Date: 01-22-2015

Case Style: Michael Anderson v. Ben Perrine

Case Number: CJ-2013-2368

Judge: Carlos Chappelle

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Dennis Caruso and Mark Smith

Defendant's Attorney: Paula Quillin and Alex Sisemore

Description: Plaintiff, Michael Anderson, hereby files this Petition against Defendant Ben Perrine and for his Petition, states and alleges as follows:
PARTIES, JURISDICTION AND VENUE
1. Plaintiff is an individual and citizen of the State of Oklahoma residing in Rogers County.
2. Defendant Ben Perrine is an individual and citizen of the State of Oklahoma residing in Tulsa County. Ben Perrine is a licensed attorney at law, member of the Oklahoma Bar, and an employee of the law firm Smolen, Smolen & Roytman, PLLC (“SSR”) during all relevant times.
3. Venue is proper in Tulsa County, Oklahoma. The wrongful acts alleged herein occurred in Tulsa County, Oklahoma. Defendant is a citizen of the State of Oklahoma and resides in Tulsa County, Oklahoma.
4. Pursuant to Okla. Stat. tit. 12, § 19, Plaintiff has attached an Affidavit of Merit to this petition.
GENERAL ALLEGATIONS AND FACTUAL BACKGROUND
5. Plaintiff was terminated from his job at IC Bus, a subsidiary of Navistar, Inc., on January 24, 2012.
6. On January 30, 2012, Plaintiff retained Defendant Ben Perrine, an employee of SSR to commence legal proceedings for wrongful termination on the basis of his age (over the age of 40) against IC Bus and Navistar, Inc.
7. Defendant Ben Perrine was an employee of SSR during the times at issue herein and was assigned to Plaintiffs case.
8. Upon information and belief, Ben Perrine informed Plaintiff that a claim had to be filed with the U.S Equal Employment Opportunity Commission (EEOC) within three hundred (300) days of Plaintiffs termination from IC Bus (300 days from January 24, 2012) before a lawsuit could be filed for wrongful termination in court. In addition, Plaintiff was advised that he had a meritorious claim for relief and substantial damages against IC Bus arising from the unlawful discrimination.
9. Upon information and belief, Ben Perrine repeatedly assured Plaintiff that he was taking all necessary steps to complete the process of filing with the EEOC and taking all necessary steps to preserve and timely commence a civil lawsuit for wrongful termination in court. In reality, Ben Perrine wholly failed to take any actions to diligently pursue Plaintiffs case with the EEOC or to preserve and protect Plaintiffs rights to pursue a civil lawsuit in court.
10. The Age Discrimination in Employment Act (ADEA) requires a complainant to exhaust their administrative remedies, including submitting their claim to the EEOC, prior to the filing of a civil action in court. Without justification or cause, Defendant failed to timely submit Plaintiffs claim to the EEOC. As a result, Plaintiff is barred from prosecuting his claim for wrongful termination in court.
COUNT I
BREACH OF CONTRACT
11. Plaintiff incorporates and realleges all allegations stated hereinbefore.
12. Plaintiff and Defendant entered into an express written contract on January 30,
2012 for Defendant to represent Plaintiff in the prosecution of any and all claims for wrongful termination arising out of Plaintiffs termination from IC Bus on January 24, 2012.
13. Defendant breached his contractual duty to Plaintiff by failing to file the requisite EEOC information within 300 days of the wrongful termination. Further, Defendant breached his contractual duty to Plaintiff by failing to preserve and protect Plaintiff s right to commence an action for wrongful termination in state court.
14. Defendant’s contractual breaches caused damages to Plaintiff and, upon information and belief, Plaintiffs damages are in excess of Seventy Five Thousand Dollars
($75,000).
COUNT II
BREACH OF FIDUCIARY DUTY
15. Plaintiffs incorporate and reallege all allegations stated hereinbefore.
16. Defendant owes a fiduciary duty to Plaintiff in the performance of any service undertaken as an attorney on behalf of Plaintiff. Defendant has breached his fiduciary duty to Plaintiff. Plaintiff has been deprived of his day in court on a meritorious wrongful termination action as a result of Defendant’s breach of fiduciary duty.
17. The relationship between Defendant and Plaintiff is such that Plaintiff has reasonably placed trust and confidence in Defendant, In addition, Defendant is required to act in the utmost good faith with respect to his obligations to Plaintiff, Defendant also had the duty to fully and completely disclose all facts surrounding the status of Plaintiffs claims against IC Bus and Navistar. Rather than fully and completely disclosing all of the facts, Defendant actively and fraudulently concealed the status of the claims.
18. The fiduciary and confidential relationship was never repudiated by Defendant and Defendant acted as Plaintiffs attorney at all relevant times.
19. Defendant breached his fiduciary duties and obligations to Plaintiff by doing all of the acts and omissions as alleged in this Petition, including, but not limited to, Defendant’s complete and utter failure to timely preserve and protect Plaintiffs meritorious claims against IC Bus and Navistar and for failing to diligently prosecute Plaintiffs claims for discrimination and wrongful termination. Defendant’s breach of fiduciary duty resulted in Plaintiffs claims being legally barred by Oklahoma law.
20. Defendant’s breaches of his fiduciary obligations caused damages to Plaintiff and, upon information and belief, Plaintiffs damages are in excess of Seventy Five Thousand Dollars
($75,000).
21. Defendant’s conduct was done intentionally, maliciously and with reckless disregard of the rights of Plaintiff Plaintiff is thus entitled to both actual and punitive damages against Defendant.
COUNT III
NEGLIGENCE
22. Plaintiff incorporates and realleges all allegations stated hereinbefore.
23. Defendant has a duty to possess that degree of knowledge and ability ordinarily possessed by other members of the legal profession, and further, had a duty to exercise ordinary care, diligence and judgment in the performance of any service undertaken as an attorney.
24. Defendant breached this duty owed to Plaintiff by failing to timely take all
actions necessary to preserve and protect Plaintiffs legal claims against IC Bus and Navistar.
25. Defendant’s malpractice and negligence caused damages to Plaintiff and, upon information and belief, Plaintiffs damages are in excess of Seventy Five Thousand Dollars
($75,000).
26. Defendant’s conduct was done intentionally, maliciously and with reckless disregard of the rights of Plaintiff. Plaintiff is thus entitled to both actual and punitive damages against Defendant.
COUNT IV
ACUAL AND CONSTRUCTIVE FRAUD AND DECEIT
27. Plaintiff incorporates and realleges all allegations stated hereinbefore.
28. Defendant owes many duties to Plaintiff, including, but not limited to, a duty to exercise ordinary care, diligence and judgment in the performance of any service undertaken as an attorney, duty to possess that degree of knowledge and ability ordinarily possessed by other members of the legal profession, and a fiduciary duty.
29. Defendant represented to Plaintiff that he would diligently pursue Plaintiffs legal and equitable claims against IC Bus and Navistar, Inc.
30. Upon inquiry, Defendant repeatedly and falsely assured Plaintiff that he was diligently preserving and protecting all legal and equitable claims and remedies. Defendant’s misrepresentations to Plaintiff were made knowing that he had not, and had no intention of, taking any actions in pursuit of Plaintiffs claims.
31. Plaintiff relied, to his detriment, on Defendant’s active misrepresentations and
concealment that he was diligently pursuing, protecting and preserving Plaintiff’s legal and equitable claims and remedies.
32. Defendant’s actions and misrepresentations constitute actual and constructive fraud and deceit.
33. Defendant’s fraud and deceit caused damages to Plaintiff and, upon information and belief, Plaintiff’s damages are in excess of Seventy Five Thousand Dollars ($75,000).
34. Defendant’s conduct was done intentionally, maliciously and with reckless disregard of the rights of Plaintiff. Plaintiff is thus entitled to both actual and punitive damages against Defendant.
WHEREFORE, Plaintiff demands judgment against Defendant and in favor of himself, for the following relief:
a. Money damages, the amount of which is presently unknown, but is believed to be in excess of $75,000.00;
b. Punitive damages under 23 0.5. Sections 9.1, as a result of Defendant’s malicious, intentional, and reckless disregard for the rights of Plaintiff, in an amount sufficient to punish Defendant and to deter such conduct in the future, which amount shall be determined by the jury;
c. Costs, including reasonable attorneys’ fees, as permitted by law;
d. Such other relief in law and equity, including, without limitation, costs incurred by Plaintiff, pre-judgment interest, post-judgment interest, and any other relief to which Plaintiff shows himself to be entitled.

Outcome: Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: