Date: 10-03-2012

Case Style: Graybar Electric Company, Inc. v. Poisson Communications, Inc.

Case Number: CJ-2012-2610

Judge: Roger H. Stuart

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Rob F. Robertson and John "Jake" Krattiger

Defendant's Attorney:

Description: Plaintiff Graybar Electric Company, Inc. (“Graybar”), for its petition against Defendants, alleges and states the following:

PARTIES

1. Graybar is a New York corporation duly authorized to transact business in the State of Oklahoma. Graybar has a place of business at 103 N.E. 44th Street, Oklahoma City, Oklahoma County, Oklahoma 73105.

2. Poisson Communications, Inc. (“Poisson Communications”) is an Oklahoma corporation, with its principal place of business at 18144 E. Coffee Creek Rd., Luther, Oklahoma County, Oklahoma 73054.

3. Teresa A. Poisson is an individual residing at 1304 NW 16th St, Oklahoma City, Oklahoma, 73106.

4. Michael E. Poisson is an individual residing at 1304 NW 16th St, Oklahoma City, Oklahoma, 73106.

JURISDICTION AND VENUE

5. Jurisdiction and venue are proper in this Court as the contract at issue was performed, and the subject property is located, in Oklahoma County, Oklahoma.

FACTS AND CAUSES OF ACTION

6. On or about February 27, 2008, Poisson Communications, acting through its president, Teresa A. Poisson (“Teresa Poisson”), applied for credit to purchase wholesale materials from Graybar on an open account. See Commercial Credit Application, a copy of which is attached hcreto as Exhibit I.

7. Teresa Poisson, acting on behalf of Poisson Communications, authorized the agreement (the “Contract”) between Poisson Communications and Graybar for the open credit account (the “Account”). Such Contract was reduced to writing and signed by Teresa Poisson as President of Poisson Communications. Both parties to this Contract are capable of forming contracts. See Exhibit 1.

8. Poisson Communications was allowed a line of credit with Graybar. In consideration of Poisson Communications’ promise to pay for goods taken on the Account, Poisson Communications ordered and received goods for which a debt of $33,564.74 is now owing to Graybar. The taking of such goods is documented by the Statement of Account, attached hereto as Exhibit 2.

9. In order to induce Graybar to extend credit to Poisson Communications, both Teresa Poisson and Michael E. Poisson executed personal guarantees for the performance of all obligations of Poisson Communications arising under the Contract. See Exhibit 1.

10. The goods taken by Poisson Communications were delivered to, and used upon, Poisson Communications projects at:

Nellis Air Force Base 4430 Grissom Ave. Nellis AFB, NV 89191

11. Poisson Communications’ Contract with Graybar provides that Poisson Communications agreed to pay all sums due on the Account, monthly service charges on overdue payments at a rate of 1.5% per month, collection expenses, and attorneys’ fees of 33% of the judgment amount in the event of default. See Exhibit I. Count One — Breach of Contract (Poisson Communications)

12. Plaintiff hereby restates its allegations in Paragraphs 1 through 11 of the Petition as though set forth here in their entirety.

13. Poisson Communications and Graybar entered into a valid and enforceable Contract as set forth above. Graybar has fully performed its obligations under the Agreement, and all conditions precedent to Poisson Communications’ obligation of performance under the contract have been satisfied.

14. Poisson Communications has breached the Agreement by defaulting on its obligation to pay Graybar’s invoices when those invoices become due and owing.

15. Poisson Communications’ breach of the contract was material and has caused damage to Graybar.

16. Graybar has made multiple demands for payment of the amount owed by Poisson Communications, and Poisson Communications has reftised to make payment. See Demand Letters attached as Exhibit 3.

17. Wherefore, Graybar requests that this Court enter judgment in its favor and against Poisson Communications, exclusive of costs, attorneys’ fees, and any other legal or equitable relief to which Graybar is entitled, in the amount of 533,564.74. Graybar further requests that the Court award it its costs and interest at the contractual rate of 1.5%, attorneys’ fees at the contractual rate of 33% of the judgment amount, and such other relief as the Court may deem just and proper.

Count Two — Guaranty (Teresa A. Poisson & Michael E. Poisson)

18. On or about February 27, 2008, defendants Teresa Poisson and Michael Poisson executed and delivered to Graybar a personal guaranty of all obligations incurred by Poisson Communications under the terms of its Agreement with Graybar. Under this guaranty, Teresa Poisson and Michael Poisson agreed to pay all sums due on the open account with Graybar, service charges on overdue payments at a rate of 1.5% per month, and attorneys’ fees incurred to collect amounts due on the open account in the amount of 33% of the judgment.

19, Poisson Communications is in default under its Agreement with Graybar. As guarantors of Poisson Communications’ obligations under the Agreement, Teresa Poisson and Michael Poisson are jointly and severally liable to Graybar for S33,564.74, plus costs and interest at the contractual rate of 1.5% per month, and attorneys’ fees at the rate of 33% of the judgment.

Wherefore, Graybar demands judgment in the amount of $33,564.74, constituting Defendants Poisson Communications, Teresa A. Poisson, and Michael E. Poisson’s unpaid debt to Graybar described herein, plus interest, including pre-judgment interest under OKLA. STAT. tit. 12, § 727, costs of this action, and attorneys fees.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AGAINST DEFENDANTS AND BRIEF IN SUPPORT

Pursuant to Rule 13, Rules for the District Courts of Oklahoma, Plaintiff Graybar Electric Company, Inc. (“Graybar” or “Plaintiff”) is entitled to suimnary judgment in its favor on its claim for breach of contract against Defendants Poisson Communications, Inc. (“Poisson Communications”), Teresa A. Poisson (“Teresa Poisson”), and Michael F, Poisson (“Michael Poisson”) (collectively, “Poisson,” or “Defendants”) because the undisputed facts prove that Defendants are indebted to Graybar on an open account. In support of this motion, Plaintiff’s brief in support and exhibits thereto are set forth below and attached hereto.

STATEMENT OF THE CASE

On or about February 27, 2008, Poisson Communications, acting through its president, Teresa Poisson, opened an account with Graybar on which Poisson Communications received goods in exchange for a promise to pay for such goods. Teresa Poisson and Michael Poisson personally guaranteed prompt and fill payment of any and all obligations of Poisson Communcations on the open account to Graybar. Goods were delivered by Graybar to Poisson Communications for which Poisson Communications, Teresa Poisson, and Michael Poisson, as personal guarantors, are now indebted to (Iraybar for the amount of $32,064.74. There is no evidence to the contrary; therefore, Graybar is entitled to judgment as a matter of law.

STATEMENT OF THE MATERIAL FACTS AS TO WHICH NO DISPUTE EXISTS

1. On or about February 27, 2008, Poisson Communications, acting through its president, Teresa Poisson, applied for credit to purchase materials from Graybar on an open account. See Commercial Credit Application, a copy of which is attached hereto as Exhibit 1.

2. Poisson, acting on behalf of Poisson Communications, authorized the agreement (the “Contract”) between Poisson Communications and Graybar for the open account (the “Account”). Such Contract was reduced to writing and signed by Teresa Poisson. Both parties to this Contract are capable of forming contracts. See Exhibit 1.

3. Poisson Communications was allowed a line of credit with Graybar. In consideration of Poisson Communications’ promise to pay for goods taken on the Account, Poisson Communications ordered and received goods for which a debt of $32,064.74 is now owing to Graybar, together with monthiy service charges and collection expenses accrued and accruing. The taking of such goods is documented by invoice receipts. See Declaration of Graybar Assistant Financial Manager Kristin Twitcheil, a copy of which is attached hereto as Exhibit 2.

4. Poisson Communications’ Contract with Graybar provides that Poisson Communications agreed to pay all sums due on the Account, monthly service charges on overdue payments at a rate of 1 ‘/2% per month, and reasonable collection expenses, including 33% attorneys’ fees in the event of default. See Exhibit 1.

5. On or about February 27, 2008, Teresa Poisson and Miehel Poisson personally guaranteed all sums due and owing on Poisson Communications’ Account, including all service charges assessed against the Account and all reasonable collection expenses, including 33% attorney fees incurred in collecting on the Account. Id.

6. Payment for the debt owed by Poisson Communications to Graybar is due, but has not yet been paid. Poisson Communications has defaulted on payments due under its Contract with Graybar and is indebted to Graybar in the principal amount of $30,540.93, together with monthly service charges of $1,523.81 accrued through July 24, 2012, for a total amount due and owing of $32,064.74, exclusive of collection expenses. See Exhibit 2.

7. In their “Response to Petition,” Poisson Communications admits to owing the outstanding amount under its Agreement with Graybar. Additionally, Teresa Poisson and Michael Poisson admit to the execution of personal guarantees for the performance of all obligations of Poisson Communications to Graybar. See Response to Petition, a copy of which is attached hereto as Exhibit 31

8. Under the Agreement to pay reasonable collection expenses, including 33% attorneys’ fees, Graybar is owed $4,025.20 in attorneys’ fees and costs. See Declaration of John M. Krattiger, attorney for Graybar, attached hereto as Exhibit 4,

DISCUSSION

Summary judgment is appropriate and should be granted where it is clear there is no substantial controversy as to any material fact and the moving party is entitled to judgment as a matter of law, Weeks v. Wedgewood Village, Inc., 19760K 72 ¶ 12, 554 P.2d 780, 781. Here, it is undisputed that Poisson Communications has defaulted on payments due under its Contract with Graybar. It is also undisputed that Teresa Poisson and Michael Poisson personally guaranteed all sums due and owing on Poisson Communications’ open account. Thus, Graybar is entitled to recover the amount of $32,064.74, together with additional monthly service charges accrued and accruing at the contractual rate of 1 72% per month, and ith costs, including 33% attorneys’ fees, accrued and accruing until paid in full.

CONCLUSION

WHEREFORE, Graybar requests the Court to enter summary judgment against Defendants Poisson Communications, Inc., an Oklahoma corporation, Teresa A. Poisson, individually, and Michael E. Poisson, individually, in its favor for the full amount of the indebtedness, which amount is not in dispute, together with all interest and costs, including attorneys’ fees accrued and accruing.

Outcome: JOURNAL ENTRY OF JUDGMENT

This action came on for hearing before the undersigned Judge of the District Court of Oklahoma County on the 21St day of September, 2012. Plaintiff Graybar Electric Company, Inc. appears by and through its attorney of record John M. “Jake” Krattiger of the law firm GABLEGOTWALS. Having fully reviewed and considered the issues presented, judgment is rendered in the above-styled cause and numbered case as follows:

1. The Court, having reviewed the Court file and being fully advised in the premises, finds that the Motion for Summary Judgment filed by Plaintiff Graybar Electric Company, Inc. is granted in the amount of $32,064.74 in favor of Plaintiff, and jointly and severally against Defendants Poisson Communications, Inc., Teresa A. Poisson, and Michael E. Poisson, exclusive of pre-judgment interest, post-judgment interest, attorneys’ fees and costs.

2. Furthermore, Graybar is awarded its costs, interest, and late fees at the contractual rate of 1.5% of the judgment amount, and attorneys’ fees at the contractual rate of 33% of the judgment amount. Graybar has incurred costs in this matter of $392.06 and attorneys’ fees in the amount of $4,851.50, not including the fees and costs of this hearing.

3. Based upon these findings and the Court file, judgment should be entered in favor of Plaintiff, Graybar Electric Company, Inc. in the amount of $37,308.30. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendants Poisson Communications, Inc., Teresa A. Poisson, and Michael E. Poisson, are jointly and severally liable to Plaintiff, Graybar Electric Company, Inc., in the amount of $32,064.74.

It is further ORDERED, ADJUDGED AND DECREED THAT Plaintiff shall be awarded its pre- and post judgment interest, service charges, and costs incurred in this litigation at the contractual rate of 1.5% of the judgment amount, for a total amount of $392.06, together with its reasonable attorney’s fees incurred in this matter at the contractual rate of 33% of the judgment amount, for a total amount of $4,851.50.

It is further ORDERED, ADJUDGED AND DECREED THAT Plaintiff Graybar Electric Company, Inc., have and recover judgment jointly and severally of and from Defendants Poisson Communications, Inc., Teresa A. Poisson, and Michael E. Poisson, for the amount of $37,308.30, not including the fees and costs of this hearing.

Plaintiff's Experts:

Defendant's Experts:

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