Pulliam v. Alfa Insurance Company

COMPLAINT TO ENFORCE CONTRACT AND FOR INTERPLEADER

IN THE CHANCERY COURT OF COUNTY, MISSISSIPPI

V. NO.

COMES NOW, , and , by and through counsel, and files this their Complaint to enforce a contract and for interpleader, and in support thereof would state the following, to-wit:

PARTIES:

1. The Plaintiff, (hereinafter referred to as “”), is an adult resident citizen of the Judicial District of County, Mississippi residing at , , Mississippi . The Plaintiff, (hereinafter referred to as “”) is a Mississippi corporation whose principal place of business in the Judicial District of County, Mississippi and whose agent for service of process is .

2. The Defendant, (hereinafter referred to as “”) is an adult resident citizen of County, Mississippi residing at , , Mississippi .

The Defendant, (hereinafter referred to as “”), is a Mississippi corporation that has its principal place of business in County, Mississippi, and whose agent for service of process is . , Mississippi may be served as agent for the corporation at , Mississippi.

3. The Defendant, , (hereinafter referred to as “”) is an adult resident citizen of County, Mississippi who may be served with process of this court at , Mississippi.

The Defendant, , is joined in this action as a necessary party in as much as he/she individually executed one of the contracts sought to be enforced.

4. The Defendant, , (hereinafter referred to as ""), is a Mississippi banking corporation whose principal place of business is located in County, Mississippi. The Defendant may be served by serving a corporate officer of said bank.

5. The Defendant, Mississippi State Tax Commission, (hereinafter referred to as “Tax Commission”), is a division of the state of Mississippi, and may be served with process of this Court by serving , , Mississippi.

6. The Defendant, , is a Mississippi banking corporation that has its principal place of business located in County, Mississippi and may be served with process of this court by serving an officer of the corporation.

7. The Defendant, , (hereinafter referred to as “VCC”), is a foreign corporation that may be served with process of this Court by serving its registered agent, , , , .

JURISDICTION AND VENUE

8. This court has subject-matter jurisdiction of this action in as much as this action requires this court to enforce and determined the rights of the parties relative to a contract for the purchase of personal property. This Court is the proper venue for this action in as much as the contract that the Plaintiff seeks to have enforced was executed in County, Mississippi.

FACTS

9. On , 20, , , and entered into a contract for the purchase of certain assets of , including but not limited to the rights to a automobile dealership in , Mississippi, and assorted personal items located at the dealership site. This contract, (hereinafter referred to as “the Contract”), was entitled “Asset Purchase Agreement” and was executed by . A copy of this contract is attached hereto and made a part hereof as Exhibit “A.”

10. The contract entered into on by stated in part that would purchase the rights to the dealership and other personal items listed in Exhibit “A” of the Contract for the sum of $. As required by the Contract, deposited the sum of $ as earnest money into the escrow account of .

11. In addition to the sale price stated in the contract, agreed to pay monthly rent on the leased real property directly to the landlord, and monthly rent on the equipment to be purchased during the time that he/she utilized the property until the transfer of the dealership was approved by . Further, , , and entered into a Commercial Lease and Operating Agreement, (hereinafter referred to as “the Operating Agreement”), evidencing their agreement and outlining the obligations of the parties. A copy of this Operating Agreement is attached hereto and made a part hereof as Exhibit “B".

12. The Operating Agreement provided that would take possession of the premises and the personal property listed in both the Contract and the Operating Agreement from the date of execution until the time approved the sale to .

13. Pursuant to Section 7.4 of the Contract and the Operating Agreement were executed contemporaneously, and were intended to operate as the sole agreements between the parties for the sale and operation of the dealership in , Mississippi.

14. During the time prior to approval by , paid monthly rent on the real property, made improvements to the real property, removed trash and debris from the real property, relocated and redesigned the various service areas, purchased advertising, and operated an used automobile dealership under the name of . Additionally, owed monthly rent to for the use of the personal property located on the premises and listed in the Contract and Operating Agreement.

Through , 20, the amount of monthly rent due to , , and their creditors is $. has now paid this sum into the registry of this Court as part of the funds interplead.

15. On or about , 20, the Division of approved for the purchase of the dealership in , Mississippi. As part of this approval process, was provided with the Contract and Operating Agreement executed by the parties. Additionally, executed certain documents to releasing all claims to the dealership in , Mississippi. A copy of these documents executed by and for are attached hereto and made a part hereof as Exhibits "C-1" through “C-4"

16. Subsequently, caused to be prepared a closing statement itemizing the division of monies due under the Contract and Operating Agreement. A copy of this closing statement is attached hereto and made a part hereof as Exhibit "D".

17. The closing statement submitted by to this Court, and to the parties for approval is divided into a Buyer's transaction, and the Seller's transaction. The Buyer's transaction sheet itemizes the gross amount due from . The gross sales price is $. The gross amount of equipment rent due is $. The total gross amount due from is $. From the gross amount due, is entitled to deduct the sum of $ for warranty work performed by after taking over the dealership. This amount cannot be paid by directly to because the work was done before received his/her identification number. will pay this amount directly to creditor, , due to its lien on warranty funds. is entitled to deduct the sum of $ for the personal account of . Additionally, is entitled to deduct the sum of $. This sum represents the account of . mistakenly paid for work done by in the amount of $. After being put on notice of this error, paid the balance of this account to with a check made payable to in the amount of $. is entitled to a full credit and upon receiving same will deliver the check of to whomever this Court directs. A copy of the check received by from is attached hereto and made a part hereof as Exhibit "K". A copy of the check of made payable to , but delivered to is attached hereto and made a part hereof as Exhibit "L".

18. After making deductions, the total amount due from is $. A check in this amount has been tendered to the Clerk of this Court with the direction for her to deposit same into the registry of this Court. A copy of this check is attached hereto and made a part hereof as Exhibit "N".

19. The Seller's transaction sheet itemizes the amount due . The sales price is $. The monthly rent on equipment is $. The total gross amount due the Seller, , is $. From this total gross amount of $, the following deductions must be made: $ representing the warranty work to be received by and its creditor, , by ; $ for the account of ; and $ for the account pursuant to the setoff provisions contained in the Contract. The total deductions from the gross amount due is $.

20. After applying the deductions to the gross amount due to Seller, the net amount due to Seller and its creditors is $. From the net amount due to Seller, the sum of $ should either be paid to , or to the Tax Commission depending upon the Court's determination of their lien rights. The remaining sum of $ should be divided equally, $ each, between and either or Tax Commission. After having made the appropriate payments to creditors, , and should receive zero. Additionally, should receive zero. was joined into this action in an abundance of caution and because they had been party to the federal court action.

21. In order to obtain releases and satisfy the liens of the creditors of , , and , each creditor claiming or purporting to have a lien on the proceeds of the sale was listed on the closing statement. A copy of the lien evidencing the claim of the Tax Commission is attached hereto and made a part hereof as Exhibit "E". A copy of the lien evidencing the claim of is attached hereto and made a part hereof as Exhibit "F". A copy of the lien evidencing the lien of is attached hereto and made a part hereof as Exhibit "G". And, a copy of the lien evidencing the lien of is attached hereto and made a part hereof as Exhibit "H".

22. In addition to the liens of the respective creditors, all of the creditors named herein except for the Tax Commission joined into an order in the United States District Court for the District of Mississippi that purports to state the rights of the individual creditors. However, the Tax Commission was not made a party to this action, and is, in Plaintiff's belief, not bound by said Order. A copy of this Order and its accompanying documents are attached hereto and made a part hereof as Exhibit "I".

The federal court order specifies the claims of the creditors joined therein; however, the interest of the Tax Commission are in conflict with this order. Thus, in order for to obtain releases of the property purchased by him/her, this Court must determine the rights of , and their creditors.

24. has been ready, willing and able to consummate this transaction since , 20. However, due to the claims of the creditors of , , and , and ’s continued attempts to re-negotiate the agreement between the parties, has not been able to obtain all of the necessary signatures and pay the sums due of him/her.

25. has flow submitted the closing statement for approval to the creditors of and that are joined in this action. Each creditor has agreed to the closing statement with respect to the amount of money available for disbursement. A copy of a letter from , Attorney for the Mississippi State Tax Commission evidencing the Tax Commission's approval is attached hereto and made a part hereof as Exhibit "0". However, , and have refused to execute same.

26. All matters necessary for the transfer of the dealership in , Mississippi has been executed by the parties with the exception of a Bill of Sale evidencing the transfer of ownership, an indemnification agreement from and its shareholders pursuant to Section 1.4(e) of the Contract, evidence of the corporate good standing of , copies of corporate minutes and resolutions authorizing the sale of assets and execution of the documents, and the closing statement evidencing the division of the sale proceeds. A copy of the proposed Bill of Sale and accompanying Affidavit of Title is attached hereto and made a part hereof as Exhibit "J". A copy of the Indemnification Agreement is attached hereto and made a part hereof as Exhibit "M".

27. Pursuant to Section 9.4 of the Contract, the Contract and the Operating Agreement constitute the entire agreement between the parties. There are no amendments or modifications not contained in the Contract or Operating Agreement.

28. Pursuant to Section 7.1 of the Contract, breach of any provision of the Contract constitutes breach of contract. The Seller has breached the Contract in many substantial ways. The Sellers breach of contract includes but is not limited to the following: Seller failed to maintain proper insurance pursuant to Article 6, Sections 6.1 through 6.3, inclusive of the Contract; the Seller has failed to comply with Section 5.1 of the Contract regarding non-competition in as much as Seller has actively engaged in the business of selling used automobiles; pursuant to Section 3.8 of the Contract, the Seller has breached its warranty that all taxes due all federal, state, and local tax authorities have been paid as evidenced by the lien filed by the Tax Commission; pursuant to Section 3.4, the Seller is in breach of contract regarding the warranty of title to the items of personal property listed in Exhibit "A" of the Contract in as much as it did not own several items that are the property of or ; and further, if the claims of prevail, the Seller will be in breach of the warranty of title provisions of the contract because of the ownership interest of another entity controlled by in the items listed on Exhibit "A" of the Contract.

29. Pursuant to Sections 1.3 and 7.2, the non-breaching party to the Contract is entitled to specific performance of the Contract. Further, pursuant to Section 7.3, the non-breaching party is entitled to recover all cost, attorney's fees and damages from the breaching party. Due to their actions, , and are in breach of contract. At all times, has been ready, willing and able to perform under the terms of the Contract and Operating Agreement. Any failure of to pay or perform under these agreements has been as a direct result of the efforts of , , or their creditors.

WHEREFORE, PREMISES CONSIDERED

the Plaintiff, , requests this Court to provide the following relief, to-wit:

(1) Enter an appropriate Order of this Court directing all Defendants to execute the closing documents necessary to enforce the Contract between the parties and releasing the Plaintiff from all obligations under the Contract; and

(2) Enter an appropriate Order of this Court determining the rights of the respective creditors to the settlement funds; and

(3) Enter an appropriate Judgment of this Court directing the Clerk of this Court to disburse the funds interplead by the Plaintiff and held in the registry of this Court based on the findings of this Court; and

(4) Enter an appropriate Order of this Court awarding the Plaintiff a sum representing the cost, damages, and attorney's fees incurred by the Plaintiff as a result of the Defendants failure to perform their respective obligations under the Contract; and

(5) Grant such other relief, general or specific, as this Court may deem appropriate.