Josh Carnley d/b/a AIM To Please v. Barry W. Cone d/b/a J. Cones Fleet Services

Tulsa, OK - Josh Carnley d/b/a AIM To Please sued Barry W. Cone d/b/a J. Cones Fleet Services claiming:



1. Plaintiff is a resident of Tulsa County, Oklahoma and the Contract that is the subject _ ··

matter of this lawsuit was entered into in Tulsa County, Oklahoma.



2. Upon information and belief, Defendant is a residents of Tulsa County or thtrprincipal 0



place of business of the Defendant is in Tulsa County, Oklahoma.



3. The events that give rise to this lawsuit occurred in Tulsa County, Oklahoma, and-I therefore, this Court has jurisdiction over the parties and the subject matter herein and venue is proper in this Court.

STATEMENT OF FACTS



4. In May of 2015, Plaintiff and Defendant entered into an agreement (the "Contract"), at Plaintiff s offices in Tulsa County, whereby Defendant agreed to replace the engine in Plaintiff s 2009 International Dura Star truck, vehicle identification number 1HTJTSKM59H099410 (the "Truck") for approximately $10,000.00 (the "Engine Replacement Cost").



5. In addition to agreeing to replace the engine in the Truck, Defendant represented to

Plaintiff that International would warranty the new engine.



6. At no time did Defendant advise Plaintiff that there would be any cost beyond the Engine Replacement Cost.



7. Thereafter, Defendant approached Plaintiff with an offer to trade two 2013 Kenworth Trucks in exchange for the Truck. Plaintiff and Defendant entered into a Purchase Agreement to memorialize that trade agreement and Plaintiff tendered an earnest money deposit to secure the transaction while the Truck was being repaired by Defendant.



8. Relying upon this future truck trade transaction, Plaintiff agreed to transfer title to one of the 2013 Kenworth Trucks to the buyer of Plaintiff's business.

9. On or about September 9, 2015, Defendant presented Plaintiff with an invoice totaling

$19,093.46 that Defendant represented were for parts used to install the engine on the Truck ("Invoice #1"). Invoice #1 is attached hereto as Exhibit "l".



10. In connection with Invoice # 1, Defendant submitted to Plaintiff an invoice for parts for the Truck in the amount of $17,466.93 ("Invoice #2"), attached hereto as Exhibit "2", which was purportedly for "parts" that Defendant fraudulently misrepresented that had been purchased for the Truck from Summit Truck Group, formerly d/b/a Frontier International ("Summit Truck").



11. The presentation of Invoice #'s 1 and 2 to Plaintiff, was the first time that Defendant advised Plaintiff of any additional cost over the Engine Replacement Cost and at no time did Plaintiff ever agree to this additional cost. This additional cost ($19,093.46) is hereinafter referred to as the "Disputed Cost").



12. Contrary to Defendant's fraudulent misrepresentations, Invoice #2 was not an invoice but rather was a Summit Truck quote that had been altered. Further, Defendant did not obtain the parts from Summit Truck, and Defendant did not pay for the parts by check as they fraudulently

misrepresented to Plaintiff.



13. In subsequent conversations with Defendant, Defendant continued to fraudulently

misrepresent to Plaintiff that the parts for the Truck had been purchased from Summit Truck. When Plaintiff confronted Defendant regarding the misrepresentation that the parts had been purchased from Summit Truck, Defendant then misrepresented that the parts had not been purchased from Summit Truck but, in fact, had actually been purchased from MAC Kenworth of Tulsa. Defendant did not present Plaintiff with an invoice for this alleged purchase from MAC Kenworth.



14. Subsequent to the conversation, and after apparently forgetting the prior misrepresentations, Defendant presented Plaintiff with yet another invoice for the Parts, this time from a company purportedly by the name of Ranes Truck Parts ("Invoice #3"), a company that Defendant advised was located in California. Invoice #3 is attached hereto as Exhibit "3".



15. The descriptions and prices of the Parts in Invoice #2 and Invoice #3, purportedly invoices from two separate parts suppliers, are identical.



16. Upon information and belief, Invoice #'s 2 and 3 were altered or manufactured by Defendant, contain false information and were created by Defendant with the intent of defrauding Plaintiff and tricking Plaintiff into paying the Disputed Cost which was not part of the parties' Contract, which exceeded the Engine Replacement Cost and which may never have actually been purchased by Defendant.



17. Upon Plaintiff s discovery of Defendant's breach of the Contract and Defendant's misrepresentations and deceit, Plaintiff demanded the return of the Truck. Despite demand, Defendant refused to relinquish possession of the Truck to the Plaintiff.



18. Upon information and belief, Defendant has breached the parties' Contract by failing and refusing to deliver the Truck to Plaintiff equipped with a new engine, by failing to fulfill the other terms and conditions of the Contract, by failing to deal with Plaintiff in good faith, and by misrepresenting material information to the Plaintiff.



19. Defendant made such misrepresentations with the intent to fraudulently induce Plaintiff

into the Contract and to cause Plaintiff to rely to his detriment, Plaintiff relied to his detriment upon such misrepresentations and deceit and Plaintiff has thereby been damaged.



20. Defendant's failure to return the Truck to Plaintiff, after Plaintiff demanded the return of the Truck, amounts to a conversion of Plaintiff s property, has deprived Plaintiff of the use of the Truck in its business and has caused Plaintiff to be damaged as a result of his inability to use the Truck.



21. Defendant fraudulently induced Plaintiff to make certain contractual promises to the buyer of Plaintiff s business. As a result of Defendant's breach of contract, fraud and deceit, Plaintiff cannot deliver one of the Kenworth Trucks as promised, and the buyer of Plaintiff s business has now made demand upon Plaintiff for $75,000.00.



22. Further, Defendant has served Plaintiff with written notice of intent to foreclose a purported possessory lien on the Truck pursuant to 42 O.S. §91 et seq.



23. Defendant's threats to utilize the Title 42 possessory lien statute to convert ownership of the Truck from Plaintiff to Defendant and the possibility that Defendant could tamper with, dispose of or conceal the Truck, could result in irreparable harm to Plaintiff for which the issuance ofa temporary injunction, pursuant to 12 O.S. 1381 et seq, barring Defendant from tampering with, concealing or transferring title to the Truck is warranted.

FIRST CAUSE OF ACTION

(Breach of Contract)



24. Plaintiff hereby incorporates by reference the foregoing paragraphs as it fully set forth

herein.



25. Plaintiff and Defendant entered into a Contract whereby Defendant agreed to install a new engine in the Truck for an agreed upon price.



26. Defendant have breached the Contract that it had with Plaintiff by failing and refusing

to deliver the Truck to Plaintiff equipped with a new engine, by failing to fulfill the other terms and

conditions of the Contract, by failing to deal with Plaintiff in good faith, and by misrepresenting material information to the Plaintiff.



27. Accordingly, Plaintiff requests that this Court grant him judgment against Defendant in an amount in excess of $75,000.00 plus interest, costs, attorney fees and such other relief that this Court deems just and equitable.



SECOND CAUSE OF ACTION



(Fraud)





28. Plaintiff hereby incorporates by reference the foregoing paragraphs as it fully set forth

herein.



29. Upon information and belief, Defendant misrepresented to Plaintiff that Defendant would deliver the Truck to the Plaintiff with a new engine for a sum certain and misrepresented information relevant to the repair of the Truck.



30. Defendant acted illegally, maliciously, and recklessly with the purpose of intentionally exploiting Plaintiff and causing Plaintiff to rely to his detriment on such misrepresentations.



31. Plaintiff relied to his detriment and was thereby damaged, including, but not limited to, the loss of the use of the Truck in Plaintiff's business and the inability to fulfill other contractual obligations for which demand has now been made upon Plaintiff.



32. Accordingly, Plaintiff requests that this Court grant him judgment for Fraud against Defendant in an amount in excess of $75,000.00, punitive damages in excess of $75,000.00 plus interest, costs, attorney fees and such other relief as this Court deems just and equitable.



THIRD CAUSE OF ACTION



(Deceit)





33. Plaintiff hereby incorporates by reference the foregoing paragraphs as it fully set forth

herein.



34. Upon information and belief, Defendant misrepresented to Plaintiff that it would

deliver to the Plaintiff the Truck with a new engine for a sum certain and misrepresented information relevant to the repair of the Truck.



35. Plaintiff relied to his detriment upon such deceit and Plaintiff has been damaged thereby.



36. Accordingly, Plaintiff requests that this Court grant him judgment for Deceit against Defendant in an amount in excess of $75,000.00, punitive damages in excess of $75,000.00 plus interest, costs, attorney fees and such other relief as this Court deems just and equitable.



FOURTH CAUSE OF ACTION



(Conversion)



37. Plaintiff hereby incorporates by reference the foregoing paragraphs as it fully set forth

herein.



38. That Defendant' failure to return the Truck to Plaintiff, after Plaintiff demanded the return of the Truck, amounts to a conversion of Plaintiff s property and has damaged Plaintiff.



39. Accordingly, Plaintiff requests that this Court grant him judgment for Conversion against Defendant in an amount in excess of $75,000.00, punitive damages in excess of $75,000.00 plus interest, costs, attorney fees and such other relief as this Court deems just and equitable.



FIFTH CAUSE OF ACTION



(Injunctive Relief)



40. Plaintiff hereby incorporates by reference the foregoing paragraphs as it fully set forth

herein.



41. Further, Defendant have served Plaintiff with written notice of intent to foreclose a purported possessory lien on the Truck pursuant to 42 O.S. §91 et seq.



42. Defendant' threats to utilize the Title 42 possessory lien statute to convert title to the Truck from Plaintiff to Defendant', and the possibility of Defendant tampering with or concealing the Truck, could result in irreparable harm to Plaintiff for which the issuance of an injunction, pursuant to 12 O.S. §1381 et seq, barring Defendant from tampering with, concealing or transferring title to the Truck is warranted.



43. Accordingly, Plaintiff requests that, upon application, this Court set this matter for hearing and issue a temporary injunction prohibiting Defendant from tampering with, disposing of, concealing or transferring title to the Truck until such time that this Court can adjudicate the issues presented in this lawsuit.





Defendant answered and counterclaimed claiming:



1. The proper name of the business who is the Defendant is ..J. Cone's Fleet Service," not "J. Cone's Fleet Services."



2. Barry W. Cone is not the owner of J. Cone's Fleet Service. Barry W. Con"" employed by J. Cone's Fleet Service. He does not do business as J. Cone's Fleet Service/Services. Barry Cone is not a proper party in this action nor is he personally liabl for any alleged actions or inactions of J. Cone's Fleet Service. l- •



3. DefendanL.;; are without information to admit or deny that Plaintiff is)t;ifsidGltl of

Tulsa County. Defendants therefore deny that contention and requests adequate prQA{.t;llcroot,



4. Defendant Barry Cone is not a resident of Tulsa County. He is a residciit.of Ci->

Rogers County.



5. J. Cone's Fleet Service has as its principal place of bu..;;iness, Wagoner County. not Tulsa County.



6. Defendants deny that Tulsa County is a place where the events in question in this lawsuit occurred. Defendants assert that the Distrkt Court of Tulsa County is an improper venue for this action. Wagoner County is the proper venue. 12 O.S. § 139; I 2 O.S.§142. This action should be transferred to Wagoner County and Defendants request such a transfer.



7. Service of process on J. Cone's Fleet Service ha.,;; to this pninl been insufficient because service was made 011 Ban·y Cone, who is not a proper party and who is not the owner of

J. Cone's Fleel Service. However, J. Cone's Fleet Service elects to wai ve service of process in order to have their claims and defense. in this matter addressed more expeditiously.



8. Defendanls deny Paragraph 4 of the Petition except that Defendants admit that Barry Cone, a,;, an authorized representative of J. Cone's Fleet Service, did agree with Plaintiff that he would replace an engine in Plaintiff's 2009 International Dura Star Truck.



9. Defendants deny Paragraphs5 and 6.



10. Regarding Paragraph 7, Defendants admit Barry Cone advised Plaintiff that a third party wa." interested in trading Plaintiff s truck for two other trucks. Defendants admit Plaintiff paid earnest money on that proposed transaction. Plaintiff and the third party dealt directly with one another and it is Defendants' understanding that the deal did not materialize. Plaintiff was refunded his earnest money. None of the facL-. alleged in Paragraph 7 give rise to any sort of valid claim for relief by Plaintiff against DefendanL.;i.



11. Regarding Paragraph 8, Defendants are without informalion sufficient to admit or deny the allegations. Defendants therefore deny the allegations. Further, becau.-se Defendants were not the decision-makers on whether any truck-trading agreement would be reached and because they made no promises on behalf of the third party negotiator, the contents of Paragraph 8 give rise to no valid claim for relief by Plaintiff against Defendants.



12. Defendants admit Paragraph 9.



13. Regarding Paragraph 10, Defendants admit that Plaintiff was submitted with an Invoice totaling $17,466.93. To explain, that invoice was for parts purchased by J. Cone's Fleet Service from Ranes Truck Parts, LLC. These were all parts used to repair Plaintif r s truck pursuant to the parties· agreement. As will be set forth inthe below counterclaim, these were not the only parts purchased by J. Cone's Fleet Service to repair Plaintiff's truck.



14. Also regarding Paragraph 11, Defendants deny making any knowingly false representations to Plaintiff of any kind. In regard to the allegation that they informed Plaintiff that parts were purchased from Swmnit Truck Group or Frontier International, that is nol the case. This has been adequately explained to Plaintiff, but he persists in misstating to the Court the nature of representations made by Defendants. Barry Cone presented Plaintiff with a quote, not an invoice from Frontier International Trucks, Inc. Because Frontier International did not have all of the parts in stock, Defendant chose to purchase the same parts from a vendor who had them instock, to wit, Ranes Truck Parts, LLC ("Ranes"), at a lower price, so he did so.



15. Defendants deny Paragraph 11.



16. Regarding. Paragraph 12, Defendants agree that Invoice #2 (to use Plaintiff's labeling system) was a quote, not an invoice. Defendants admit that the quote was altered. The alteration was the handwriuen portion on the quote. The alterations were placed on the quote by clerical error by Barry Cone. Barry Cone did not mean to represent that he purchased the parts from Frontier, just that J. Cone's Fleet Service had purchased the part and paid with a particular

check number. As stated inParagraph 14 above, Defendants did purchase those exact parts, but he purcha.,,;:ed them from Ranes. Defendants deny making "fraudulent representations. "



17. Defendants deny Paragraph 13.



18. Defendants have adequately responded to Paragraph 14. Defendants deny making misrepresentations to Plaintiff about where they bought truck parts. Defendants deny forgeuing ahout representations made to Plaintiff about where they obtained truck parts. Plaintiff was properly advised that the truck parts were purchased from Ranes. Plaintiff is telling his story about being misled on this point in hopes of avoiding paying for the parts although legal and equitable ground" would clearly dictate that he must pay for the part').



19. Defendants deny any portion of Paragraph 15 which is deemed to be incorrect hy reviewing and comparing said invoices. The documents speak for themselves.



20. Defendants deny Paragraph 16.



21. Defendants deny the portion of Paragraph 17 stating that Defendant breached a contract, misrepresented facts or deceived Plaintiff. Defendants admit the remaining portion of the Paragraph. Defendant is entitled to withhold possession of the truck because Plaintiff has wrongfully failed to pay for the truck partq purcha.:;cd by J. Cones Fleet Service and installed on the subject truck.



22. DefendanL.:; deny Paragraphs 18-20.



23. Defendants are without information necessary to verify the contentions by Plaintiff in his Paragraph 21 that some third party has made a demand on Plaintiff for $75,000. Defendants therefore deny that.statement Defendants deny all other statements in Paragraph 21. as well.



24. DefendanL-s admit Paragraph 22.



25. Defendants deny the facts suggested and claimed in Paragraph 23 and denies Defendant is entitled to injunctive relief. Under the circum.o:;tances, J. Cone's Fleet Service is. entitled lo a special lien on the vehicle to secure payment of parts it purchao:;cd and is entitled to foreclose the lien by selling the property after giving proper notice to Plaintiff.



26. Defendants deny the factual avermcnts and statements of law set forth in

Paragraphs 25-27 except Defendants admit that J. Cone's Fleet Service did make an agreement with Plaintiff to purchase necessary parts to repair Plaintirrs truck and lo provide the labor

necessary to install I.he parts. DefendanL"i also inform the cowt that J. Cone's Fleet Service provided Plaintiff with an e..:;timated cap or the cost of the project. The estimated cap was

$29,000.00, which is in fact less than the amount it wound up costing.



27. Defendants deny the factual avcrmcnts and statements of law set forth in Paragraphs 29-32, 34-36, 38-39 and 4lff43.





28. Unless a statement in the Petition is admitted herein, Defendants intent is to deny

the statement.



29. Paragr.:1.phs 24, 28, 33 and 40 refer to previous statements in the Petition by Plaintiff. To the same extent as those statements have been in this Answer, above, denied by Defendants. they are denied again.



30. DefendanL deny that Plaintiff is entWed to any relief on his Petition. Defendants further and specificall y deny Plaintiff is entitled to an attorney's fees award.



31. Defendants assert the following affirmative defenses: estoppel. fraud and waiver.



B. Counterclaim:



STATEMENT OF FACTS



COMES NOW Johnette Cone, d/b/a J. Cone's Fleet Service, and for her claims against Plaintiff, Josh Carnley, d/b/a Aim To Plea. e. she alleges and states:



1. Johnette Cone owns and operates J. Cone·s Fleet Service. It a business which provides mechanical services on trucks and automobiles. Barry Cone is the principal mechanic on staff. Barry Cone is the spouse of Johnette Cone and they live together in Rogers County, Oklahoma. During all times relevant to this action, actions of Barry Cone at issue were made in a representative capacity for J. Cone's Fleet Service.



2. Plaintiff purpons to be a resident of Tulsa County. He does maintain a business premises at an address on E. Admiral Place which is in Tulsa, County.



3. The eventc; giving rise to the counterclaims herein occurred in Wagoner County.



4. On or about May 26, 2015, Plaintiff caused his 2009 International Dura Star truck to be towed to J. Cone's Fleet Service in Catoosa, OK. Barry Cone ran a diagnostics operation revealing cata.c;trophic oil failure, that all bearings were frozen to the crankshaft and that the valve train was broken. The long block assembly needed to be completely replaced.



5. In June of 2015. Plaintiff. Josh Carnley presented to J. Cone's Fleet Service a quote from International that it would replal.-e the long block a..;.sembly for $29,908.83. Thie; quote did not include the costs of external parts, injectors and turbo a. sembly, all of which were likely necessary.



6. On or about June 11, 2015, J. Cone's Fleet Service provided a written quote to repair internal components which had suffered complete catastrophic failure. The quote wa.c; to replace such part for $29,000.00 or less. Josh Carnley signed a statement approving J. Cone's Fleet Service to proceed with the repair based on this estimate.



7. Plaintiff and Barry Cone, acting in a representative capacity for J. Cone's Fleet Service, had other communications wherein Defendant agreed to repair the truck and Plaintiff agreed to pay the costs of the required labor and parts.



8. The long block itself was eventually paid for by International but wali acquired by Defendants from Jasper Engines. It was received by Defendants in September of 2015. External engine parts were determined to be necessary. At the invitation of Defendants, Plaintiff came in to J. Cone's Fleet Service's business premises and viewed the long block and the other new parts.



9. On or about October 6, 2015, J. Cone's Fleet Service presented a parts bill to Plaintiff. Plaintiff indicated he would be in to pay it the next day.



10. On October 7. 2015, Plaintiff told Barry Cone that he wa.,;; making arrangement,;; with Plaintiff's banker to pay the parts bill. On that date, Plaintiff did not pay the parts bill and started being nomcsponsivc to Defendants' attempts to inquire about his intentions to pay.



11. On the morning of October 8, 2015. Plaintiff stated that he was going to come in and pay the parts bill before noon. He also requested the receipts provided by the parts vendors and explained chat his banker would want to see them. Defendants supplied Plaintiff with some parts receipts.



12. Based on infonnation and belief, Plaintiff fabricated the story about discussing a loan with his banker and that the banker would want to sec the vcndor·s.rcceipts.



13. On October 9, 2015, Plaintiff stated to Barry Cone that he would pay the amount requested only after the truck was fixed and running.



14. On October 12. 2015. Plaintiff stated he would he in to pay the parts bill that day before 5:00 p.m. He never showed and did not pay.



15. On October 13, 2015, Plaintiff re-stated and returned to the position he asserted for the first time on October 9th, that he would pay when the truck repairs were finished.



16. On October 13, 2015, Plaintiff accidently sent a text message to Barry Cone which appeared to be gloating and laughing about the prospect of having J. Cone's Fleet Service accept only half of the money necessary to cover the parts they purchased for Plain ti ff's truck repair. Based on information and belief. Plaintiff intended to send the text message to Plaintiff's business partner.



17. The truck repair was completed on or about October 20th, 2015. The truck is running. The repairs were successful.



18. The total amount paid by J. Cone's Fleet Service for necessary parts for Plaintiff's truck is $20.423.79. Not all of the part...; were indicated on the invoice auached as. Exhibit #1to PlaintifPs Petition.





19. Plaintiff has to this point not paid any money or other thing of value to

Defendants for truck parts.



FIRST CAUSE OF ACTION

(Breach of Contract)



· 20. For its first cause of action, Defendant J. Cone's Fleet Service a/k/a Johnette Cone, reasserts and incorporates here by this rererence the contents of Paragraphs 1-31 of the above Answer and Paragraphs 1-19 of the above Counterclaim.



21. Plaintiff and J. Cone's Fleet Service entered into a contract whereby J. Conc·s Fleet Service agreed to purchase parts necessary to repair Plaintiff s 2009 International Dura Star truck and agreed to install the parts, and, in exchange, Plaintiff would pay J. Cone's Fleet Service for the parts it purchased for said truck and its labor in installing the parts.



22. J. Cone's Fleet Service perfonned their end of the contract. Plaintiff, however, has failed to reimburse J. Cone's Fleet Service for the cost of parts necessary for the truck repair. This failure constitutes a breach of contract.



23. J. Cone's Fleet Service requests and is entitled to ajudgmcnt versus Plaintiff for compensatory damages in the amount of $20.423.79.



24. J. Cone's Fleet Service requests and is entitled to an additional award against Plaintiff for the reasonable attorney's fees expended in pursuit of the collection of money on their account with Plaintiff, pursuant to 12 O.S.§936.



Plaintiff answered as follows:



1. Plaintiff does not possess sufficient knowledge to admit or deny the allegations set forth in Paragraph 1 of the Counterclaims and, therefore, demands strict proof there of.



2. Plaintiff states that he is a resident of Tulsa County and admits the allegation{ t forth in

Paragraph 2 of the Counterclaims.



3. Plaintiff denies the allegations set forth in Paragraph 3 of the Countei@ms.'>J



4. Insofar as it relates to Paragraph 4 of the Counterclaims Plaintiff admits that e Truck was towed to Defendant's place of business, but cannot admit the remaining allegations set forth in paragraph 4 and demands strict proof thereof.



5. Insofar as it relates to Paragraph 5 of the Counterclaims Plaintiff admits receiving a quote but cannot admit the remaining allegations set forth in paragraph 5 and demands strict

proof thereof.



6. Insofar as it relates to Paragraph 6 of the Counterclaims Plaintiff admits receiving a quote from Defendant, admits signing the quote but cannot admit the remaining allegations set forth in paragraph 6 and demands strict proof thereof.



7. Insofar as it relates to Paragraph 7 of the Counterclaims, Plaintiff admits that Defendant and he had communications regarding the repairs to the Truck but denies the remaining allegations and demand strict proof of such allegations.



8. Plaintiff does not possess sufficient information to admit or deny the allegations set forth in Paragraph 8 of the Counterclaims and demands strict proof of such allegations.



9. Insofar as it relates to Paragraph 9 of the Counterclaims, Plaintiff admits that he received a bill from Defendant but denies the remaining allegations and demand strict proof of such allegations.



10. Plaintiff denies the allegations set forth in Paragraph 10 of the Counterclaims and demand strict proof of such allegations.



11. Plaintiff denies the allegations set forth in Paragraph 11 of the Counterclaims and demand strict proof of such allegations.



12. Plaintiff denies the allegations set forth in Paragraph 12 of the Counterclaims and demands strict proof of such allegations.



13. Plaintiff denies the allegations set forth in Paragraph 13 of the Counterclaims and demands strict proof of such allegations.



14. Plaintiff denies the allegations set forth in Paragraph 14 of the Counterclaims and demands strict proof of such allegations.



15. Plaintiff denies the allegations set forth in Paragraph 15 of the Counterclaims and demands strict proof of such allegations.



16. Plaintiff denies the allegations set forth in Paragraph 16 of the Counterclaims and demands strict proof of such allegations.



17. Plaintiff does not possess sufficient knowledge to admit or deny the allegations set forth in Paragraph 17 of

the Counterclaims and, therefore, demands strict proof of such allegations.



18. Plaintiff does not possess sufficient knowledge to admit or deny the allegations set forth in Paragraph 18 of

the Counterclaims and, therefore, demands strict proof of such allegations.



19. Plaintiff admits the allegations set forth in Paragraph 19 of the Counterclaims.



20. Plaintiff denies the allegations set forth in Paragraph 20 of the Counterclaims and demand strict proof of such allegations.



21. Plaintiff denies the allegations set forth in Paragraph 21 of the Counterclaims and demand strict proof of such allegations.



22. Plaintiff denies the allegations set forth in Paragraph 22 of the Counterclaims and demand strict proof of such allegations.



23. Plaintiff denies the allegations set forth in Paragraph 23 of the Counterclaims and demand strict proof of such allegations.



24. Plaintiff denies the allegations set forth in Paragraph 24 of the Counterclaims and demand strict proof of such allegations.



AFFIRMATIVE DEFENSES



By way of affirmative defenses, the Plaintiff states and alleges as follows:



1. Defendant is precluded from relief, in whole or in part, by the affirmative defenses of estoppel, laches and waiver.



2. Defendant is precluded from relief, in whole or in part, by the unclean hands, deception, misrepresentation, unfair advantage, fraud and the exercise of connivance.



3. Lack of consideration.



4. Defendant has failed to state a cause of action for which relief can be granted.



5. Plaintiff reserve the right to amend this Answer to include additional general or affirmative defenses upon the completion of discovery.

Settled on undisclosed terms and jointly dismissed with prejudice.