Date: 12-19-2013

Case Style: Jay C. Adkins v. Bret D. Davis, Lamun Mock Cunningham and Davis, P.C.

Case Number: CJ-2012-3588

Judge: Patricia G. Parrish

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Jay C. Adkins, Jr.

Defendant's Attorney: David A. Cheek and Randon J. Grau

Description: Jay C. Adkins sued Bret D. Davis, Lamun Mock Cunningham and Davis, P.C. on a personal tort theory claiming:

1. Plaintiff is a citizen of Oklahoma, who resides in Oklahoma County, Oklahoma.

2. Defendant, Bret Davis (“Davis”) is a citizen of the State of Oklahoma and is an attorney licensed to practice in the State of Oklahoma.

3. Defendant, Travis Lawler (“Lawler”) is a citizen of the State of Oklahoma and is an attorney licensed to practice in the State of Oklahoma.

4. Lamun Mock Cunnigham and Davis, P.C is a law firm whose principal place of business is located in Oklahoma County, Oklahoma.

5. The incidents described in this Petition occurred in Oklahoma County, Oklahoma

6. Defendants initiated a legal action against Plaintiff in CJ2O1O-10221

7. Defendants had no probable cause in law or facts to initiate this action.

8. In initiating this action, Defendants acted with malice and no probable cause toward Plaintiff.

9. This action was terminated in Plaintiff’s favor on June 14, 2011.

10, Plaintiff suffered damages in an amount in excess of the amount needed to remove this case to federal court.

Wherefore, Plaintiff prays for compensatory damages, punitive damages, costs including attorney fees and any other relief the court finds just and equitable.

Defendants appeared and answered, as follows:

1. Defendants are without adequate knowledge to admit or deny the allegations of Paragraph 1. However, upon information and belief, Defendants do believe that Plaintiff is a resident of Oklahoma County, Oklahoma.

2. Defendants admit the allegations of Paragraph 2.

3. Defendants admit the allegations of Paragraph 3.

4. Defendants admit the allegations of Paragraph 4.

5. With relation to the allegations of Paragraph 5, Defendants admit, insofar as there were alleged incidents, upon information and belief, they did occur in Oklahoma County, Oklahoma.

6. With relation to the allegations Defendants do state that they were retained by behalf of a nominal corporate Defendant, and to of Paragraph 6, they are denied. However, a client to represent both individually and on file suit against Plaintiff which was given case number CJ-2010-10221 in Oklahoma County, Oklahoma.

7. The allegations of Paragraph 7 are denied.

8. The allegations of Paragraph 8 are denied.

9. With relation to the allegations in Paragraph 9, Defendants state that on June 14, 2011, the trial court in CJ-20 10-10221 sustained Plaintiff’s motion for partial summary judgment and that the order and all other pleadings in that matter speak for themselves.

10. The allegations contained in Paragraph 10 are denied.

AFFIRMATIVE DEFENSES

1. Plaintiff fails to state a claim upon which relief can be granted.

2. Defendants, at all times, acted in good faith and relied upon information provided by others over whom these Defendants had no control.

3. Plaintiff was contributorily negligent.

4. Plaintiff lacks the capacity of a party to sue.

5. Plaintiff is barred from recovery by the doctrine of “unclean hands.”

6. Plaintiff did not sustain the damages alleged.

7. The actions complained of by Plaintiff in part were actions of third parties over whom these Defendants had no control or right to control and for whom these Defendants are not responsible.

8. Plaintiff has suffered no actual damages.

9. Plaintiff is barred from recovery by the doctrine of estoppel.

10. Plaintiff is barred from recovery by the doctrine of waiver.

11. Defendants relied upon the advice and information of its client without any knowledge of any alleged inaccuracies, if any, of the information provided.

12. Defendant lacks standing to assert the claims in the Petition.

WHEREFORE, premises considered, Defendants pray that Plaintiff take nothing by way of his Petition and that Defendants be granted an award of their costs of this action including a reasonable attorneys fee and such other and further relief as the Court may deem just and equitable.

Defendants moved for summary judgment in their favor, asserting:

Plaintiff Jay Adkins is seeking retribution against the attorneys of his ex-wife, who are the Defendants herein, because they dared to represent her in prosecuting legitimate claims against him and his company.1 His malicious prosecution claim stems from litigation related to ongoing legal disputes and divorce proceedings between Plaintiff and his ex-wife Heather Wolf. Nevertheless, despite the multiple cases, pleadings, and legal maneuvering, it is undisputed that all disputes between Plaintiff and Ms. Wolf were resolved according to a Settlement Agreement and Mutual Release entered by the parties on January 17, 2012, As a mailer of law, the settlement agreement establishes that the relevant litigation was not terminated in Plaintiffs favor, and therefore, in addition to Plaintiff’s inability to prove the other necessary malicious prosecution factors, summary judgment is appropriate in favor of Defendants.

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. Jay Adkins and Heather Wolf were divorced on May 12, 2009. See Docket Sheet for Oklahoma County Case No. FD-2009-1987, attached hereto as Exhibit “2”.

2. Wolf retained attorney John Alberts in November, 2009 to help resolve issues she felt were unresolved by the Decree. See Affidavit of John Alberts attached hereto as Exhibit “3”.

3. When attempts to settle’ all remaining issues failed, Alberts filed a Motion to Clari& on behalf of Wolf to address the ownership of various companies, including Wet Dreams, LLC (“WD”). See Ex. 2, Docket Sheet referencing Motion to Clarify and Reform Divorce Decree and Motion to Order Constructive Trust and Brief in Support of Combined Motion filed on July 12, 2010.

4. Alberts referred Wolf to Lamun Mock for help in dissolving Adkins’ and Ms. Wolf s joint corporation, Splash ‘N’ Go Express Wash, Inc. (“Splash ‘N’ Go” or “SNG”). See Exhibit 3.

5. On December 17, 2010, Ms. Wolf filed suit individually, and on behalf of nominal defendant Splash ‘N’ Go, against Adkins. Subsequently, Adkins filed a counterclaim against Ms. Wolf. See Docket sheet for Case No. CJ-2010-10221, attached hereto as Exhibit “4”.

6. Adkins and Ms. Wolf entered into a Settlement Agreement and Mutual Release (“Settlement Agreement”) on January 17, 2012, wherein the parties agreed to settle their remaining differences in exchange for a Mutual Dismissal with Prejudice of all pending cases involving Adkins and Ms. Wolf. See Settlement Agreement and Mutual Release and Joint Dismissals with Prejudice, attached hereto as Exhibits “5” and “6”.

BACKGROUND

Plaintiffs claim of malicious prosecution stems from litigation regarding Splash ‘N’ Go, which operated a car wash in Bethany, OK. Splash ‘N’ Go paid rent to Wet Dreams, LLC, which was a limited liability company owned by Jay Adkins. Splash ‘N’ Go was owned in equal shares by Jay Adkins and Heather Wolf, his ex-wife, and the ownership of Splash ‘N’ Go was not divided when the parties divorced on June 9, 2009. Subsequent to the divorce, the management of the company was conducted by Adkins to the exclusion of Ms. Wolf The parties experienced a hostile relationship, which prevented Ms. Wolf from having any involvement with Splash ‘N’ Go. Highlighting this circumstance was the fact that Ms. Wolf had to obtain a Protective Order against Adkins on March 4,2010 (P0-2010-410).

Throughout 2010, Ms. Wolf was unable to get any information from Adkins regarding the operations or finances of Splash ‘N’ Go. On December 1, 2010, Wet Dreams, LLC filed a forcible entry and detainer action on allegations that Splash ‘N’ Go had failed to pay rent and owed $168,000.00. In the course of that litigation, Ms. Wolf learned through a review of Splash ‘N’ Go’s bank statements that Adkins had diverted at least $28,609.50 from Splash ‘N’ Go for his own use or benefit.

In light of the evidence that Adkins had diverted company funds to his own use, had excluded Ms. Wolf from the operations of the company, excluded her from accessing the financial books and records, had failed to pay company debts, and considering Ms. Wolf no longer desired to be an owner with Adkins, she filed suit against Adkins styled Heather J Wolf individually and on behalf of nominal Defendant, Splash ‘N’ Go Express Wash, Inc. v. Jay Adkins, individually and Splash ‘N’ Go Express Wash, Inc., in Oklahoma County District Court, CJ-2010-10221 (the Honorable Judge Lisa Davis).

The suit contained three causes of action related to derivative claims concerning breaches of fiduciary duties by Adkins along with two individual causes of action asserted by Ms. Wolf. The individual causes requested a judicial accounting and judicial dissolution. Ms. Wolf later dismissed without prejudice the derivative claims against Defendant Splash ‘N’ Go, but not Defendant Adkins, who filed a counterclaim.

Meanwhile, Alberts was working on clarifying the divorce decree and related issues. After several months of litigation, Plaintiff and Ms. Wolf ultimately agreed to settle the issues left unresolved by the Decree, as well as all other outstanding disputes between them, and entered into a Settlement Agreement and Mutual Release. As part of the Agreement, the parties jointly dismissed with prejudice the lawsuit that Ms. Wolf brought against Plaintiff and his company as well as Plaintiffs counterclaim therein.

Through the guise of this lawsuit, Plaintiff now seeks retribution against Defendants for their representation of Ms. Wolf, just as he similarly sought such retribution in a case against Ms. Wolf s other attorneys.2 His claims fail as a matter of law.

Outcome: Motion for summary judgment granted.

Plaintiff's Experts:

Defendant's Experts:

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