Date: 09-15-2012

Case Style: Tom Codding v. James V. McWhirter

Case Number: CJ2010-9928

Judge: Bryan C. Dixon

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: P. R. Tirell

Defendant's Attorney: Jon Laasch

Description: Tom Codding sued James V. McWhirter, McWhirter Developements, II< LLC d/b/a Stonehaven Senior Living and Stonehaven Residential Community and Gemini Solar Construction, Inc. d/b/a Gemini Relators claiming:

1. The Plaintiff is a resident of Oklahoma County, Oklahoma.

2. The Defendant is, upon information and belief, a resident of Oklahoma County, Oklahoma.

3. This action is based in conversion of funds taking place in Oklahoma County, Oklahoma.

4. Based upon the aforementioned, this Court has jurisdiction over the parties hereto and venue is proper in Oklahoma County, Oklahoma.

FACTS

5. ln November 2007 the Plaintiff received inheritance funds from the estate of his mother in the amount of $84,230.76 (the “Inheritance Funds”).

6. At such time, the Defendant was a family friend of the Plaintiff, and a member of the Plaintiffs church.

7. The Defendant offered to hold the Inheritance Funds in trust and manage such funds for the Plaintiff.

8. The Plaintiff agreed to have the Defendant hold the Inheritance Funds in trust, which were deposited into a banic account of which the Defendant was a signatory and had access, and the Plaintiff did not.

9. From approximately the end of December 2006, until November 2009, the Plaintiff lived in a housing unit (the “House”) provided by the Defendant in exchange for working at the housing complex.

10. Beginning in May 2010, the Plaintiff sought from the Defendant an accounting of how the Inheritance Funds were used and/or spent, and a return of any remaining funds.

11. In May 2010, the Defendant informed the Plaintiff that all of the Inheritance Funds had been used or spent, and thereafler provided an incomplete accounting of how the Inheritance Funds were used and spent and an accounting stating that Inheritance Funds were used to pay for rent at the House contrary to Defendant’s agreement with Plaintiff.

COUNT I

Accounting

The Plaintiff adopts and alleges the preceding paragraphs, and further states:

12. At all material times the Inheritance Funds were held in trust by the Defendant for use by the Plaintiff.

13. At all material times the account or accounts holding the Inheritance Funds were accessible by the Defendant and not the Plaintiff.

14. The Plaintiff has sought an accounting of the Inheritance Funds from the Defendant and has not received a complete accounting.

15. Defendant has advised Plaintiff that all Inheritance Funds have been used or spent.

16. The Plaintiff seeks an accounting of the use of the Inheritance Funds.

COUNT II

Conversion

The Plaintiff adopts and alleges the preceding paragraphs, and further states:

17. At all material times the Inheritance Funds were held in trust by the Defendant for use by the Plaintiff.

18. At all material times the account or accounts holding the Inheritance Funds were accessible by the Defendant and not the Plaintiff.

19. The Plaintiff used the Inheritance Funds to for his own purposes and/or purposes other than the benefit of the Plaintiff including, but not limited to, the use of Inheritance Funds contrary to the agreement between Plaintiff and Defendant to exchange room and board in the House for the Plaintiffs work at the housing complex.

20. The use of such ifinds as described herein was contrary to the consent of Plaintiff andlor was done without the knowledge of the Plaintiff.

COUNT III

Breach of Contract

The Plaintiff adopts and alleges the preceding paragraphs, and further states:

21. The Plaintiff and Defendant agreed to exchange room and board in the House for the Plaintiff’s work at the housing complex.

22. The Defendant breached such agreement by using the Inheritance Funds to pay for Plaintiffs room and board at the House.

23. As a result of Defendant’s breach, the Plaintiff suffered financial damages.

COUNT IV

Breach of Fiduciary Duty

The Plaintiff adopts and alleges the preceding paragraphs, and further states:

24. The Defendant maintained a position of trust and held a fiduciary responsibility to the Plaintiff as described herein with regard to the Inheritance Funds and because of his fiduciary relationship with Plaintiff.

25. The Defendant breached such duty as described herein, causing the Plaintiff to suffer damages.

26. As such, the Defendant breached his fiduciary duty to Plaintiff.

WHEREFORE, the Plaintiff respectfully prays that the Court enter judgment in his favor against the Defendants in excess of $10,000 for his damages suffered as well as costs and fees associated with this action and any and all other relief to which the Plaintiff may be entitled.

McWhirter answered as follows:

The Defendant denies each and every allegation in the Petition that is not expressly admitted herein.

1. The Defendant is without sufficient knowledge or information to admit or deny the allegations in paragraph numbered 1 of the Petition, and, therefore, the allegations are denied and the Defendant demands strict proof thereof.

2. The Defendant admits the allegations in paragraph numbered 2 of the Petition.

3. The Defendant denies the allegations in paragraph numbered 3 of the Petition and demands strict proof thereof.

4. With respect to the allegations in paragraph numbered 4 of the Petition, the Defendant does not deny that this Court has jurisdiction over the parties hereto and that venue is proper in Oklahoma County, Oklahoma.

FACTS

5. The Defendant is without sufficient knowledge or information to admit or deny the allegations in paragraph numbered 5 of the Petition, and, therefore, the allegations are denied and the Defendant demands strict proof thereof.

6. With respect to the allegations in paragraph numbered 6 of the Petition, the Defendant admits that he was a family friend of the Plaintiff and that they attended the same church.

7. The Defendant denies the allegations in paragraphs numbered 7, 8 and 9 of the Petition and demands strict proof thereof.

8. With respect to the allegations in paragraph numbered 10 of the Petition, the Defendant admits that the Plaintiff has requested an accounting and the return of any remaining funds.

9. The Defendant denies the allegations in paragraph numbered 11 of the Petition and demands strict proof thereof.

COUNT I

Accounting

The Defendant incorporates herein paragraphs numbered 1 — 9 above as if the same were set forth fully herein and further alleges and states as follows:

10. The Defendant denies the allegations in paragraphs numbered 12, 13 and 14 of the Petition and demands strict proof thereof.

11. The Defendant admits the allegations in paragraph numbered 15 of the Petition and submits that the Defendant has spent additional sums of his own for the benefit of the Plaintiff for which the Defendant is entitled to judgment against the Plaintiff.

12. With respect to the allegations in paragraph 16 of the Petition, the Defendant admits that the Plaintiff is seeking an accounting.

COUNT II

Conversion

The Defendant incorporates herein paragraphs numbered 1 — 12 above as if the same were set forth fully herein and further alleges and states as follows:

13. The Defendant denies the allegations in paragraphs numbered 17, 18, 19 and 20 of the Petition and demands strict proof thereof.

COUNT III

Breach of Contract

The Defendant incorporates herein paragraphs numbered 1 — 13 above as if the same were set forth fully herein and further alleges and states as follows:

14. With respect to the allegations in paragraph numbered 21 of the Petition, the Defendant admits that he and the Plaintiff were exchanging room and board in the House for the Plaintiffs work at the housing complex, but only until the Plaintiff quit to work as a realtor.

15. The Defendant denies the allegations in paragraphs numbered 22 and 23 of the Petition and demands strict proof thereof.

COUNT W

Breach of Fiduciary Duty

The Defendant incorporates herein paragraphs numbered 1 — 15 above as if the same were set forth fully herein and further alleges and states as follows:

16. The Defendant denies the allegations in paragraphs numbered 24, 25 and 26 of the Petition and demands strict proof thereof.

AFFIRMATIVE DEFENSES

The Defendant, for further reply to the Petition, alleges and states as follows:

1. The Petition must be dismissed for failure of the Petition to comply with Okla. Stat. tit. 12, § 2008(A)(2).

2. The Plaintiff’s claims must be denied in whole or in part pursuant to estoppel.

3. The Plaintiff’s claims are barred in whole or in part by the statute of limitations.

4. The Plaintiffs claims are barred in whole or in part by failure of consideration.

5. The Plaintiff has waived some or all of his claims.

6. The Plaintiffs claims are barred in light of the Plaintiffs consent to the Defendant’s alleged acts and/or omissions.

7. The Plaintiffs claims are barred in whole or in part as a result of the Plaintiffs breach of contract.

8. The Defendant is indebted to the Plaintiff for sums advanced by the Defendant to the Plaintiff for which the Defendant is entitled to judgment against the Plaintiff.

9. The Defendant specifically reserves the right to assert additional affirmative defenses and/or counterclaims against the Plaintiff.

WHEREFORE, having fuiiy responded to the Plaintiffs Petition, the Defendant, James V. McWhirter, requests that the Petition be dismissed with prejudice, or alternatively, that the Plaintiff recover nothing therein, and that the Defendant recover his costs and expenses incurred herein, including a reasonable attorney fee, together with any additional relief this Court deems to be just and proper.

Outcome: Plaintiff's verdict for $37,000 on his wage claim and $5,619 on his covnversion, breach of fiduciary duty and breach of contract claims.

Plaintiff's Experts:

Defendant's Experts:

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