Date: 12-29-2012

Case Style: Herlinda M. Arriaga v. Arthur A. Johnson, Jr.

Case Number: CJ-2011-5887

Judge: Carlos Chappelle

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Herlinda M. Arriaga, pro se and Brenda McCord

Defendant's Attorney: James C. Hodges and Shanann Pinkham Passley

Description: Herlinda M. Arriaga sued Arthur A. Johnson, Jr. on a breach of contract theory.

Defendant appeared and answered.

Plaintiff moved for summary judgment claiming:

1. This case was filed on October 20, 2011.

2. The Defendant was personally served on or about October 31, 2011.

3. On or about November 3, 2011, Arriaga served her first set of Requests for admissions upon the Defendant (“First Set of Requests for Admissions”) attached and marked as “Exhibit A” and incorporated by reference.

4. Defendant had forty-five (45) days, after service of the summons and petition, to serve answers or objections to the First Set of Requests for Admissions.1

5. Arriaga’s First Set of Requests for Admissions made the following requests:


7. REQUEST FOR ADMISSION NUMBER 1. Admit that on or about the February 6, 2011, you entered into an Oral Agreement with the Plaintiff.

8. REQUEST FOR ADMISSION NUMBER 2. Admit that pursuant to the February 6, 2011, Oral Agreement with the Plaintiff you promised to pay a then immediate payment for $2000.00 and subsequent monthly payments in the amount of $500.00.

9. REQUEST FOR ADMISSION NUMBER 3. Admit that pursuant to the February 6, 2011, Oral Agreement with the Plaintiff, on or about February 8, 2011, you issued a personal check drawn on an F&M Bank Account payable to Herlinda Arriaga in the amount of $2,000.

10. REQUEST FOR ADMISSION NUMBER 4. Admit that pursuant to the February 6, 2011, Oral Agreement with the Plaintiff, on or about February 28, 2011, you issued a personal check drawn on an F&M Bank Account payable to Herlinda Arriaga in the amount of $500.00.

11. REQUEST FOR ADMISSION NUMBER 5. Admit that pursuant to the February 6, 2011, Oral Agreement with the Plaintiff, on or about June 8, 2011, you issued a personal check drawn on art F&M Bank Account payable to Herlinda Arriaga in the amount of $2000.00.

12. REQUEST FOR ADMISSION NUMBER 6. Admit that pursuant to the February 6, 2011, Oral Agreement with the Plaintiff, on or about March 28, 2011, you caused a $500.00 payment to be paid to Plaintiff.

13. REQUEST FOR ADMISSION NUMBER 7. Admit that since June 30, 2011, you have failed to pay Plaintiff any sum of money.

14. REQUEST FOR ADMISSION NUMBER 8. Admit or deny that YOU currently owe the Plaintiff more than $20,000.00.

15. REQUEST FOR ADMISSION NUMBER 9. Admit that YOU are in breach of the Oral Agreement which forms the basis of Plaintiffs Petition.

16. REQUEST FOR ADMISSION NUMBER 10. Admit that as a result of your breach of the Oral Agreement, you have caused Plaintiff damage which exceeds $20,000.00.

17. As of March 23, 2012, Defendant has failed to answer or to object to the First Second Set of Requests for Admissions (Exhibit B).

18. On or about February 6, 2012, Arriaga submitted an additional set of Requests for Admissions to the Defendant (Second Set of Requests for Admissions”) attached and marked as “Exhibit C” and incorporated by reference.

19. Defendant had thirty (30) days2 plus an extra three (3) days after service by mail3 to serve answers or objections to the Second Set of Requests for Admissions.

20. Arriaga’s Second Set of Requests for Admissions made the following requests:

21. REQUEST FOR ADMISSION NO. 1: Admit that Defendant’s perfomiance under the alleged oral agreement could have been completed within one year from the date of its alleged origination.

22. REQUEST FOR ADMISSION NO. 2: Admit that the alleged agreement between you and the Plaintiff is not the first instance in which you have paid for services rendered to or for the benefit of Bradley Johnson.

23. REQUEST FOR ADMISSION NO. 3: Admit or deny that Bradley Johnson requested that you enter an agreement with Plaintiff for payment of legal services.

24. REQUEST FOR ADMISSION NO. 4: Admit or deny that Bradley Johnson requested that you enter an agreement with Plaintiff for payment of legal services.

25. REQUEST FOR ADMISSION NO. 5: Admit or deny that subsequent to February 2011, you began to actively participate in the divorce case of Bradley Johnson.

26. REQUEST FOR ADMISSION NO. 6: Admit or deny that subsequent to February 2011, you contacted Mr. Sam Daniels and attempted to negotiate a settlement between his client, Kelly Johnson, and Bradley Johnson.

27. REQUEST FOR ADMISSION NO. 7: Subsequent to February 2011, admit or deny that did not discuss your intent to contact/communicate with Mr. Sam Daniel with the Plaintiff.

28. REQUEST FOR ADMISSION NO. 8: Admit or deny that prior to February 2011, there was no communication between you and the Plaintiff regarding monies to be provided to the Plaintiff for legal services.

29. REQUEST FOR ADMISSION NO. 9: Admit or deny that but for Bradley Johnson’s request for monies or payment to be issued to the Plaintiff, you would not have paid any monies to Plaintiff

30. REQUEST FOR ADMISSION NO. 10: Admit or deny that in connection with the agreement alleged by the Plaintiff, you stated words to the effect of because you were paying the Plaintiff for legal services provided to Bradley Johnson, the Plaintiff was required or should keep you apprised as to any significant developments in Bradley Johnson’s divorce case.

31. REQUEST FOR ADMISSION NO. 11: Admit or deny that in connection with the agreement alleged by the Plaintiff you instructed or requested Plaintiff to submit monthly invoices to Bradley Johnson.

32. REQUEST FOR ADMISSION NO. 12: Admit or deny that subsequent to February 2011, you believed, stated, and/or contended that because you were paying Plaintiff for legal services in connection with Bradley Johnson’s divorce case, if you did not receive a return telephone call from the Plaintiff within a timeframe you deemed acceptable, you expressed dissatisfaction to Bradley Johnson.

33. REQUEST FOR ADMISSION NO. t3: Admit or deny that you were aware of Plaintiff’s intent to withdraw from Bradley Johnson’s domestic case due to the lack of payment.

34. As of March 23, 2012, Defendant has failed to answer or to object to the Second Set of Requests for Admission (Exhibit B).

Defendant responded to Plaintiff's Motion for Summary Judgment as follows:

1. Plaintiff (sic) does not dispute Plaintiffs Statement of Material Facts Nes. FThrough 34. That is to say, the Defendant admits that the Plaintiff transmitted her First an4Efiecond Requests for Admission to him and to his previous counsel as stated, and that the Requests have not been answered.

2. Defendant does, however, dispute that his failure to answer the First and Second Requests for Admissions constitutes an admission of the underlying facts. See Statement of Additional Uncontroverted Facts below, Paragraph 12.

STATEMENT OF ADDITIONAL

UNCONTROVERTED FACTS

1. As stated in her Petition, the Plaintiffs claim is based upon an “oral agreement” allegedly made by the Defendant “on or about February 6, 2011” to pay for legal services being

provided to his son by the Plaintiff in Case No. FD-20l0-l615, the son’s divorce action. See Plaintiffs Petition attached hereto as Exhibit “A,” Paragraph 5.

2. The Defendant denies that he made any such agreement with the Plaintiff. See Defendant’s Answer attached hereto as Exhibit “B.” See also the Affidavit of Arthur A. Johnson, Jr. (the Defendant) attached hereto as Exhibit “C,” Paragraph 3.

3. The Plaintiff began representing the Defendant’s son in June, 2010 and continued to represent the son through November, 2011. See the Docket Sheet for .Case No. FD-2010-1615 attached hereto as Exhibit “D.”

4. For the period from June, 2010 through the month of January, 2012, the Plaintiff issued statements to the Defendant’s son, reflecting services rendered on behalf of the son and payments made on the son’s account, See the Plaintiffs Statements attached hereto as Exhibit “E.” The Plaintiffs Statements were at all times addressed to “Brad Johnson” (the Defendant’s son). The Plaintiffs Statements were never addressed to Arthur A. Johnson, Jr. (the Defendant), even after February 6, 2011 when the Defendant allegedly made an oral agreement to pay the Plaintiff

7. The Defendant made the following payments to the Plaintiff on behalf of his son: $2,000 on November 10, 2010; S2,000 on February 7, 2011; $500 on March 1, 2011; $500 on March 29, 2011; and $2,000 on June 8, 2011, some of which checks are attached hereto as Exhibit “F.” The Defendant considered these payments to be voluntary on his part and not made under any obligation. See the Johnson Affidavit, Paragraph 4, Exhibit “C.”

8. From time to time when the Defendant made a payment on behalf of his son, the Plaintiff issued a receipt noting that the payment had been made on the “Brad Johnson” account. See the Plaintiffs Receipts attached hereto as Exhibit “G.” The Plaintiffs Receipts continued to acknowledge that payments were made on the account of “Brad Johnson” even after February 6, 2011 when the Defendant allegedly made an oral agreement to pay the Plaintiff.

9. Whenever the Defendant made a payment on behalf of his son, the Plaintiff credited the payment to the outstanding balance that had accrued on the “Brad Johnson” account. All of the Defendant’s payments were credited to outstanding balances which had accrued prior to February 6, 2011 when the Defendant allegedly made an oral agreement to pay the Plaintiff. See the Plaintiffs Statements, Exhibit E.

10. The Plaintiff has not released Brad Johnson from liability on his account with the Plaintiff Brad Johnson continues to pay on the Plaintiffs account. See the Affidavit of Brad Johnson attached hereto as Exhibit “H,” Paragraphs 4, 5.

11. The Defendant did not become a client of the Plaintiff, and the Plaintiff did not perform any legal services for the Defendant or that benefitted the Defendant personally. Johnson Affidavit, Paragraph 5, Exhibit “C.”

12. The Defendant has filed his Motion to Re-open seeking the Court’s Order reopening the period for Defendant to answer the Plaintiffs First and Second Set of Requests for Admissions, See the Defendant’s Motion to Re-Open attached hereto as Exhibit “I.” If Defendant’s Motion is granted, he will answer Plaintiffs First and Second Requests within a shortened pcriod of time.

Court Minute:

CHAPPELLE, CARLOS; ORDER; PLAINTIFF'S CONSOLIDATED MOTION FOR SUMMARY JUDGMENT & SUPPORTING BRIEF FILED 03-23-12 IS DENIED. TITLE 15 O.S. 324 PROVIDES AS FOLLOWS: EXCEPT AS PRESCRIBED BY THE NEXT SECTION, A GUARANTY MUST BE IN WRITING, AND SIGNED BY THE GUARANTOR; BUT THE WRITING NEED NOT EXPRESS A CONSIDERATION. THE DEFENDANT'S ORAL AGREEMENT TO PAY THE ATTORNEY FEES OF HIS SON IS A GUARANTY. THE COURT GRANTS SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT AS A MATTER OF LAW.

DEFENDANT'S MOTION TO RE-OPEN THE PERIOD TO RESPOND TO PLAINTIFF'S DISCOVERY REQUESTS, OR IN THE ALTERNATIVE, TO PERMIT WITHDRAWAL OR AMENDMENT OF HIS PURPORTED ADMISSIONS FILED 04-10-12 IS RENDERED MOOT BY VIRTUE OF THE COURT'S GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANT.

COUNSEL FOR DEFENDANT TO PREPARE ORDER. NOTICE TO: BRENDA MCCORD, JIM HODGES;

Outcome: This matter comes before the Court on Defendant’s Application for Attorney Fees. The Court, having reviewed the briefs, having examined applicable law, and being fuliy advised in the premises, finds that the Defendant’s Application for Attorney Fees should be and is hereby GRANTED.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment is hereby rendered in favor of Defendant Arthur A. Johnson, Jr., and against Plaintiff Herlinda M. Arriaga in the amount of Eleven Thousand, Two Hundred Eighty-three and 80/100 Dollars ($11,283.80).

Now on this 7, day of November, 2012, this matter in the designated case comes on for consideration by the Court pursuant to the rules of the District Court for Tulsa County for entry of this Agreed Order Vacating and Setting Aside Certain Previous Orders (“Agreed Order”). Neither the Plaintiff, Herlinda M. Arriaga, nor her attorney of record, Brenda H. McCord, appear, having previously agreed to the terms and conditions of this Agreed Order as evidenced by counsel’s signature below. Likewise, neither the Defendant, Arthur A. Johnson, nor his attorneys of record, James C. Hodges and Shanann Pinkham Passley, of the law firm Eller and Detrich, P.C., appear having previously agreed to the terms and conditions of this Agreed Order as evidenced by counsel’s signature below. After review of the Court’s file and in light of the fact that this is an Agreed Order, the Court finds good cause exists, and FINDS AS FOLLOWS:

1. The parties have reached a full and final resolution of this matter pursuant to the terms and provisions of the Settlement & Full Mutual Release Agreement (“Settlement Agreement”) executed by both parties and their respective counsel copies of which are in the parties’ and/or their respective counsel’s possession which shall remain separate and not part of the court’s file.

2. The parties stipulate and agree that the Settlement Agreement requires the vacation of certain previous orders, to wit:

A. The Minute Order entered and resulting Order issued on or about May 15. 2012;

B. The Order issued on or about July 5, 2012;

C. The Minute Order entered and resulting Order issued on or about September 13, 2012;

D. The Minute Order entered and resulting Order issued on or about October 12, 2012 and any resulting or subsequent order entered thereof (Collectively referred to as ‘Previous Orders”).

3. Pursuant to the parties’ request for this Court to adopt the terms and conditions of the Settlement Agreement, the Court hereby adopts, ORDERS.

ADJUDGES AND DECREES

That the Previous Orders of the Court are hereby vacated, set aside, and held for naught.

4. The parties are further ordered to cooperate to carry out the purpose and intent of this Agreed Order.

Plaintiff's Experts:

Defendant's Experts:

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