Griever/Plaintiff's Position Statement/archive

Archive Page : This page is of an archival nature, and may contain information that is outdated or no longer relevant.

Overview

Plaintiff had originally planned to submit this document to the Defendants for response as an Interrogatory, but as the process stands now this is not expected to happen. It remains an accurate and more-or-less complete statement of the Plaintiff's position on the matter being officially pursued, although it does not bring up some side issues, such as equipment retained by the Defendants and royalties from the Xmas CD Project, which are not part of the official suit but which may come up in mediation.

Text

Please indicate your agreement or disagreement with the following statements. For each statement which you believe to be inaccurate, please explain how the statement should read in order to be correct, accurate, and true to the best of your knowledge.

VBZ.NET Sales and Merchandise

1. The Plaintiffs originally agreed to conduct sales of merchandise provided by Defendants via Plaintiffs' web site ("Plaintiffs' Online Store").
2. Plaintiffs' Online Store was initially on the world wide web at http://redhouse.com/store and later at http://vbz.net.
3. Plaintiffs' Online Store and its web site were to remain the sole property of Plaintiffs; no agreement was made to give ownership of said store, its web site, or any other component of said store, in part or in full, to Defendants or to anyone other than Plaintiffs.
4. The agreement originally made between Plaintiffs and Defendants ("Original Agreement") was based on the "Standard Artist's Agreement" terms which Plaintiffs had offered local musicians and other artists for selling their merchandise through Plaintiff's web site.
5. Terms of the Standard Artist's Agreement included the following:
   • Retail Agent (the Plaintiffs in this case), provided the venue for sales to take place, including displaying of merchandise on the world wide web, receiving customer orders, receiving and processing customer payments, and handling customer service issues such as returns
   • The Artist (in this case, the Defendants) provided merchandise at no cost to Retail Agent
   • Where Retail Agent was to act as Shipper for Artist's merchandise, the Artist provided quantities of said merchandise to Shipper before any sales took place
   • Where Artist was to act as Shipper for Artist's merchandise, Artist would ship merchandise directly to customers upon receipt of an order (usually within 36 hours) without waiting for payment from Retail Agent.
   • Retail Agent would list items for which there was remaining stock, i.e. in-stock items, as being for sale.
   • Retail Agent would remove listings for items where no further stock was in the possession of Shipper (which could be either Retail Agent or Artist, depending on who was acting as Shipper)
   • Upon each sale successfully concluded, Retail Agent credited Artist's account with 80% of the total sale (not including shipping/handling charges).
   • Retail Agent disbursed monies to Artists at reasonable intervals for merchandise sold under this agreement.
6. The Plaintiffs agreed to a variation in these terms in that Plaintiffs agreed to list items which were not actually in stock – i.e. not actually in the possession of Plaintiffs – with the understanding that Defendants would supply any items required to fill orders within a reasonable time after such orders were received.
7. "A reasonable time" was considered by both parties to be no more than two weeks.
8. The Defendants violated these terms by failing to provide merchandise within a reasonable time.
9. The Defendants violated these terms by failing to provide merchandise at all, instead depending on the Plaintiffs to purchase all merchandise for sale.
10. The Plaintiffs in fact purchased all merchandise ever sold through said online store, with the sole exceptions of (1) the items provided by local artists under the unaltered Standard Artist's Agreement, and (2) free samples provided by suppliers

Conclusions

1. Since no merchandise was purchased by Defendants:
   • All such merchandise currently in the possession of Defendants is property of the Plaintiff.
   • All such merchandise formerly in the possession of Defendants and which they have lost, sold via means other than the Plaintiffs' Online Store, or given away, should be considered stolen, as Defendants did not have permission to dispense with said items via any means other than Plaintiffs' Online Store.
2. As Defendants clearly violated the terms of any agreements under which they might have been entitled to a percentage of sales, they are not entitled to any such share.

Software Development

1. The software tools used to operate and maintain Plaintiffs' Online Store were developed entirely by Plaintiffs.
2. Plaintiffs and Defendants discussed the possibility of further developing said software tools for commercial sale ("Software Development Project"), in which case Defendants would have received a share of sales for acting as sales agents.
3. Plaintiff Nick indicated an interest in doing the design and programming work for the Software Development Project, but stated that it would be very slow going as long as Nick had to spend most of his time running the store.
4. Nick therefore could not and did not promise any delivery date for completion of said software.
5. Said software development did not come anywhere near to completion during the time Plaintiffs and Defendants were working together.
6. Due to the incomplete state of the software development, no sales of said software were made or attempted.

Conclusions

1. As there were no sales of said software, no monies are owed to Defendants for such sales.
2. As there was no agreement that Defendants should be paid for efforts toward any such sales, no monies are owed to Defendants for any such efforts.

Benz Rental

1. The Plaintiffs agreed to rent the Benz to Defendant Norma Lynne Griever starting at the rate of $100 per week. (This much does not seem to be in dispute; see "S vs G: Defendants' Admission of Facts to Plaintiffs" #18)
2. As it was known to both parties that there was considerable uncertainty about the balance of prior transactions between Plaintiffs and Defendants (that is, it was uncertain whether calculations would ultimately show a debt owed by Plaintiffs to Defendants or instead a debt owed by Defendants to Plaintiffs), it was agreed that the Benz rental would be kept as a separate matter from any other transactions unless otherwise explicitly and specifically agreed between the two parties – in other words, that any amounts due from either party to the other as a result of the storage rental agreement would not be presumed to be negated by any debt, pre-existing or otherwise, from the latter to the former, without mutual agreement to such.
3. The Plaintiffs agreed to allow the cost of necessary maintenance (specifically, an oil change and repairs) to be deducted from the rent due (see "S vs G: Defendants' Admission of Facts to Plaintiffs" #19)
4. The Plaintiffs agreed to consider changing the rental from weekly to per-mile
5. Defendants contend:
   • the per-week rental rate was for the months of November and December of 2001 only
   • the new per-mile rental basis was to be negotiated just after January 1, 2002
6. Plaintiffs contend:
   • No date was set for said negotiations
   • No such negotiations ever took place
   • The rental was to continue per-week until a new agreement was reached or Defendants terminated the agreement by returning the Benz
7. In 2002-3, the Plaintiffs asked, in several different emails, for details regarding retrieving the (disabled) Benz and its keys
8. Such details would have been helpful in the process of retrieving the Benz
9. Defendants never provided any such details

Conclusions

1. As Defendants agreed to pay $100 per week for rental on the Benz, with no time-limitation specified at the time of the agreement, and as no subsequent agreement was reached between Defendants and Plaintiff which would have altered or superceded these terms, and as the vehicle remained in the possession of the Defendants, and as the Defendants refused to respond to Plaintiff Nick's efforts to arrange retrieval of the vehicle, Defendants are liable for rental charges on the Benz during the time it was in their possession.
2. As Defendants refused to return the Benz upon request, and it was shown in court that they had no just cause for retaining it, they are additionally liable for court and legal costs incurred in the process of recovering it.
3. As Defendants did not return the Benz to Plaintiff as soon as it became non-functional, and – by leaving it in the open without running it or subjecting it to any kind of maintenance for well over a year – allowed it to deteriorate further to the point where major repairs were required in order to return it to working condition, they are also liable for the cost of such repairs.

Storage Rental

1. During the early months of 2002, Defendants invited Plaintiff Nick to use one of Defendants' three rented storage trailers, located at 1242 Hull Road, for storing Plaintiffs' personal and business belongings.
2. Said trailers were the property of Neff Rental of Athens ("Neff").
3. Plaintiff Nick had been considering renting storage at a commercial facility; Nick mentioned this to Defendant Lynne, who suggested that Nick instead use Defendants' rented trailers in order to save money.
4. Defendants initially offered said storage space at no charge to Plaintiffs.
5. Defendants initially told Plaintiff Nick to use Trailer #1 (the one nearest to the house).
6. Nick moved a few items into the designated trailer, and then moved no further items for some days.
7. Defendant Lynne confronted Plaintiff Nick on the porch at Red House (2895 Danielsville Road) claiming that Nick had agreed to finish moving his belongings into said trailer by a certain date so that Defendants could then move their items into the same trailer without worrying that they would later be blocked by more of Nick's items.
8. Defendants instructed Nick to move his remaining items into Trailer #3 (the one furthest from the house).
9. The items which Nick had moved into the other trailer became inaccessible for a time, due to obstruction by other items not belonging to Plaintiffs.
10. Plaintiff Nick later recovered these items. To the best knowledge of Defendants, all of Plaintiffs' belongings were recovered from that other trailer.
11. Defendants were at that time renting the three trailers from Neff at a combined cost of no more than $259.00 per month (see RDA checks #3087, #3202, # 3423, #3545, #3566).
12. Defendants later discontinued renting the other two trailers from Neff, at which point Neff's rental charge for the one Trailer was no more than $108.75 per month (see RDA checks #3586, #3248)
13. By October, 2002, Plaintiff(s) had finished moving their belongings into Trailer #3.
14. At that time, all vbz.net inventory then in existence was either in Trailer #3 or in Plaintiff's office at 1242 Hull Road.
15. In October, 2002, Defendants began charging Plaintiffs $70 per month for the non-merchandise portion of storage (approximately half the available space)
16. The remaining cost of storage in Trailer #3 was covered by Defendants, as the merchandise occupying that space was at that time presumed to be the property of Defendants, and storage of same was therefore presumed to be Defendants' responsibility.
17. By verbal agreement between Plaintiff Nick and Defendant Bubba, this $70 was to be paid in two parts: $40 was to be paid by cash or check, and $30 was to be deducted from the amount due for Defendants' rental of Plaintiff Nick's Mercedes Benz (see Benz Rental Accounting).
18. For the period of October 1, 2002, through March 31, 2003, Plaintiffs paid these charges in full and adjusted the Mercedes Benz accounting as agreed.
19. As it was known to both parties that there was considerable uncertainty about the balance of prior transactions between Plaintiffs and Defendants (that is, it was uncertain whether calculations would ultimately show a debt owed by Plaintiffs to Defendants or instead a debt owed by Defendants to Plaintiffs), it was agreed that the storage rental would be kept as a separate matter from any other transactions except as explicitly specified in the above arrangement (i.e. deducting $30 per month from the Benz Rental amount due) – in other words, that any amounts due from either party to the other as a result of the storage rental agreement would not be presumed to be negated by any debt, pre-existing or otherwise, from the latter to the former.
20. Around April of 2003, the Defendants moved the merchandise remaining in the trailer into their house at 1242 Hull Road.
21. At about this same time, also, Defendant Lynne expressed some confusion about the nature of the rental agreement between Plaintiffs and Defendants.
22. At that time, Plaintiff Nick verbally expressed concern to Defendant Bubba (Willard Dale Griever) that Defendant Lynne might pose a threat to the safety of the items which Plaintiffs were paying Defendants to store.
23. Defendant Bubba verbally promised Plaintiff Nick that no harm would come to Plaintiffs' belongings while they were in Defendants' care, and that he personally would accept responsibility for said items in storage and would let Plaintiff Nick know if any problems arose.
24. Defendants also raised the rental charge for Trailer #3 to $150 per month, to be paid in full by cash or check, beginning April 1, 2003.
25. The reason for the increase was that the usage of Trailer #3 was at that time no longer being shared between Plaintiffs (who were responsible for storage of the merchandise) and Defendants (who had personal belongings stored) and was at that time being used solely by Plaintiffs, aside from a few items of negligible importance left in Trailer #3 by Defendants (mostly donated clothes and computer components).
26. For the period of April 1, 2003, through November 30, 2003, Plaintiffs paid these charges in full as agreed.
27. On at least one occasion during this time, Defendants warned Plaintiffs that Neff was uncomfortable with the continued rental of the trailer, but did not make or request any changes to the rental agreement.
28. After one such warning from Defendants, Plaintiff asked Defendants for clarification of the situation, and requesting that Defendants send an eviction notice if Defendants did not feel able to continue renting said space.
29. Plaintiff stated that email would be an acceptable method for transmission of such an eviction notice.
30. Plaintiff sent Defendants suggested text for such an eviction notice.
31. On the morning of November 25, 2003, Plaintiff Nick arrived at 1242 Hull Road with a large U-Haul truck, and discovered that trailer #3 was no longer on the premises.
32. Defendant Lynne told Plaintiff Nick that Neff had removed Trailer #3 from the premises on an unspecified date. (Please state the date on which Trailer #3 was towed, if known; if the date is not known exactly, please give an indication of approximately when it was towed.)
33. The circumstances surrounding responsibility for the damage and loss of the contents of Trailer #3 are as follows:
    • At no time did Defendants state that Neff would be retrieving Trailer #3 without further warning.
    • At no time did Defendants indicate that Neff would be retrieving Trailer #3 on any particular date or within any particular time-frame.
    • At no time did Defendants state that they would not be able to continue renting the space inside Trailer #3 to Plaintiff.
    • At no time did Defendants indicate that they would no longer be able to accept responsibility for the items entrusted to them by way of the Trailer #3 rental agreement, or give any date after which they would no longer be able to accept such responsibility.
    • At no time did Defendants ask Plaintiffs to move their belongings from Trailer #3, or give any date by which they would require such a move to be made.
    • At no time did Defendants state that they could not continue to guarantee the safety of items which Plaintiffs were paying them to store.
    • At no time did Defendants indicate that Trailer #3 was not (or would soon be no longer) a safe place for Plaintiffs' belongings to be left in storage.
    • At no time did Defendants indicate that they would no longer be able to offer storage rental to Plaintiffs.
    • At no time did Defendants decline to accept payment from Plaintiffs for storage rental.
    • Defendants made no attempt to secure or reorganize items in the trailer so as to minimize damage while in transit.
    • Defendants made no attempt to inform Plaintiffs that trailer was expected to be removed without further warning.
    • Defendants made no attempt to prevent Neff from removing the trailer by informing Neff of the damage that would ensue and/or asking for a temporary extension so Plaintiffs could remove their belongings prior to Trailer #3's removal.
    • Defendants made no attempt to remove items from Trailer #3 and into a safer location prior to Trailer #3's removal.
    • After trailer was removed, Defendants made no attempt to inform Plaintiffs that trailer had been removed.
    • Defendants were aware that Neff would be disposing of the items remaining in Trailer #3 some days after it had been removed, and that all items would therefore be totally lost, or else made no effort to discover what Neff intended to do with the items in Trailer #3 after removing it.
    • Defendant Lynne was uncooperative when Plaintiff Nick asked her for Neff's phone number, thus delaying Nick's efforts to recover items from Trailer #3 (at its new location).
    • Defendants were entirely unapologetic for their lack of communication on this matter.
    • Defendants were entirely unapologetic for the destruction to Plaintiffs' property caused directly by their actions and inactions.
    • Defendants in general showed no concern whatsoever for the safety of the items Plaintiffs were paying them to store and protect.
    • Defendants allowed said items, which Plaintiffs were paying them to store and protect, to be removed from the agreed storage premises without Plaintiffs' permission and to be heavily damaged by said removal.
    • If not for happenstance (i.e. Plaintiff Nick's decision to drive down to Athens on November 24 and rent a moving truck on November 25, all without further consultation with the Defendants), all said items entrusted to Defendants would have been disposed of by Neff and irretrievably lost.
34. Defendants are therefore in breach of contract and should return all monies paid to them or paid to others on their behalf for rental of said storage.
35. Defendants are also responsible for the loss of items in the trailer which Plaintiff Nick did not have time or resources to retrieve, as well as for the extra expenses incurred during recovery of some items (i.e. hiring of a 3rd party to fetch a few more items just before the deadline, when Nick couldn't make it down to Athens in time).

Accounting / Debt

Please state any disagreements you may have with any of the following attached accountings:

--Totals-- | 1997 .. 1998 .. 1999 .. 2000 .. 2001 .. 2002 .. 2003 .. Benz .. Storage .. 2004 .. 2005

Please indicate specific transactions or calculations you believe to be in error or to have been omitted. For each transaction involved, please identify specifically by naming date, payer, payee, method of transaction (check, credit card, etc.) and check number where applicable.