monthly installment by February 15, 2008 constitutes a default under the terms of the Agreement. Further, Defendants failure to pay to Burr & Forman the second monthly installment by March 15, 2008 constitutes an additional default under the terms of the Agreement. Defendants currently owe Burr & Forman the sum of $190,613.61 in fees, plus interest accrued at the rate agreed upon by the parties under the terms of the Agreement, costs and expenses.
15. Under the terms of the Agreement, Burr & Forman is entitled to recover from Defendants all costs of collection, including its attorneys' fees.
COUNT I
BREACH OF CONTRACT
16. Burr & Forman realleges and adopts by reference all averments in the Complaint as if set forth fully herein.
17. Defendants breached their contract with Burr & Forman, in that Burr & Forman fully performed its duties under the contract by representing Defendants at Defendants' direction, yet Defendants have failed and refused to pay for services rendered.
18. As a direct and proximate result of Defendants' failure to pay Burr & Forman for services rendered, Burr & Forman has been damaged in the amount of $190,613.61.
WHEREFORE, Burr & Forman demands judgment against Defendants in an amount equal to $190,613.61 with all prejudgment interest, costs, attorneys' fees and other relief to which it may be entitled.
COUNT II
BREACH OF CONTRACT
19. Burr & Forman realleges and adopts by reference all averments in the Complaint as if set forth fully herein.
20. Defendants breached the terms of the Agreement with Burr & Forman by failing to timely pay the first monthly installment of Twenty-Five Thousand Dollars and no/100 ($25,000).
21. Defendants again breached the terms of the Agreement with Burr & Forman by failing to timely pay the second monthly installment of Twenty-Five Thousand Dollars and no/100 ($25,000).
22. Under the terms of the Agreement, Burr & Forman is entitled to recover the entire amount of the Indebtedness owed by Defendants to Burr & Forman plus interest at an annual rate of ten percent (10%) accruing from the date the invoices for the legal fees and expenses were first submitted to Defendants for payment, plus all costs of collection including attorneys' fees.
WHEREFORE, Burr & Forman demands judgment against Defendants in an amount equal to $190,613.61 with all prejudgment interest, costs, attorneys' fees and other relief to which it may be entitled.
COUNT III
OPEN ACCOUNT
23. Burr & Forman realleges and adopts by reference all previous averments in the Complaint as if set forth fully herein.
24. Burr & Forman supplied services to Defendants and maintains an open account relating to the services provided.
25. Defendants are indebted to Burr & Forman for, among other things, the value of the services.
26. Burr & Forman invoiced Defendants in a timely fashion for the services.
27. Said invoices contain a description of the services, as well as the amounts charged.
28. Defendants have had an opportunity to review the relevant invoices and raise any objections regarding the accuracy of the information contained therein, including among other things, the amount stated as due.
29. Defendants have never objected to the amounts set forth in Burr & Forman's invoices.
30. Despite demand, Defendants have failed and refused to pay Burr & Forman the amounts due as invoiced.
31. As a direct and proximate result of Defendants' failure to pay for the services supplied on an open account, Burr & Forman has been damaged in the amount of $190,613.61.
WHEREFORE, Burr & Forman demands judgment against Defendants in the amount of $190,613.61, plus prejudgment interest on each outstanding invoice, costs, attorneys' fees, and such other and further relief to which it may be entitled.
COUNT IV
WORK AND LABOR DONE
32. Burr & Forman realleges and adopts by reference all averments in the Complaint as if set forth fully herein.
33. Burr & Forman performed work and labor pursuant to an agreement with Defendants, but Burr & Forman has not received payment.
34. Defendants have received the benefit of Burr & Forman's work and labor but have failed and refused to pay Burr & Forman.
35. As a direct and proximate result of Defendants' failure and refusal to pay Burr & Forman for its work performed, Burr & Forman has been damaged in the amount of $190,613.61.
WHEREFORE, Burr & Forman demands judgment against Defendants in the amount of $190,613.61, plus all prejudgment interest, costs, and attorneys' fees, and any other relief to which it may be entitled according to the proof at trial.
Dated this 26th day of March, 2008.
Respectfully submitted,
Victor L. Hayslip, Esq. (HAY019)
Kip A. Nesmith, Esq. (NES007)
Attorneys for Burr & Forman, LLP
BURR & FORMAN LLP
3400 Wachovia Tower
420 North Twentieth Street
Birmingham, Alabama 35203
Telephone: (205) 251-3000
Facsimile: (205) 458-5100
vhayslip@burr.com
knesmith@burr.com |
