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BPA EQUINE INVESTMENTS, L.L.C., et al vs. MICHAEL J. McCORMICK dba MTM Farm et al.

Johnson County

No. 09-CV-2253

United States District Court for the District of Kansas

PETITION FOR DAMAGES

COME NOW the plaintiffs and for their cause of action against the defendant.
state as follows:

GENERAL ALLEGATIONS
1. At all times material hereto, plaintiff BPA Equine Investments, L.L.C. has
been a Kansas limited liability company in good standing in Johnson County, Kansas.
2. At all times relevant. plaintiff, Barbara P. Allen has been an individual
residing in Johnson County, Kansas, and the primary owner of BPA Equine
Investments.
3. Defendant Michael J. McCormick is also known as Michael McCormick
and/or Mike McCormick, and at relevant times does business as Four M Farm or MTM
Farm. McCormick is a Texas citizen who has been doing business in the state of
Kansas and is subject to the jurisdiction of this court pursuant to K.S.A. 60-308(b) in that
he has transacted business within the state of Kansas; committed tortious acts within the state of
Kansas; entered into express or implied contracts with residents of the state
of Kansas; solicited business in the state of Kansas: and has supplied services in the
state of Kansas.
4. Venue is proper In this court pursuant to K.S.A. 60-605.
5. That on or about the month of January of 2003, Barbara P. Allen and/or
BPA Equine Investments, L.LC. purchased and became the owner of a registered
warmblood gelding horse named “O’Neill”, German-born on or about May 12. 1996.
6. “ONeill” was registered with the United States Equestrian Federation, Inc.
and was issued U.S. Equestrian # 4537059.
7. Upon the purchase of the said horse, the plaintiffs trained and showed the
horse with the defendant and others and boarded the horse at the defendant’s place of
business located in Flower Mound, Texas.
8. On or about the latter months of 2007, the plaintiffs and the defendant
agreed that the defendant would attempt to sell “O’Neill” for the plaintiffs. The parties
agreed that the defendant would receive a reasonable compensation for the sale.
9. The defendant had previously sold another horse, named “Arnie” for the
plaintiff upon the same terms and conditions. At that time, in October of 2002, the
defendant’s commission was an agreed sum of fifteen percent (15%).
10. The defendant acknowledged that he was the agent for the plaintiffs for
the sale of “O’Neill” and as such owed a duty of loyalty and a fiduciary duty to the
plaintiffs to provide a full, complete and accurate accounting for all monies, proceeds,
compensation or other benefits for the sale of “O’Neill”.
11. In February of 2009, the defendant took “O’Neill” to Ocala, Florida for the
sole purpose of selling “O’Neill”. Plaintiffs incurred and bore all expenses for “O’Neill”
while “O’Neill” was in Florida for the purposes of being sold, and in February of 2008
incurred expenses charged to them in the sum of Five Thousand Five Hundred Seventy
Five Dollars ($5,575.00), which was paid.
12. While in Florida In March of 2008, the defendant Informed the plaintiff that
“O’Neill” could be sold for approximately Ninety Thousand Dollars ($90,000.00).
Relying upon said representation and defendant’s experience and knowledge In the
horse business and specifically In regard to his personal knowledge of this particular
horse, plaintiffs accepted defendant’s recommendations and agreed that a sale of the
horse could occur pursuant to the contract between the parties.
13. In late March, 2008, defendant told the plaintiffs that “O’Neill” had been
sold. On or about March 30, 2008, plaintiff wired a Bill of Sale to the defendant with
instructions to place the Bill of Sale in the name of BPA Equine Investments, l.L.C.
14. On or about April 4, 2008. defendant wired the plaintiffs’ bank account the
sum of Eighty Thousand Dollars ($80,000.00) which represented the plaintiffs’ payment
tor “O’Neill” after the payment of commissions to the defendant.
15. On or about July of 2008, the plaintiffs received a telephone call from a
woman named Bette Klopacz. a New Jersey resident who informed the plaintiffs that
she had purchased “O’Neill” after seeing him in Wellington, Florida and inquired
concerning “O’Neill’s registration papers. At the request of Ms. Klopacz, registration
papers were sent to her.
16. On or about July of 2008. based upon a series of communications
between plaintiffs and Ms. Klopacz, plaintiffs learned that in fact “O’Neill’: had been sold
for the sum of One Hundred Fifty Flve Thousand Dollars ($155,000.00) paid to the
defendant and Fifteen Thousand Five Hundred Dollars ($15,500.00) for commissions to
Ms. Klopacz’ representative thereby the total payment being One Hundred Seventy
Thousand, Five Hundred Dollars ($170,500.00).
17. After acquiring said information. plaintiffs made repeated inquiries to the
defendant to obtain copies of the Bill of Sale for “O’Neill”, and on or about November 14,
2008 a Bill of Sale was presented under date of Aprl 20, 2008. Said Bill of Sale had
been substantially altered to suggest that the horse in fact was sold for One Hundred
Thousand Dollars ($100,000.00), when in fact the sale price was One Hundred Fifty
Five Thousand Dollars ($155,000.00).
18. During the entire period that the horse was in the possession of the
defendant and offered for sale, the plaintiffs paid any and all expenses related to the
care and maintenance of the horse including but not limited to monthly boarding,
veterinary costs, shoeing, shipping, day care, training. braiding, and horse show entry
fees.
19. Demand has been made upon the defendant to make a full and complete
accounting to the plaintiffs and to compensate plaintiffs for all sums held by the
defendant which have been retained by him inappropriately. Said demands have been
rejected.
COUNT I
COME NOW the plaintiffs and for their cause of action against the defendant,
allege and state as follows:
1. The General Allegations set forth above are incorporated by reference as
if set forth more fully in detail.
2. Defendant entered into a contract with the plaintiffs to sell- “O’Neill”.
Defendant represented that the proceeds to the plaintiffs was to be in the sum of Eighty
Thousand Dollars ($80,000.00).
3. The true and accurate sale price was One Hundred Fifty-Five Thousand
Dollars ($155,000.00).
4. The defendant breached his contract with the plaintiffs by failing to remit
all sums due and owing to the plaintiff from the sale of said horse.
5. Adequate and full consideration was made for the contract in question and
plaintiffs complied with all terms and conditions of the contract.
6. Plaintiffs have been denied the proceeds from the sale of the horse, along
with interest and other damages.
WHEREFORE, in Count I, plaintiffs pray that they be granted judgment against
the defendant in a sum in excess of Seventy-Five Thousand Dollars ($75,000.00),
interest, costs, and for such other and further relief as the Court deems fair, just and
equitable.
COUNT II
COME NOW the plaintiffs and for their cause of action in Count II against the
defendant, allege and state as follows:
1. The General Allegations set forth above and those allegations set forth in
Count I are incorporated herein as if set forth more fully in detail.
2. That the defendant by selling the horse for One Hundred Fifty-Five
Thousand Dollars ($155,000.00) and representing that the horse, in fact, was sold
wherein the plaintiffs netted the sum of Eighty Thousand Dollars ($80.000.00) did
Intentionally, willfully and wrongfully convert the assets from the sale of the horse to the
defendant.
3. That said conversion was intentional, willful and wrongful.
4. That the defendant intentionally avoided representing the true sale price to
the plaintiffs.
5. That the plaintiffs have been damaged thereby.
WHEREFORE, in Count II, plaintiffs pray that they be granted judgment against
the defendant in a sum in excess of Seventy-Five Thousand Dollars ($75,000.00).
interest, costs, and for such other and further relief as the Court deems fair, just and
equitable.
COUNT Ill
COME NOW the plaintiffs and for their cause of action in Count III against the
defendant, allege and state as follows:
1.The General Allegations set forth above and those allegations set forth in
Counts I and II are incorporated herein as if set forth more fully in detail.
2. That the plaintiffs are consumers as defined by K.S.A. 50·624(b) and the
transaction herein is a consumer transaction as defined by K.S.A. 50-624(c).
3. The defendant is a supplier as defined by K.S.A. 50-624(j) therefore, the
provisions of the Kansas Consumer Protection Act as set forth in K.S.A. 50-624 et seq.
apply herein.
4. That the defendant made various deceptive and false acts and statements
in regard to the sale of said horse and made unconscionable acts by taking advantage
of the plaintiffs and the plaintiffs’ inability to protect themselves in regard to the safety of
the said horse.
5. That the plaintiffs are entitled to pursue private remedies pursuant to
K.S.A. 50..634 which includes but is not limited to the assessment of damages,
declaratory judgment, and penalties.
6. That the penalties afforded hereby are in a sum not less than Twenty
Thousand Dollars ($20,000.00) per violation as set forth in K.S.A. 50-636(b).
7. Due to the violations of the Kansas Consumer Protection Act by the
defendant, plaintiffs have been damaged.
WHEREFORE. in Count Ill plaintiffs pray that they be granted judgment against
the defendant in a sum in excess of Seventy-Five Thousand Dollars ($75,000.00);
declaratory judgment that the defendant has violated the Kansas Consumer Protection
Act; a permanent restraining order against the defendant; penalties, court costs and
attorneys fees, and for such other and further relief as the Court deems fair, just and
equitable.
COUNT IV
COME NOW the plaintiffs and for their cause of action in Count IV against the
defendant, allege and state as follows:
1. The General Allegations set forth above and those allegations set forth in
Counts 1. II and III are incorporated herein as if set forth more fully in detail.
2. Defendant represent that at tile horse in question was sold for an amount
which netted the plaintiff the sum of Eighty Thousand Dollars ($80,000.00).
3. That in fact the horse in question was sold for One Hundred Fifty Five
Thousand Dollars ($165,000.00).
4. That even after the allowance of a fifteen percent (15%) commission, the
amounts paid to the plaintiffs was substantially less than the amounts actually received
and substantially less than what was consistent with the agreement between the
parties.
5. That the defendant intentionally misrepresented the facts to the plaintiffs
including but not limited to the following:a. That the safe of the horse was for a sum of Eighty Thousand
Dollars ($80,000.00) plus fifteen percent (15%) commission;
b. That the sale price for the horse was in fact accurate;
c. That the amounts tendered to the plaintiffs by deposit was the
amount that the plaintiffs were entitled to receive under the
agreement;
d. That all sums due and owing to the plaintiffs under the agreement
had been fully complied with and satisfied;
e. That defendant had acted in good faith with the plaintiffs in regard
to the sale of said horse;
f. That all sums legally due and owing to the plaintiffs had been
submitted;
g. That by disbursing the funds in regard to the sale of the horse, all
parties had been fully and adequately compensated pursuant to the
agreement.

6. That the representations made in regard to the sale of the horse
were false.
7. That the representations made by the defendant were known to be
false.
8. That the representations made by the defendant were made with
the intention of preventing the plaintiffs from knowing the true and accurate facts
in regard to the sale of the horse.
9. That the facts made known to or hidden from the plaintiffs were
done Intentionally in order to unjustifiably compensate the defendant at the
expense of the plaintiffs.
10. That as a result of these acts, the plaintiffs have suffered damages.
WHEREFORE, in Count IV, plaintiffs pray that they be granted judgment against
the defendant in a sum in excess of Seventy Five Thousand Dollars ($75,000.00),
attorneys fees, interests, costs, and for such other and further relief as the Court deems
fair, just and equitable.
ATIORNEYS FOR PLAINTIFFS BPA
EQUINE INVESTMENTS. L.L.C. and
BARBARA P ALLEN

 

View Complaint 

View Defendants’ Answer

 

July 2009

Case dismissed with prejudice after settlement