COMPLAINT Compared To ANSWER
By: carmelbeach
10 Jun 2008, 05:19 PM EDT
Msg. 891 of 891
(This msg. is a reply to 885 by xrayviscion.)
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COMPLAINT Compared To ANSWER
PARTIES
COMPLAINT
1. Burr & Forman is an Alabama limited liability partnership with its principal place of business in Jefferson County, Alabama.
2. Perihelion is a corporation organized under the laws of the State of Delaware.
3. John Beebe is an individual and, upon information and belief, is a citizen of Sanata Rosa Beach, Florida.
ANSWER
1-3. Admit the allegations of paragraphs 1, 2 and 3 of the complaint.
JURISDICTION AND VENUE
COMPLAINT
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.
ANSWER
4. Deny the allegations of paragraph 4 of the complaint and demand strict proof thereof.
COMPLAINT
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.
ANSWER
5-6. Deny the allegations of paragraphs 5-6 of the complaint.
FACTUAL ALLEGATIONS
COMPLAINT
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.
ANSWER
7. Deny the allegations or paragraph 7 of the complaint and aver that Defendant Beebe did not even meet the Plaintiff until June or July of 2006, and that was when attorney David McGee of Pensacola, Florida, introduced them.
COMPLAINT
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.
ANSWER
8. Admit that Burr & Forman purported to work on certain matters on behalf of Defendants, but further aver that said legal work was disastrous for Defendants. Defendants further aver that much of the work concerning a subsequent purchase by Perihelion was performed by attorneys for Saturday Night, LLC, and the law firm to whom Burr & Forman allegedly referred the work out to in Utah, namely Holland & Hart.
COMPLAINT
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.
ANSWER
9. Deny that Burr & Forman handled all matters for Defendants per Burr and Forman subletting work to Holland and Hart with respect to Saturday Night LLC; further deny that Burr & Forman invoiced Defendants in a timely fashion for all services provided; further deny as absolutely false Plaintiff’s averment that Defendants never requested or raised any issue whatsoever about such statements.
COMPLAINT
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.
ANSWER
10. Deny and disagree with the amount of attorney’s fees and expenses which Plaintiff claims to have totaled; acknowledge that Burr & Forman sent some notices to Defendants about fees and expenses incurred and finally, months after work began, Plaintiff requested some payment from Defendants. However, Defendants adamantly deny that they ever owed Burr & Forman the full amount of any indebtedness. Further, Defendants deny that they never paid Burr & Forman any of the past due amount of indebtedness. In fact, in February, 2008, Defendants paid Plaintiff $25,000, and Defendants’ check for said amount has cleared the bank.
COMPLAINT
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 theIndebtedness 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.
ANSWER
11. Deny the allegations of paragraph 11, except admit that Defendants did sign an agreement of some sort under the coercion, profanity, and yelling threats of attorney Victor Hayslip. Indeed, Mr. Haislip issued an implied threat, saying that this matter would not reflect well on the perception of Perihelion Global in the public, unless Defendants signed an repayment agreement with the Plaintiff. Further, Plaintiff knew full well that Defendants were represented by other counsel, namely David McGee of Beggs & Lane of Pensacola, Florida, who referred Defendants to Plaintiff. Yet, Plaintiff bypassed said counsel in threatening the Defendants.
COMPLAINT
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.
ANSWER
12. Adamantly deny the allegations of paragraph 12 of the complaint and further aver that Plaintiff has a copy of the canceled check payment and proof that said check cleared Defendants’ bank.
COMPLAINT
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.
ANSWER
13. Adamantly deny the allegations of paragraph 13 of the complaint and further aver that Defendants sent a check to the Plaintiff for $25,000, due March 15, 2008, but to date, said check has not been presented to Defendants’ bank for payment.
COMPLAINT
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.
ANSWER
14. Defendants deny that they failed to pay Plaintiff monthly installments due on February 15 and March 15, 2008, and therefore further deny that they are in any kind of default under the agreement. Further, Defendants deny that they currently owed Burr & Forman $190,613.61 in fees, plus interest.
COMPLAINT
15. Under the terms of the Agreement, Burr & Forman is entitled to recover from Defendants all costs of collection, including its attorneys' fees.
ANSWER
15. Deny the allegations of paragraph 15.
COUNT I
BREACH OF CONTRACT
COMPLAINT
16. Burr & Forman realleges and adopts by reference all averments in the Complaint as if set forth fully herein.
ANSWER
16. Defendants reallege and adopt their preceding answers to the preceding averments of the complaint.
COMPLAINT
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.
ANSWER
17-18. Deny the allegations of paragraphs 17 and 18 of the complaint.
COUNT II
BREACH OF CONTRACT
COMPLAINT
19. Burr & Forman realleges and adopts by reference all averments in the Complaint as if set forth fully herein.
ANSWER
19. Defendants reallege and adopt their preceding answers to the preceding averments of the complaint.
COMPLAINT
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.
ANSWER
20-22. Deny the allegations of paragraphs 20-22 of the complaint.
COUNT III
OPEN ACCOUNT
COMPLAINT
23. Burr & Forman realleges and adopts by reference all previous averments in the Complaint as if set forth fully herein.
ANSWER
23. Defendants reallege and adopt their preceding answers to the preceding averments of the complaint.
COMPLAINT
24. Burr & Forman supplied services to Defendants and maintains an open account relating to the services provided.
ANSWER
24. Defendants deny the allegations of paragraph 24 of the complaint and aver that said Open Account theory is inconsistent with Plaintiff’s other allegations.
COMPLAINT
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.
ANSWER
25-27. Deny the allegations of paragraphs 25-27 of the complaint.
COMPLAINT
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.
ANSWER
28-29. Deny the allegations of paragraphs 28-29 of the complaint and further aver that Defendants raised several objections to Plaintiff’s billing, and further raised concerns about the quality of Plaintiff’s work, and copied and informed Plaintiff’s primary counsel, David McGee, of this as well.
COMPLAINT
30. Despite demand, Defendants have failed and refused to pay Burr & Forman the amounts due as invoiced.
ANSWER
30. Deny the allegations of paragraph 30 and incorporates Defendants’ previous answer in paragraph 10 of the complaint.
COMPLAINT
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.
ANSWER
31. Deny the allegations of paragraph 31 of the complaint.
COUNT IV
WORK AND LABOR DONE
COMPLAINT
32. Burr & Forman realleges and adopts by reference all averments in the Complaint as if set forth fully herein.
ANSWER
32. Defendants reallege and adopt their preceding answers to the preceding averments of the complaint.
COMPLAINT
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.
ANSWER
33-35. Defendants deny the allegations of paragraphs 33-35 of the complaint.
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U.S. District Court
Northern District of Alabama (Southern)
CIVIL DOCKET FOR CASE #: 2:08-cv-00526-KOB
Burr & Forman, LLP v. Perihelion Global, Inc. et al
Assigned to: Judge Karon O Bowdre
Cause: 28:1332 Diversity-Breach of Contract
Date Filed: 03/26/2008
Jury Demand: None
Nature of Suit: 190 Contract: Other
Jurisdiction: Diversity
Plaintiff
Burr & Forman, LLP
represented by Kip Nesmith
BURR & FORMAN LLP
420 North 20th Street, Suite 3400
Birmingham, AL 35203
205-458-5491
Fax: 205-714-6836
Email: knesmith@burr.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Victor L Hayslip
BURR & FORMAN LLP
3400 Wachovia Tower
420 North 20th Street
Birmingham, AL 35203
205-251-3000
Fax: 205-458-5100
Email: vhayslip@burr.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
V.
Defendant
Perihelion Global, Inc.
represented by Julian McPhillips
MCPHILLIPS SHIMBAUM & GILL LLP
516 South Perry Street
PO Box 64
Montgomery, AL 36101
1-334-262-1911
Email: msgparalegal@hotmail.com
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
John Beebe
represented by Julian McPhillips
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
COMPLAINT
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ANSWER TO COMPLAINT
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