Date: 02-16-2012

Case Style: C. Marcus McCafferty v. Joe Sunderwirth

Case Number: CJ-2006-4133

Judge: Daman H. Cantrell

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: KJack S. Dawson and Kenneth E. Crump

Defendant's Attorney: Mark Donaldson Lyons and J. Patrick Mensching

Description: C. Marcus McCafferty and Larry Cheatham, Jr. sued Joe Sunderwirth on a breach of contract theory.

Plaintiff alleged that in August 2002, they entered into a contract with Defendant to preserve Defendant's gun collection from sale through Bankruptcy Court.

Defendant alleged to be an obsessive collector. People with the illness cannot stand to part with their collections. His guns were like children to him according the the PTO.

Under the contract, Plaintiffs agreed to: 1. Store the guns; 2. Buy a safe; 3. Insure the guns while stored at Mr. Cheatham's house; and 4. Provide Mr. Sunderwirth with sole access to the machine guns. In performing this contract, Plaintiff's bought a safe capable of holding the machine guns; stored the items; insured the items at their own expense of time and money, and provided Mr. Sunderwith with sole access to the machine guns. Neither Plaintiff had access to the machine guns when they were stored with Mr. Cheatham.

By the contract, Plaintiffs were to receive the ownership rights of Mr. Sunderwirth in the future, after the bankruptcy was colse. To do that, Plaintiff would have to defeat the Trustee's plan to auction the guns. Ownership of the guns was also subject to Defendant's enjoyment for life.

After the bankrupcty was closed and the gun collection abandoned to Defendant, he signed BATF Form 4's. After the forms were sent to the BATF, Mr. Sunderwirth sought to cancel the transfers of the machine guns to Plaintiffs.

Plaintiffs spent hundreds of hours and thousands of dollar, over three years, trying to help Mr. Sunderwirth preserve his gun collection.

Defendant denied that he had a valid contract with Plaintiffs. He also claimed that he did not own the guns and signed the agreement under duress.

Defendant counterclaimed seeking replevin (return) of the gun collection. He also sought to recover damages for guns, parts and ammunition not returned by Plaintiffs. He also asserted claims against Plaintiffs based on negligence and conversion theories.

Outcome: Judgment in favor of Defendant on his replevin and specific performance theories and in favor of Plaintiffs on their fraud, conversion and negligence theories.

Plaintiff's Experts:

Defendant's Experts:

Comments: Reported by Kent Morlan