Griever/Plaintiff's Position Statement/archive

Staddon vs. Griever: Plaintiffs' Second Request for Admission of Facts

Status: draft proposal

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 was to remain the sole property of Plaintiffs; no agreement was made which gave ownership of said website, in part or in full, to Defendants.
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 The agreement originally made between Plaintiffs and Defendants (“Original Agreement”) was based on the “Standard Artist’s Agreement” terms which Plaintiffs had offered local musicians and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. 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)
3. The Plaintiffs agreed to consider changing the rental from weekly to per-mile
4. 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
5. 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
6. In 2002-3, the Plaintiffs asked, in several different emails, for details regarding retrieving the (disabled) Benz and its keys
7. Such details would have been helpful in the process of retrieving the Benz
8. 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 Nick on the front 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 had been moved into the other trailer became inaccessible for a time, but Nick later recovered them. As far as is known by Plaintiffs and Defendants, all of Plaintiffs' belongings were recovered from that other trailer.
10. 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).
11. 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)
12. By October, 2002, Plaintiff(s) had finished moving their belongings into Trailer #3.
13. At that time, all vbz.net inventory then in existence was either in Trailer #3 or in Plaintiff's office at 1242 Hull Road.
14. In October, 2002, Defendants began charging Plaintiffs $70 per month for the non-merchandise portion of storage (approximately half the available space), as the merchandise was then presumed to be the property of Defendants.
15. 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).
16. For the period of October 1, 2002, through March 31, 2003, The Plaintiffs paid these charges in full and adjusted the Mercedes Benz accounting as agreed.
17. Around April of 2003, the Defendants moved the merchandise remaining in the trailer into their house at 1242 Hull Road.
18. 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.
19. 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).
20. For the period of April 1, 2003, through November 30, 2003, Plaintiffs paid these charges in full as agreed.

(this section is still being edited)

Accounting / Debt

Please state any disagreements you may have with any of the following 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.