Date: 09-07-2012
Case Style: UP Cycled Materials, LLC v. Vikoz Enterprises, Inc.
Case Number: CJ-2012-871
Judge: Dana Kuehn
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: Jon E. Brightmire and James R. Bullard
Defendant's Attorney: Richard Mark Petrich for Equipment Hunters, Inc. and Craig Johansen
Brian Rayment for Robert Luten
Description: Plaintiff, Up-Cycled Materials, LLP (“UM”), for its claims for relief against Defendants alleges and states as follows:
PARTIES
1. UM is an Oklahoma limited liability company, with its principal place of business in Broken Arrow, Oklahoma. UM is in the business of, among other things, recyclingpstindustrial and post-consumer plastics, converting it into reusable material, and selling the reground materials to customers in need of recycled plastic resins,
2. Vikoz Enterprises, Inc. (“Vikoz”) is a Utah corporation, with its principal place of business in Sandy, Utah. Vikoz is in the business of, among other things, purchasing, selling, and regrinding plastic materials.
3. Ed Osley, Jr. (“Osley”) is an individual who resides in Salt Lake County, Utah. He is the Vice President of Sales and Marketing for Vikoz.
4. Equipment Hunters, Inc. (“Equipment Hunters”) is a Canadian corporation, with its principal place of business in Calgary, Alberta, Canada. Equipment Hunters is in the business of, among other things, buying and selling tools and items used in the agricultural and construction industries.
5. Craig Johansen (“Johansen”) is an individual who resides in Canada. He is a principal of Equipment Hunters and is a business partner of Osley in the transactions at issue in this lawsuit.
6. Rob Luten (“Luten”) is an individual who resides in Tulsa County, Oklahoma. He is the former sales manager for UM.
JURISDICTION AND VENUE
7. This Court has subject mailer jurisdiction over the claims asserted by UM, and has personal jurisdiction over UM and the Defendants.
8. Venue is appropriate in this Court because the events that gave rise to this lawsuit occurred in Tulsa County, Oklahoma.
FACTS
9. In or around October 2011, UM entered into an agreement with Vikoz and Osley in which UM agreed to purchase over one (1) million pounds of plastic pipe from Osley and Vikoz for thirty-five cents (350) per pound.
10. UM has the equipment necessary to engage in the practice of “regrinding” the pipe, in which the pipe is ground into small plastic particles that are then sold to third parties. These “reground” plastic pipes are key components for many everyday products, such as car components, furniture, toys, and new pipe.
11. After it regrinds the pipes and sells to third parties, UM is able to realize a profit.
12. In order for the pipes to be reground, they must be clear of contaminates, such as dirt, sand, rocks, and a tar/asphalt-like substance known in the industry as “bitumen.” When pipe is delivered with small amounts of dirt and sand, it can be power-washed and is still capable of being reground. UM has the capability at its facility to power-wash moderately dirty pipe. Bitumen, however, is extremely hard to remove and UM does not have the capability of removing it. If the pipe is covered in bitumen it cannot be reground without damaging the machines that grind the pipe and the reground product oflentimes cannot be resold. Therefore, UM cannot use pipe that is contaminated with bitumen.
13. Until January 2012, communications between the parties related to the agreement were primarily between Luten, who was the Sales Manager for UM, and Osley, who is the Vice President of Sales and Marketing for Vikoz.
14. On November 28, 2011, Osley informed UM that he was a 50% partner with Craig Johansen of Equipment Hunters. On December 1, 2011, Osley informed UM that he would be copying Craig Johansen on all future correspondence between the parties. Communications regarding amounts owed by UM under the agreement were sent by Osley and provided that monies owed were due and payable jointly to Vikoz and Equipment Hunters.
15. Much of the pipe purchased by UM was obtained by Vikoz from Equipment Hunters, who has contracts with large oil and gas companies such as Suncor, Shell Oil, and SynCrude. The pipe was transported by truck on behalf of either Vikoz or Equipment Hunters primarily from Canada, and delivered to UM’s facility in Broken Arrow, Oklahoma.
16. During the delivery process, Vikoz and Equipment Hunters used Norman G. Jensen, Inc., a U.S. Customs broker and foreign freight forwarder, to import the pipe from Canada to the United States. Despite agreement between the parties that Vikoz and Equipment Hunters would bear the cost of importing the pipe, the Customs broker has used UM’s bill of lading number and has billed UM for the importation of the pipe. Osley has assured UM on numerous occasions that Vikoz would correct this error. However, to date, UM continues to receive collection notices from the Customs broker. This has negatively impacted UM’s credit.
17. Delivery of the pipe began in November 2011 and continued in numerous loads throughout December 2011 and early January 2012.
18. Prior to and during the delivery process, Vikoz and Equipment Hunters c-mailed photographs to Luten of what was purported to be the exact pipe being delivered to UM. The photographs indicate the pipe is clean and in such condition that it could undergo the regrinding process.
19. Luten oversaw the delivery process of the pipe to UM’s facilities. As early as December 5, 2011, Luten c-mailed Osley informing him that much of the pipe being delivered was covered in heavy dirt and bitumen, Luten expressed concern as to whether UM would be able to regrind and sell the contaminated pipe to third parties, Primex and Spartech, with whom UM and Vikoz both had a financial interest in selling the reground pipe to.
20. Osley responded that UM should try to power wash the dirt and bitumen off and, if they were unable to do so, he and Vikoz could aid UM in selling the contaminated pipe to a purchaser he knew in California, as the contaminated pipe likely would be rejected by Primex and Spartech.
21. On December 8 and December 13, 2011, Luten informed Osley the pipe being delivered was too contaminated to regrind and sell, and that UM therefore required a credit on the contaminated pipe, as the contaminated pipe was not what UM had bargained for when it entered into the Agreement with VikozlEquipment Hunters.
22. On numerous occasions, Osley responded to UM’s concerns that it would make sure to find a buyer for the contaminated pipe already delivered to UM, and assured that future deliveries would not be contaminated. To date, Osley has failed to find a buyer for the contaminated pipe. UM has also made diligent efforts to find a buyer for the contaminated pipe, but has been unable to do so.
23. Despite Osley’s assurances, UM continued to receive deliveries of contaminated pipe. Because the contaminated pipe is not able to be reground or sold, it is useless to UM, and takes up much of UM’s stockyard.
24. It is estimated by both parties that 1,177,174 pounds of pipe has been delivered to UM’s facilities. More than 551,293 pounds of that pipe is contaminated and unusable, making it worthless to UM.
25. As recently as February 3, 2012, Osley agreed that Vikoz would oversee the pickup and removal of the contaminated pipe from UM’s stockyard.
26. To date, the contaminated pipe continues to sit in UM’s stockyard. As a result, UM has been forced to forego other business opportunities, which it otherwise would have been able to pursue. Since the contaminated pipe from Vikoz and Equipment Hunters takes up so much space in UM’s stockyard, there is no space available for UM to accept materials from anyone else.
COUNT I
BREACH OF CONTRACT FOR FAILURE TO DELIVER UNCONTAMINATED PIPE - VIKOZ, OSLEY, EOUIPMENT HUNTERS, JOITANSEN
27. UM re-alleges paragraphs 1 through 26 of the Petition.
28. Pursuant to the terms of the Agreement between the parties, UM was entitled to receive uncontaminated, usable pipe from Vikoz and Equipment Hunters.
29. Vikoz and Equipment Hunters breached the agreement by failing to deliver uncontaminated, usable pipe to UM.
30. As a direct result of the Defendants’ breaches, UM has suffered damages in an amount in excess of $10,000.00.
COUNT II
BREACH OF CONTRACT FOR FAILURE TO REMOVE AND SELL THE CONTAMINATED PIPE- VIKOZ. OSLEY, EQUIPMENT HUNTERS. JOHANSEN
31. UM re-alleges paragraphs 1 through 30 of the Petition.
32. Pursuant to the terms of the Agreement between the parties, Vikoz and Equipment Hunters agreed they would remove the contaminated pipe from UM’s facility and aid UM in finding a buyer for the contaminated pipe.
33. Vikoz and Equipment Hunters breached the Agreement by failing to either pick up the contaminated pipe or find a buyer for the contaminated pipe.
34. As a direct result of the Defendants’ breach, UM has incurred costs for storing the contaminated pipe, and has also suffered damages in excess of $10,000.00, based on the fact that, because the contaminated pipe has been taking up space at its facility, it has missed out on opportunities to purchase and regrind other materials, which could then be sold.
COUNT III
ACTUAL FRAUD - VIKOZ, OSLEY, EQUIPMENT HUNTERS, JOHANSEN
35. UM re-alleges paragraphs 1 through 34 of the Petition.
36. Under the agreement, the parties agreed that the pipe delivered to JIM would be free from contaminates and capable of being reground and sold to third parties.
37. Defendants Vikoz, Osley, Equipment Hunters, and Johansen made representations to UM that delivered pipe would be free of contaminates and capable of being reground and sold to third parties. Such representations included sending photographs of clean pipe which allegedly represented the exact pipe being delivered to UM.
38. When UM informed Osley that some of the delivered pipe was contaminated, Defendants assured UM that Vikoz would find a buyer for the contaminated pipe and would not deliver any more contaminated pipe.
39. Such representations were false and made to UM with the intention that UM would rely on such representations and pay Vikoz and Equipment Hunters for pipe that was unusable, and did not conform to the representations made as to its appearance and quality.
40. UM relied on the truth of these representations in making payment to Vikoz and Equipment Hunters and allowing for the delivery of unusable, contaminated pipe.
41. By sending photographs which allegedly indicated the exact pipe being delivered to UM, but then delivering contaminated pipe, and by making assurances to UM that no more contaminated pipe would be delivered, Vikoz, Osley, Equipment Hunters, and Johansen conveyed a false impression to UM that the pipe it was receiving conformed with the photographs and assurances they provided to UM, which UM relied upon to its detriment. These fraudulent misrepresentations and acts of concealment constitute actual fraud under Oklahoma law.
42. As a result of Defendants’ material misrepresentations and concealment of material facts, UM has suffered damages by assenting to a contract for goods that was procured by fraud.
43. As a result of Defendants’ fraudulent misrepresentations and acts of concealment, UM is entitled to recover damages in a sum exceeding $10,000.00, such amount to be more specifically established at trial in this matter, plus the costs of this action, including reasonable attorneys’ fees, and such other and further relief as this Court deems just and proper.
44. Further, such fraudulent misrepresentations and acts of concealment were made in reckless disregard for the rights of TIM, or were intentionally made without just cause or excuse, entitling tiM to an award of punitive damages against each of Vikoz, Osley, Equipment Hunters, and Joliansen in an amount to be determined at trial.
COUNT IV
ACTUAL FRAUD - LUTEN
45. UM re-alleges paragraphs I through 44 of the Petition.
46. Under the agreement, the parties agreed that pipe delivered to UM would be free of contaminates and capable of being reground and sold to third parties.
47. Based on the course of performance of the parties during this series of transactions, Luten knew or should have known the photographs being sent by Vikoz and Equipment Hunters, and Osley’ s assurances of future deliveries being clean, were inaccurate and unreliable.
48. UM relied on the truth of these representations in making payment to Vikoz and Equipment Hunters and allowing for the delivery of unusable, nonconforming pipe.
49. By unreasonably relying on these false representations, Luten aided and abetted the wrongful and tortious conduct of the other Defendants, and is liable to the same extent as if he performed the fraud himself.
50. As a result of Luten’s tortious acts, TIM has suffered damages by assenting to a contract for goods that was procured by fraud.
51. Luten’s acts of aiding and abetting the fraudulent misrepresentations and acts of concealment by the other Defendants constitute actual fraud under Oklahoma law, and entitles UM to recover damages in a sum exceeding $10,000.00, such amount to be more specifically established at trial in this matter, plus the costs of this action, including reasonable attorneys’ fees, and such other and further relief as this Court deems just and proper.
52. Further, such tortious actions were made in reckless disregard for the rights of UM, or were intentionally made without just cause or excuse, entitling UM to an award of punitive damages against Luten in an amount to be determined at trial.
COUNT V
CONSTRUCTIVE FRAUD - VIKOZ.
OSLEY, EQUIPMENT HUNTERS, JOIIANSEN
53. UM re-alleges paragraphs 1 through 52 of the Petition.
54. Under the agreement, the parties agreed the pipe delivered to UM would be free of contaminates and capable of being reground and sold to third parties.
55. Defendants Vikoz, Osley, Equipment Hunters, and Johansen made representations to UM that the pipes delivered would be free of contaminates and capable of being reground and sold to third parties. Such representations included sending photographs of clean pipe which allegedly represented the exact pipes that were to be delivcred to UM. Defendants also assured UM, when UM informed Osley that some of the delivered pipe was contaminated, that Vikoz would find a buyer for the contaminated pipe and would not deliver any more contaminated pipe.
56. Such representations were false, but were made to UM with the intention that UM would rely on such representations to pay and Vikoz and Equipment Hunters for pipe that was unusable, and did not conform to the representations made as to its appearance and quality.
57. UM relied on the truth of these representations in making payment to Vikoz and Equipment Hunters and allowing for the delivery of unusable, contaminated pipe.
58. By sending photographs which allegedly indicated the exact pipe being delivered to UM, but in fact sending unusable pipe, and by making assurances to UM that no more bad pipe would be delivered, Vikoz and Equipment Hunters conveyed a false impression and gained an unfair advantage over UM. These fraudulent misrepresentations and acts of concealment constitute constructive fraud under Oklahoma law.
59. As a result of Defendants’ material misrepresentations and concealment of material facts, UM was mislead to its prejudice, and has suffered damages by assenting to a contract for goods that was procured by fraud.
60. As a result of Defendants’ fraudulent misrepresentations and acts of concealment, UM is entitled to recover damages in a sum exceeding $10,000.00, such amount to be more specifically established at trial in this matter, plus the costs of this action, including a reasonable attorneys’ fee, and such other and further relief as this Court deems just and proper.
61. Further, such fraudulent misrepresentations and acts of concealment were made in reckless disregard for the rights of TIM, or were intentionally made without just cause or excuse, entitling UM to an award of punitive damages against each of Vikoz, Osley, Equipment Hunters, and Johansen in an amount to be determined at trial.
COUNT VI
CONSTRUCTIVE FRAUD -LUTEN
62. UM re-alleges paragraphs 1 through 61 of the Petition.
63. Under the agreement, the parties agreed the pipe delivered to UM would be free of contaminates and capable of being reground and sold to third parties.
64. Based on the course of performance of the parties during this series of transactions, Luten knew or should have known that the photographs being sent by Vikoz and Equipment Hunters, and the Osley’s assurances of future deliveries being clean, were inaccurate and unreliable.
65. UM relied on the truth of Defendants’ false misrepresentations in making payment to Vikoz and Equipment Hunters and allowing for the delivery of unusable, contaminated pipe.
66. By unreasonably relying on these false misrepresentations, Luten aided and abetted the wrongful and tortious conduct of the other Defendants, and is liable to the same extent as if he had performed the fraud himself
67. As a result of Defendants’ material misrepresentations and concealment of material facts, UM was mislead to its prejudice, and has suffered damages by assenting to a contract for goods that was procured by fraud.
68. Luten’s acts of aiding and abetting the fraudulent misrepresentations and acts of concealment by the other Defendants constitutes constructive fraud under Oklahoma law, and entitles UM to recover damages in a sum exceeding $10,000.00, such amount to be more specifically established at trial in this matter, plus the costs of this action, including a reasonable attorneys’ fee, and such other and further relief as this Court deems just and proper.
69. Further, such fraudulent misrepresentations and acts of concealment were made in reckless disregard for the rights of UM, or were intentionally made without just cause or excuse, entitling UM to an award of punitive damages against Luten in an amount to be determined at trial.
COUNT VII
BREACH OF FIDUCIARY DUTY/DUTY OF LOYALTY/DUTY OF REASONABLE CARE - LUTEN
70. UM re-alleges paragraphs 1 through 69 of the Petition.
71. Luten, as the Sales Manager and agent of UM, owed a fiduciary duty involving fidelity, loyalty, and the duty to act with reasonable care to UM, which entrusted him with overseeing the transactions with Vikoz and Equipment Hunters.
72. Luten breached his fiduciary duty of loyalty and duty to act with reasonable care by continuously allowing contaminated pipe to be delivered to UM after he had seen that previous deliveries contained contaminated pipe and were thus unusable and unacceptable. Luten had seen pictures sent by Osley and Johansen of what the pipe being delivered was supposed to look like, but knowingly allowed contaminated pipe, which did not conform to the pictures, to be delivered on numerous occasions. Eaten also took Osley’s assurances that future deliveries would not be contaminated, yet, when the deliveries continued to be comprised of contaminated pipe, Luten should have known not to rely on Osley’s assurances for future deliveries. Luten engaged in deception and misrepresentations, and failed to act with reasonable care to protect the best interests of UM.
73. As a direct result of Luten’s breach of fiduciary duty/duty of loyalty/duty of reasonable care, UM has suffered damage.
COUNT VIII
CIVIL CONSPIRACY - VIKOZ, OSLEY, EQUIPMENT HUNTERS, JOHANSEN, LUTEN
74. UM re-alleges paragraphs 1 through 73 of the Petition.
75. The Defendants acted in concert in a conspiracy with one another.
76. The co-conspirators engaged in a civil conspiracy by using the unlawful means described in this Petition to injure UM.
77. As a result of the civil conspiracy engaged in by the Defendants, UM has been damaged, for which the Defendants are jointly and severally liable.
RELIEF REQUESTED
UM respectfully requests that this Court:
(a) award it damages in an amount in excess of $10,000.00 for Vikoz’s, Osley’s, Hunters’, and Johansen’s breach of contract as set out in Counts I and II herein;
(b) award it damages in an amount in excess of $10,000.00 for Vikoz’s, Osley’s, Hunters’, Johansen’s and Luten’s acts of fraud as set out in Counts III, IV, V, and
(c) award it damages in an amount in excess of $10,000.00 for Luten’s breach of fiduciary duty/duty of loyalty/duty of reasonable care as set out in Count VII herein;
(d) award it damages in an amount in excess of $10,000.00 for Vikoz’s, Osley’s, Equipment Hunters,’ Johansen’s and Luten’s involvement in a civil conspiracy as set out in Count VIII herein;
(e) award it punitive damages based on the Defendants’ acts of fraud;
(f) award it pre-and post-judgment interest, attorney’s fees, costs, and expenses; and
(g) award it all other relief to which it is entitled at law and in equity
DEMAND FOR JURY TRIAL
Plaintiff requests a jury trial on any and all claims for which trial by jury is permitted by law.
DEFENDANT ROBERT LUTEN’S ANSWER
Defendant Robert Luten’s response to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents would state as follows:
1. Defendant generally and specifically denies each and every allegation set forth within Plaintiffs Petition unless specifically admitted hereinafter.
2. Defendant admits the allegations set forth in paragraphs 1 through 6 of Plaintiffs Petition.
3. Defendant denies the allegations set forth within paragraphs 7 and 8 of Plaintiff’s Petition.
4. Defendant admits that Vikoz and Plaintiff entered into an agreement for Vikoz to sell pipe to the Plaintiff, but denies the remaining allegations ofparagraph 9 of Plaintiff’s Petition.
5. Defendant admits allegations set forth within paragraph 10 of Plaintiff’s Petition.
6. Defendant admits the allegations set forth within paragraph 11 of Plaintiff’s Petition, with the exception of the allegations as to profitability, as Defendant have no knowledge of those facts.
7. Defendant denies the allegations set forth within paragraph 12 of Plaintiffs Petition, except that the allegations as to Plaintiff’s ability to remove bitumen, which is expressly denied,
8. Defendant admits the allegations set forth within paragraph 13 of Plaintiff’s Petition as top communications through December 2011.
9. Defendant admits the allegations set forth within paragraph 14 of Plaintiff’s Petition.
10. Defendant admits the allegations set forth within paragraph 15 of Plaintiff’s Petition.
11. Defendant can neither admit nor deny the allegations set forth within paragraph
16 of Plaintiff’s Petition. Defendant Luten understood that the bill had been paid.
12. Defendant admits the allegations set forth within paragraph 17 of Plaintiff’s Petition as to event through December 2011. Defendant Luten is unaware of any pipe arriving in January 2012.
13. Defendant denies the allegations set forth within paragraph 18 and 19 of Plaintiff’s Petition. Pictures were sent as to some loath, but not all.
14. Defendant denies the allegations set forth within paragraph 20 of Plaintiff’s Petition.
15. Defendant admits the allegations set forth within paragraph 21 of Plaintiff’s Petition as to some of the pipe, but is uncertain as to the dates..
16. Defendant denies the allegations set forth within paragraph 22 through 25 of Plaintiffs Petition.
17. Defendant admits that pipe remains in Plaintiffs stockyard, but deny the remaining allegations within paragraph 26 of Plaintiffs Petition.
18. Paragraph 27 of Plaintiff’s Petition requircs no fi.zrther response.
19. Paragraphs 28 through 30 of Plaintiffs Petition assert claims against Defendants other than Luten aix! require no further response from Defendant Luten.
20. Paragraph 31 of Plaintiffs Petition requires no further response.
21. Paragraphs 32 through 34 of Plaintiff’s Petition assert claims against Defendants other than Luten and require no further response from Defendant Luten.
22. Paragraph 35 of Plaintiff’s Petition requires no further response.
23. Paragraphs 36 through 44 of Plaintiffs Petition assert claims against Defendants other than Luten and require no further response from Defendant Luten.
24. Paragraph 45 of Plaintiff’s Petition requires no further response.
25. Defendant Luten denies the allegations set forth within paragraphs 46 through
52 ofPlaintifts Petition.
26. Paragraph 53 of Plaintiffs Petition requires no further response.
27. Paragraph 54 through 61 of Plaintiffs Petition assert claims against Defendants other than Luten and require no further response from Defendant Luten.
28. Paragraph 62 of Plaintiffs Petition requires no tbrther response.
29. Defendant Luten denies the allegations set forth within Paragraph 63 through
69 of Plaintiff’s Petition.
30. Paragraph 70 of Plaintiff’s Petition requires no further response.
31. Defendant Luten denies the allegations set forth within Paragraph 71 through
73 of Plaintiff’s Petition.
32. Paragraph 74 of Plaintiffs Petition requires no further response.
33. Paragraph 75 through 77 of Plaintiff’s Petition assert claims against Defendants other than Luten and require no fUrther response from Defendant Luten.
AFFIRMATIVE DEFENSES
1. Plaintiff s estopped from asserting the claims in its Petition.
2. The doctrine of latches precludes Plaintiff from asserting the claims set forth within its Petition.
3. Plaintiff has waived the right to pursue the claims set forth in its Petition.
4. Plaintiff is precluded from seeking equitable relief as a result of Plaintiff’s unclean hands.
5. Plaintiff has failed to mitigate any damages that it may have suffered.
costs, including a reasonable attorneys’ fee, and for such other and frrther relief as this Court deems just and equitable.
Wherefore, Defendant Luten prays that this Court enter judgment in favor of Defendant and against the Plaintift UP Cycled Materials, LLC, and award Defendant his costs.
DEFENDANT ED OSLEY AND VIKOZ ENThRPRIZES, INC.,
ANSWER, COUNTERCL4IM AND TifiRD PARTY CLAIM
Defendants, Ed Osley and Vikoz Enterprises, Inc., for their Answer to Plaintiff’s Petition, and for their Counterclaim and Third Party Claim herein, state as follows:
1. Defendants generally and specifically deny each and every allegation t forth within Plaintiffs Petition unless specifically admitted hereinafter.
2. Defendants admit the allegations set forth in paragraphs 1 througi 6 of Plaintiffs Petition.
3. Defendants deny the allegations set forth within paragraphs 7 and S of Plaintiffs
Petition.
4. Defendants admit that Vikoz and Plaintiff entered into an agreement for Vikoz to sell pipe to the Plaintiff, but deny the remaining allegations of paragraph 9 of Plaintiff’s Petition.
5. Defendants are without sufficient knowledge, information or belief to admit or deny the allegations set forth within paragraph 10 of Plaintiff’s Petition.
6. Defendants deny the allegations set forth within paragraph 11 of Plaintiff’s Petition, with the exception of the allegations as to profitability, as Defendants have no knowledge of those facts.
7 Defendants deny the allegations set forth within paragraph 12 of Plaintiffs Petition, except that the allegations as to Plaintiffs ability to remove bitumen, which is expressly denied.
8. Defendants admit the allegations set forth within paragraph 13 of Plaintiff’s Petition.
9. Defendants deny the allegations set forth within paragraph 14 of Plaintiff’s Petition.
10. Defendants admit the allegations set forth within paragraph 15 of Plaintiffs Petition.
11. Defendants deny the allegations set forth within paragraph 16 of Plaintiff’s Petition.
12. Defendants admit the allegations set forth within paragraph 17 of Plaintiff’s Petition.
13. Defendants deny the allegations set forth within paragraph 18 and 19 of
Plaintiffs Petition.
14. Defendants denies the allegations set forth within paragraph 20 of Plaintiff’s Petitioa
15. Defendants deny the allegations set forth within paragraph 21 of Plaintiff’s Petition.
16. Defendants deny the allegations set forth within paragraph 22 through 25 of Plaintiffs Petition.
17. Defendants admit that pipe remains in Plaintiff’s stockyard, but deny the remaining allegations within paragraph 26 of Plaintiff’s Petition.
18. Paragraph 27 of Plaintiffs Petition requires no further response.
19. Defendants deny the allegations set forth within paragraph 28 through 30 of Plaintiff’s Petition.
20. Paragraph 31 of Plaintiff’s Petition requires no further response.
21. Defendants deny the allegations set forth within paragraph 32 through 34 of Plaintiffs Petition.
22. Paragraph 35 of Plaintiff’s Petition requires no further response.
23. Defendants admit that the pipe delivered to Plaintiff was to be reground and sold, but deny the remaining allegations set forth within paragraph 36 through 44 of Plaintiff’s Petition.
24. Paragraph 45 of Plaintiffs Petition requires no further response.
25. Paragraph 46 through 52 of Plaintiff’s Petition assert claims against Defendant Luten and require no fhrther response for these answering Defendants.
26. Paragraph 53 of Plaintiff’s Petition requires no further response.
27. Defendants admit that the pipe delivered to Plaintiff was to be reground and sold, but deny the allegations set forth within paragraph 54 through 61 of Plaintiff’s Petition.
28. Paragraph 62 of Plaintiffs Petition requires no further response.
29. Paragraph 63 through 69 of Plaintiff’s Petition assert claims against Defendant Lu.ten and require no further response for these answering Defendants.
30. Paragraph 70 of Plaintiff’s Petition requires no further response.
31. Paragraph 71 through 73 of Plaintiff’s Petition assert claims against Defendant Luten and require no further response for these answering Defendants.
32. Paragraph 74 of Plaintiff’s Petition requires no further response.
33. Defendants deny the allegations set forth within paragraph 75 through 77 of Plaintiffs Petition.
AFFIRMATIVE DEFENSES
1. Plaintiff is estopped from asserting the claims in its Petition.
2. The doctrine of latches precludes Plaintiff from asserting the claims set forth within its Petition.
3. Plaintiff has waived the right to pursue the claims set forth in its Petition.
4. Plaintiff’s fraud and misrepresentation preclude Plaintiff form asserting the claims set forth within its Petition,
5. Plaintiff is precluded from seeking equitable relief as a result of Plaintiffs unclean hands.
6. Plaintiff has released Defendants from the claims set forth within Plaintiff’s Petition.
7. Plaintiff has failed to mitigate any damages that it may have suffered.
8. Plaintiff’s prior breach of its obligations to Defendant Vikoz Enterprizes,
Inc., precludes Plaintiff from seeking the relief requested in its Petition.
9. This Court lacks jurisdiction over the Defendants.
10. The Plaintiff accepted the goods in question.
I1. Plaintiff did not provide consderatien for the alleged promises set forth in Plaintiff’s Petition.
12. The ftaud of the Plaintiff and Third Party Defendant Jeff Barton preclude Plaintiff from obtaining the relief requested in Plaintiffs Petition.
COUNTERCLAIM AND THIRD PARTY PETITION
Defendant, Vikoz Enterprises. Inc., for its Counterclaim against the Plaintiff, U? Cycled Materials, LLC, and for its Third Party Petition against the Third Party Defendant, Jeff Bacon, states:
FIRST CAUSE OF ACTION
(Breach of Contract)
Defendant, Vikoz Enterprises, Inc., for its First Cause of Action, states:
1. Vikoz Enterprises, Inc.. is a Utah corporation duly licensed to transaction business.
2. Plaintiff is a limited liability company doing business in Oklahoma.
3. Third Party Defendant Jeff Barren is an individual who resides in Texas, but is doing business in Oklahoma.
4. Defendant Vikoz Enterprises, Inc., at the special request and order of the
Plaintiff, supplied goods to Plaintiff.
5. Plaintiff failed to pay Vikoz Enterprises, Inc., for the delivered goods.
6. Plaintiff is indebted to Vikoz Enterprises, Inc., in the sum of $181,273.75 for the delivered goods.
7. Vikoz Enterprises, Inc., has demanded that Plaintiff pay for the delivered goods, however, Plaintiff has failed to pay for the goods.
8. Plaintiff is indebted to Vikoz Enterprises, Inc., in the sum of $181,273.75, together with interest.
9. Vikoz Enterprises, Inc., has been forced to seek the assistance of its counsel and is entitled to the assessment of reasonable attorneys’ fees as a part of its judgment herein.
Wherefore, Vikoz Enterprises, Inc., prays that this Court enter judgment in favor of Equipment Hunters, Inc., and against the P1aintiff, UP Cycled Materials, LLC, on Defendant’s First Cause of Action, in an amount ofSlSl,273.75, pre and post judgment interest, costs of the action, accrued and accruing, including a reasonable attorneys’ fee, and for such other and further relief as this Court deems just and equitable.
SECOND CAUSE OF ACTION
(Misrepresentation)
Defendant, Vilcoz Enterprises, Inc., for its Second Cause of Action, states:
10. Defendant re-alleges and restate each and every allegation set forth within paragraphs I through 9 of Defendant’s Counterclaim and Third Party Claim as if fully set forth herein.
11. During late 2011, Vikoz Enterprises, Inc., was supplying plastic materials to Plaintiff pursuant to purchase orders issued by Plaintiff
12. Some of the plastic materials supplied by Vilcoz Enterprises, Inc., to Plaintiff contained dirt and bitumen. Plaintiff, through its employees and one of its principals, Jeff Baton, inspected the materials and accepted them.
13. Knowing the state of the materials supplied by Vikoz Enterprises, Inc., to Plaintiff, Plaintiff and JeffBarron encouraged Vikoz Enterprises, Inc., to continue to supply additional materials to it.
14. Upon information and belief, Plaintiff and Jeff Barton encouraged Vikoz Enterprises, Inc., to supply additional materials at a time when Plaintiff andleffBarron had an undisclosed desire to obtain the materials, then later assert a defect in the materials to avoid payment to Vikoz Enterprises, Inc.
15. Vikoz Enterprises, Inc., reLied upon Plaintiff and Jeff Barton’s representations and directions and continued to supply plastic materials to Plaintiff. Vikoz Enterprises, Inc., supplied the additional materials not knowing that Plaintiff would later refuse to pay for them.
16. The actions of Plaintiff and Jeff Barton misrepresented facts to Vikoz Enterprises, Inc.
17. Vikoz Enterprises, Inc., has been damaged as a result of Plaintiff and Jeff Barron’s misrepresentation in an amount in excess of $10,000.00.
Wherefore, Vikoz Enterprises, Inc., prays that this Court enter judgment in favor of
Equipment Hunters, Inc., and against the Plaintiff, UP Cycled Materials, LLC, and the Third
Party Defendant, Jeff Barron, on Defendant’s Second Cause ofAction in an amount if excess of $10,000.00, pre and post judgment interest, costs of the action, accrued and accruing, including a reasonable attorneys’ fee, punitive damages, and for such other and further relief as this Court deems just and equitable.
THIRD CAUSE OF ACTION
(Fraud)
Defendant, Vikoz Enterprises, Inc., for its Third Cause of Action, states:
18. Defendant re-alleges and restate each and every allegation set forth within paragraphs 1 through 17 of Defendant’s Counterclaim and Third Party Petition as if (lilly set forth herein.
19. Upon information and belief, the Plaintiff Third Party Defendant encouraged Defendant Equipment Hunters, Inc., to supply additional materials to Plaintiff at a time when Plaintiff and Third Party Defendant had no intention of paying for the materials.
20. Upon information and belief; the actions of the Plaintiff and Third Party Defendant were willful and were undertaken by the Plaintiff and Third Party Defendant with the intent to injure Defendant Vikoz Enterprises, Inc.
21. Vikoz Enterprises relied upon the false statements of the Plaintiff and Third Party Defendant and continued to supply valuable materials to Plaintiff.
22. Vikoz Enterprises, Inc., has been damaged as a result of Plaintiff and Jeff Baron’s fraud in an amount in excess of$l0,000,00.
Wherefore, Vikoz Enterprises, Inc., prays that this Court enter judgment in favor of Vikoz, Enterprises, inc., and against the Plaintiff, UP Cycled Materials, LLC, and the Third Party Defendant, Jeff Barren, on Defendant’s Third Cause of Action in an amount if excess of $10,000.00, pre and post judgment interest, costs of the action, accrued and accruing, including a reasonable attorneys’ fee, punitive damages. and for such other and further relief as this Court deems just and equitable.
ANSWER To COUNTERCLAIM AND THIRD PARTY CLAIM
Plaintiff, Up-Cycled Materials. LLP (“UM”), and Third Party Defendant, Jeff Barron, for their Answer to Defendants Ed Osley and Vikoz Enterprises, Inc Counterclaim and 111ird Party Petition, allege and state as follows:
1. Plaintiff and Third Party Defendant admit the allegations contained in Paragraph
1 of the Counterclaim and Third Party Petition.
2. Plaintiff and Third Party Defendant admit the allegations contained in Paragraph 2 of the Counterclaim and Third Party Petition.
3. Plaintiff and Third Party Defendant admit the allegations contained in Paragraph 3 of the Counterclaim and Third Party Petition.
4. Plaintiff and Third Party Defendant admit that Defendant supplied goods to Plaintiff, but othenvise deny the allegations contained in Paragraph 4 of the Counterclaim and Third Party Petition.
5. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 5 of the Counterclaim and Third Party Petition.
6. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 6 of the Counterclaim and Third Party Petition.
7, Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 7 of the Counterclaim and Third Party Petition.
8. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 8 of the Counterclaim and Third Party Petition.
9. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 9 of the Counterclaim and Third Party Petition.
10. No response is necessary for the allegations contained in Paragraph 10 of the Counterclaim and Third Party Petition.
11. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 11 of the Counterclaim and Third Party Petition.
12. Plaintiff and Third Party Defendant admit that materials supplied contained dirt and bitumen. Plaintiff and Third Party Defendant otherwise deny the allegations contained in Paragraph 12 of the Counterclaim and Third Party Petition.
13. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 13 of the Counterclaim and Third Party Petition.
14, Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 14 of the Counterclaim and Third Party Petition.
15. Plaintiff and Third Party Defendant are without information sufficient to admit or deny the allegations contained in Paragraph 15 of the Counterclaim and Third Party Petition.
16. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 16 of the Counterclaim and Third Party Petition.
17. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 17 of the Counterclaim and Third Party Petition.
18. No response is necessary for the allegations contained in Paragraph 10 of the Counterclaim and Third Party Petition.
19. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 19 of the Counterclaim and Third Party Petition.
20. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 20 of the Counterclaim and Third Party Petition.
21. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 21 of the Counterclaim and Third Party Petition.
22. Plaintiff and Third Party Defendant deny the allegations contained in Paragraph 22 of the Counterclaim and Third Party Petition.
AFFIRMATIVE DEFENSES
By way of affirmative defenses, Plaintiff and Third Party Defendant would allege and state as follows:
1. Defendants have failed to state a claim upon which relief can be granted.
2. Defendants’ claims are barred by the doctrine of estoppels and waiver,
3. Defendants’ claims are barred because at no time were the actions taken by Plaintiff and Third Party Defendant malicious or wrongful.
4. Defendants’ claims are barred because at no time did Plaintiff or Third party Defendant use improper or unfair means with their dealings with Defendants.
5. Defendant’s claims are barred because Plaintiff and Third Party Defendants’ alleged wrongful conduct was justified, privileged, and excusable.
6. Defendants’ claims are barred by the doctrine of anticipatory repudiation.
this Answer to
7. Defendants did not exercise ordinary care and did not act reasonably to protect themselves or to mitigate any damage that it may have sustained by reason of Plaintiff and Third Party Defendant’s alleged wrongful conduct.
8. Defendants’ claims are barred by the doctrine of unclean hands.
9. Defendants’ fraud and misrepresentation preclude Defendants from asserting the claims set forth in their Counterclaims and Third Party Petition.
10. Plaintiff and Third Party Defendant reserve the right to amend include additional, general or affirmative defenses upon completion of discovery.
WHEREFORE, having fully answered the Defendants’ Counterclaims and Third Party Petition, the Plaintiff, Up-Cycled Materials, LLP, and Third Party Defendant, Jeff Barron pray that the relief requested by the Defendants be wholly denied, that Defendants’ actions be dismissed, and that judgment be entered in favor of Plaintiff, together with its costs, including reasonable attorneys’ fees, and for such other relief as may be just and proper.
Outcome: Plaintiff dismisses its claims against Defendants Equipment Hunters, Inc. and Craig Johansen with prejudice.
Plaintiff's Experts:
Defendant's Experts:
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