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e102107859 FILED IN DISTRICT COURT
OKLAHOMA COUNTY
IN THE DISTRICT COURT OF OKLAHOMA COUNTY
STATE OF OKLAHOMA MAR 1 8 2013
TIM ES
DERRYBERRY & NAIFEH, LLP COU, ERK
Plaintiff, 4
)
)
)
)
Vv. ) Case No. CS-2013-1044
)
NANCY PELLOW, an individual )
)
)
Defendant.
ANSWER AND COUNTERCLAIM
COMES NOW the Defendant and submits her Answer to Plaintiff's
Petition. Defendant denies allegations contained in each of
Paragraphs 1 through 19 of Plaintiff’s Petition and demands strict
proof thereof, and further as Answer to the Plaintiff’s Petition
states as follows:
1. Defendant is without sufficient knowledge or information
to form a belief as to the truth of the allegation contained in
Paragraph 1 of the Petition.
2. Defendant admits she is a former client of Donald Nevard
OBA #6640, but denies she is a client of Plaintiff and denies she
owes Plaintiff any money as alleged in Paragraph 2 of the Petition.
3. Defendant admits Plaintiff and Defendant reside within
Oklahoma County, State of Oklahoma, but denies all allegations of
indebtedness to Plaintiff as alleged in Paragraph 3 of the Petition.
4. Denied. Defendant denies the existence of an agreement
with Plaintiff for legal services, denies an open account oraccounts stated as alleged in Paragraph 4 of the Petition, and
demands strict proof.
5. Defendant denies all allegations of Paragraph 5 of the
Petition, and denies Plaintiff performed and satisfied any and all
conditions precedent to justify a claim of indebtedness in the
amount alleged in Plaintiff’s Petition.
6. Defendant admits payment to Donald Nevard OBA #6640 for
certain services, but denies the indebtedness or unpaid balance owed
to Plaintiff as alleged in Paragraph 6 of the Petition.
7. Defendant denies all allegations of Paragraph 7 of the
Petition, and denies any breach of obligation or duty to Plaintiff,
and denies any agreement to pay a set amount, invoice, or account
stated or to pay the amount of the alleged indebtedness.
8, Defendant denies all allegations in Paragraph 8 of the
Petition, denies the establishment of an open account with
Plaintiff, denies agreement to pay a stated amount or to pay any
account stated, denies the amount of indebtedness alleged owed to
Plaintiff as stated in Exhibit A attached to the Petition, but
admits that Plaintiff's Petition asserts a claim of indebtedness in
the amount of $9,423.84 for legal services and expenses.
9. Defendant denies all allegations in Paragraph 9 of the
Petition, and denies Plaintiff is entitled to costs, attorney fees,
pre-judgment and post-judgment interest on the amount of
indebtedness alleged in Plaintiff's Petition.10. Defendant denies she owes Plaintiff the outstanding
indebtedness alleged in Paragraph 10 of the Petition, and admits she
has disputed such claims, amounts, and demands.
11. Defendant denies all allegations of unjust enrichment in
Paragraph 11 of the Petition.
ANSWER TO PLAINTIFF’S COUNT I. OPEN ACCOUNT
12. Defendant re-alleges all her answers contained in
Paragraphs 1 through 11 of this Answer in response to Paragraph 12
of the Petition.
13. Denied. Defendant denies the alleged indebtedness on open
account in the amount of $9,423.84 is owed to Plaintiff, denies the
validity of the open account and value of services on the open
account, denies pre-judgment interest may be applied to such amount,
and denies Plaintiff's authority to collect on open account because
there is no agreement between Plaintiff and Defendant, the amount
claimed by Plaintiff is neither agreed nor of reasonable value, and
insufficiency and/or lack of services alleged rendered; and
Defendant demands strict proof thereof.
14. Denied.
ANSWER TO PLAINTIFF’S COUNT II. ACCOUNT STATED
15. Defendant re-alleges all her answers contained in
Paragraphs 1 through 14 of this Answer in response to Paragraph 15
of the Petition.16. Denied. Defendant denies the alleged indebtedness on
accounts stated in the amount of $9,423.84 is owed to Plaintiff,
denies the validity of accounts stated due to disputed amounts,
denies pre-judgment interest may be applied to such amount, and
denies Plaintiff's authority to collect under an account stated
because there igs no agreement between the Plaintiff and Defendant
that a certain indebtedness is correct, owed and due, and there is
no agreement to pay that indebtedness to Plaintiff.
17. Denied.
ANSWER TO PLAINTIFF'S COUNT III. UNJUST ENRICHMENT
18. Defendant re-alleges all her answers contained in
Paragraphs 1 through 17 of this Answer in response to Paragraph 18
of the Petition.
19. Defendant denies all allegations in Paragraph 19 of the
Petition. Defendant denies that Plaintiff has been damaged and
specifically denies Plaintiff has been damaged in the alleged amount
of $9,423.84, and further denies Defendant has been unjustly
enriched by her own conduct, acts or omissions as alleged in
Paragraph 19 of the Petition.
20. The prayer for relief is denied in all aspects.
AFFIRMATIVE DEFENSES
Defendant hereby asserts the following affirmative defenses:
21. Lack of jurisdiction over the subject matter.
22. Lack of capacity of Plaintiff te sue.23. Failure of consideration.
24. Failure to state a claim upon which relief can he
granted.
25. Unjust enrichment to Plaintiff through its claims
against Defendant.
26. Usury.
27. Lack of contract or agreement with Plaintiff.
28. Agreement for legal services with Plaintiff, if any,
lacked informed consent and mutuality, lacked necessary
disclosure of material terms and/or is unreasonable or
unconscionable under the circumstances.
29. Agreement with Plaintiff, if any, is ambiguous and/or
unenforceable.
30. Alleged agreement for attorney fees is contrary to
the Oklahoma Rules of Professional Conduct and/or Code of
Professional Responsibility, Rule 1.5.
31. Payment.
32. Set-off.
33. Breach of duty and/or agreement.
34, Extortionate and excessive attorney fees.
35. Lack of authority to recover expenses of litigation.
COUNTERCLAIM
Defendant asserts her counterclaims as follows:
FIRST CAUSE OF ACTION36. There existed exclusively between Defendant and Mr. Donald
Nevard an expressed oral contract with a clearly defined total fee
of $200.00 for legal services with no liability for expenses or
other charges against Defendant which agreement was performed and
completed before December 20, 2011, as an independent and complete
transaction with nothing left open for additional connected service.
37. However, without any further agreement between Defendant
and Mr. Nevard, and without Defendant’s agreement or consent,
Plaintiff billed Defendant $1,090.13 for those services.
38. The excess charges and expenses were and are disputed by
Defendant but remain unadjusted and unpaid.
39. Plaintiff will be unjustly enriched if paid or awarded any
excessive or unauthorized fees claimed in its Petition.
SECOND CAUSE OF ACTION
40. When there exists an expressed oral or written agreement
with sufficiently defined duties of the parties and fees to be a
complete independent contract, a claim on open account is
unauthorized, and further attorney fees may not be awarded under 12
O.S. §936.
41. There was an original expressed oral agreement between
Defendant and Mr. Donald Nevard, which did not include terms and
conditions for other persons or Plaintiff to charge fees against
Defendant.
42. The terms of the expressed oral agreement was breached.43. As a result of the breach of agreement, Defendant has been
damaged in a like amount to the claimed indebtedness of Plaintiff.
THIRD CAUSE OF ACTION
44. There is no provision in statute or in any agreement with
Plaintiff, or its representatives, authorizing assessment,
collection or award of miscellaneous expenses and office operations
expense such as postage, email messages, telephone calls, postage,
parking, mileage, courier and copying expense.
45. Such expenses are unauthorized without written agreement
and unenforceable by a court of law and should be stricken from
Plaintiff's claim.
FOURTH CAUSE OF ACTION
46. Defendant who is not an attorney has been representing
herself Pro Se in the probate court proceedings since December 2011,
and neither Plaintiff nor any representative of Plaintiff has
appeared on Defendant’s behalf or through curiosity at any time,
which is either failure to represent and/or lack of agreement to
represent in the case where the Trust Petition was filed.
47. Plaintiff is asserting claims for alleged probate services
and expenses which are disputed as being unauthorized billings and
claims and which are outside of the scope of any alleged agreement,
authority or duty to represent Defendant, and should be stricken.
FIFTH CAUSE OF ACTION
48. All agreements for legal services made between Defendantand any representative of Plaintiff were made without informed
consent, mutual consideration, and without full disclosure of
material facts, terms and conditions relative to a agreement for
legal services.
49. All such agreements should be declared void, unreasonable
and/or unconscionable and to be made in violation of the Oklahoma
Rules of Professional Conduct and Code of Professional
Responsibility, Rule 1.5.
50. When validity of a contract is questioned due to failure
of consideration, lack of consent or mutuality, induced by fraud or
failure to disclose material facts, terms and conditions for legal
services, it should not be used as the basis of collection on an
open account or account stated.
SIXTH CAUSE OF ACTION
51. Plaintiff's alleged claims on account stated must be
different from the original liability claim for indebtedness, and
must meet the essential elements of an account stated.
52. Plaintiff's alleged claim on account stated fails to meet
the elements for an account stated and should be stricken or
dismissed. i
SEVENTH CAUSE OF ACTION
53. Plaintiff has charged excessive and extortionate fees.
54. Plaintiff has used wasteful procedures to exploit hourly
charges and charge more for miscellaneous expenses and advances.55. Plaintiff has charged more than the customarily charged
rate for similar services and results.
56. Plaintiff has “churned fees” by permitting:
i a. charging for multiple lawyers on the same work,
b. charging attorney hourly rates for non-legal actions,
c. clocking in large blocks of attorney time which is
disproportionate to a non-legal task.
57. Plaintiff has failed to use best efforts under the implied
promise and duty to perform which increased billable hours but not
value or reasonableness to the services, such as by failing to:
a. name all beneficiaries on Petition causing a Motion
to add additional parties, an Amended Petition and Amended
Answer and reissuance of multiple summons through process
servers,
b. correctly style the Trust petition as: In RE: The
Barry R. Simms Revocable Trust, and instead created plaintiff
versus multiple beneficiary defendants who are only required
to be notified if the Successor Trustee is sued,
c. file the Trust case on the regular civil docket so
judicial supervision could have been sooner and construction of
the Trust and its amendments might have been determined without
waiting for a lengthy Probate action which has allowed the
Trust to be liquidated without the sought after judicial
supervision.d. file a Motion for appointment of guardian ad litem for
the three minor beneficiaries of the Trust for proper service
of process and notice.
e. to conduct any discovery after a lengthy period with
the case at issue, all to the detriment and damage of Defendant
and Defendant's interests in preserving the maximum value of
Trust assets.
Defendant reserves the right to amend and/or add additional
Answers, defenses and/or counterclaims at a later date as discovery
progresses in this matter.
WHEREFORE, premises considered, the Defendant prays that
Plaintiff take nothing by way of its claims and Petition, deny the
Attorney Lien or any additional fees, and grant the Defendant to
have and recover costs, expenses and a reasonable attorney fee, if
any, for defending this action, and for all other relief as this
Court may deem just for Defendant’s benefit.
Respectfully Submitted,
Behn
he Nancy low, Pro Se
Dated this LS. day of March, 2013 1717 Coventry lane
Oklahoma City, OK 73120
(405) 842-0160
10CERTIFICATE OF MAILING
This is to certify that on the /E day of March, 2013, a true
and correct copy of the above and foregoing was sent via U.S. First
Class Mail, postage prepaid, to the following:
Donald Nevard, Stephen McCaleb, and Rachel Shephard all in care
of Derryberry & Naifeh, LLP, 4800 North Lincoln Blvd, Oklahoma City,
OK 73105
Nancy
1717 Céventry lane
Oklahoma City, OK 73120
ii
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e102107859 FILED IN DISTRICT COURT OKLAHOMA COUNTY IN THE DISTRICT COURT OF OKLAHOMA COUNTY STATE OF OKLAHOMA MAR 1 8 2013 TIM ES DERRYBERRY & NAIFEH, LLP COU, ERK Plaintiff, 4 ) ) ) ) Vv. ) Case No. CS-2013-1044 ) NANCY PELLOW, an individual ) ) ) Defendant. ANSWER AND COUNTERCLAIM COMES NOW the Defendant and submits her Answer to Plaintiff's Petition. Defendant denies allegations contained in each of Paragraphs 1 through 19 of Plaintiff’s Petition and demands strict proof thereof, and further as Answer to the Plaintiff’s Petition states as follows: 1. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegation contained in Paragraph 1 of the Petition. 2. Defendant admits she is a former client of Donald Nevard OBA #6640, but denies she is a client of Plaintiff and denies she owes Plaintiff any money as alleged in Paragraph 2 of the Petition. 3. Defendant admits Plaintiff and Defendant reside within Oklahoma County, State of Oklahoma, but denies all allegations of indebtedness to Plaintiff as alleged in Paragraph 3 of the Petition. 4. Denied. Defendant denies the existence of an agreement with Plaintiff for legal services, denies an open account oraccounts stated as alleged in Paragraph 4 of the Petition, and demands strict proof. 5. Defendant denies all allegations of Paragraph 5 of the Petition, and denies Plaintiff performed and satisfied any and all conditions precedent to justify a claim of indebtedness in the amount alleged in Plaintiff’s Petition. 6. Defendant admits payment to Donald Nevard OBA #6640 for certain services, but denies the indebtedness or unpaid balance owed to Plaintiff as alleged in Paragraph 6 of the Petition. 7. Defendant denies all allegations of Paragraph 7 of the Petition, and denies any breach of obligation or duty to Plaintiff, and denies any agreement to pay a set amount, invoice, or account stated or to pay the amount of the alleged indebtedness. 8, Defendant denies all allegations in Paragraph 8 of the Petition, denies the establishment of an open account with Plaintiff, denies agreement to pay a stated amount or to pay any account stated, denies the amount of indebtedness alleged owed to Plaintiff as stated in Exhibit A attached to the Petition, but admits that Plaintiff's Petition asserts a claim of indebtedness in the amount of $9,423.84 for legal services and expenses. 9. Defendant denies all allegations in Paragraph 9 of the Petition, and denies Plaintiff is entitled to costs, attorney fees, pre-judgment and post-judgment interest on the amount of indebtedness alleged in Plaintiff's Petition.10. Defendant denies she owes Plaintiff the outstanding indebtedness alleged in Paragraph 10 of the Petition, and admits she has disputed such claims, amounts, and demands. 11. Defendant denies all allegations of unjust enrichment in Paragraph 11 of the Petition. ANSWER TO PLAINTIFF’S COUNT I. OPEN ACCOUNT 12. Defendant re-alleges all her answers contained in Paragraphs 1 through 11 of this Answer in response to Paragraph 12 of the Petition. 13. Denied. Defendant denies the alleged indebtedness on open account in the amount of $9,423.84 is owed to Plaintiff, denies the validity of the open account and value of services on the open account, denies pre-judgment interest may be applied to such amount, and denies Plaintiff's authority to collect on open account because there is no agreement between Plaintiff and Defendant, the amount claimed by Plaintiff is neither agreed nor of reasonable value, and insufficiency and/or lack of services alleged rendered; and Defendant demands strict proof thereof. 14. Denied. ANSWER TO PLAINTIFF’S COUNT II. ACCOUNT STATED 15. Defendant re-alleges all her answers contained in Paragraphs 1 through 14 of this Answer in response to Paragraph 15 of the Petition.16. Denied. Defendant denies the alleged indebtedness on accounts stated in the amount of $9,423.84 is owed to Plaintiff, denies the validity of accounts stated due to disputed amounts, denies pre-judgment interest may be applied to such amount, and denies Plaintiff's authority to collect under an account stated because there igs no agreement between the Plaintiff and Defendant that a certain indebtedness is correct, owed and due, and there is no agreement to pay that indebtedness to Plaintiff. 17. Denied. ANSWER TO PLAINTIFF'S COUNT III. UNJUST ENRICHMENT 18. Defendant re-alleges all her answers contained in Paragraphs 1 through 17 of this Answer in response to Paragraph 18 of the Petition. 19. Defendant denies all allegations in Paragraph 19 of the Petition. Defendant denies that Plaintiff has been damaged and specifically denies Plaintiff has been damaged in the alleged amount of $9,423.84, and further denies Defendant has been unjustly enriched by her own conduct, acts or omissions as alleged in Paragraph 19 of the Petition. 20. The prayer for relief is denied in all aspects. AFFIRMATIVE DEFENSES Defendant hereby asserts the following affirmative defenses: 21. Lack of jurisdiction over the subject matter. 22. Lack of capacity of Plaintiff te sue.23. Failure of consideration. 24. Failure to state a claim upon which relief can he granted. 25. Unjust enrichment to Plaintiff through its claims against Defendant. 26. Usury. 27. Lack of contract or agreement with Plaintiff. 28. Agreement for legal services with Plaintiff, if any, lacked informed consent and mutuality, lacked necessary disclosure of material terms and/or is unreasonable or unconscionable under the circumstances. 29. Agreement with Plaintiff, if any, is ambiguous and/or unenforceable. 30. Alleged agreement for attorney fees is contrary to the Oklahoma Rules of Professional Conduct and/or Code of Professional Responsibility, Rule 1.5. 31. Payment. 32. Set-off. 33. Breach of duty and/or agreement. 34, Extortionate and excessive attorney fees. 35. Lack of authority to recover expenses of litigation. COUNTERCLAIM Defendant asserts her counterclaims as follows: FIRST CAUSE OF ACTION36. There existed exclusively between Defendant and Mr. Donald Nevard an expressed oral contract with a clearly defined total fee of $200.00 for legal services with no liability for expenses or other charges against Defendant which agreement was performed and completed before December 20, 2011, as an independent and complete transaction with nothing left open for additional connected service. 37. However, without any further agreement between Defendant and Mr. Nevard, and without Defendant’s agreement or consent, Plaintiff billed Defendant $1,090.13 for those services. 38. The excess charges and expenses were and are disputed by Defendant but remain unadjusted and unpaid. 39. Plaintiff will be unjustly enriched if paid or awarded any excessive or unauthorized fees claimed in its Petition. SECOND CAUSE OF ACTION 40. When there exists an expressed oral or written agreement with sufficiently defined duties of the parties and fees to be a complete independent contract, a claim on open account is unauthorized, and further attorney fees may not be awarded under 12 O.S. §936. 41. There was an original expressed oral agreement between Defendant and Mr. Donald Nevard, which did not include terms and conditions for other persons or Plaintiff to charge fees against Defendant. 42. The terms of the expressed oral agreement was breached.43. As a result of the breach of agreement, Defendant has been damaged in a like amount to the claimed indebtedness of Plaintiff. THIRD CAUSE OF ACTION 44. There is no provision in statute or in any agreement with Plaintiff, or its representatives, authorizing assessment, collection or award of miscellaneous expenses and office operations expense such as postage, email messages, telephone calls, postage, parking, mileage, courier and copying expense. 45. Such expenses are unauthorized without written agreement and unenforceable by a court of law and should be stricken from Plaintiff's claim. FOURTH CAUSE OF ACTION 46. Defendant who is not an attorney has been representing herself Pro Se in the probate court proceedings since December 2011, and neither Plaintiff nor any representative of Plaintiff has appeared on Defendant’s behalf or through curiosity at any time, which is either failure to represent and/or lack of agreement to represent in the case where the Trust Petition was filed. 47. Plaintiff is asserting claims for alleged probate services and expenses which are disputed as being unauthorized billings and claims and which are outside of the scope of any alleged agreement, authority or duty to represent Defendant, and should be stricken. FIFTH CAUSE OF ACTION 48. All agreements for legal services made between Defendantand any representative of Plaintiff were made without informed consent, mutual consideration, and without full disclosure of material facts, terms and conditions relative to a agreement for legal services. 49. All such agreements should be declared void, unreasonable and/or unconscionable and to be made in violation of the Oklahoma Rules of Professional Conduct and Code of Professional Responsibility, Rule 1.5. 50. When validity of a contract is questioned due to failure of consideration, lack of consent or mutuality, induced by fraud or failure to disclose material facts, terms and conditions for legal services, it should not be used as the basis of collection on an open account or account stated. SIXTH CAUSE OF ACTION 51. Plaintiff's alleged claims on account stated must be different from the original liability claim for indebtedness, and must meet the essential elements of an account stated. 52. Plaintiff's alleged claim on account stated fails to meet the elements for an account stated and should be stricken or dismissed. i SEVENTH CAUSE OF ACTION 53. Plaintiff has charged excessive and extortionate fees. 54. Plaintiff has used wasteful procedures to exploit hourly charges and charge more for miscellaneous expenses and advances.55. Plaintiff has charged more than the customarily charged rate for similar services and results. 56. Plaintiff has “churned fees” by permitting: i a. charging for multiple lawyers on the same work, b. charging attorney hourly rates for non-legal actions, c. clocking in large blocks of attorney time which is disproportionate to a non-legal task. 57. Plaintiff has failed to use best efforts under the implied promise and duty to perform which increased billable hours but not value or reasonableness to the services, such as by failing to: a. name all beneficiaries on Petition causing a Motion to add additional parties, an Amended Petition and Amended Answer and reissuance of multiple summons through process servers, b. correctly style the Trust petition as: In RE: The Barry R. Simms Revocable Trust, and instead created plaintiff versus multiple beneficiary defendants who are only required to be notified if the Successor Trustee is sued, c. file the Trust case on the regular civil docket so judicial supervision could have been sooner and construction of the Trust and its amendments might have been determined without waiting for a lengthy Probate action which has allowed the Trust to be liquidated without the sought after judicial supervision.d. file a Motion for appointment of guardian ad litem for the three minor beneficiaries of the Trust for proper service of process and notice. e. to conduct any discovery after a lengthy period with the case at issue, all to the detriment and damage of Defendant and Defendant's interests in preserving the maximum value of Trust assets. Defendant reserves the right to amend and/or add additional Answers, defenses and/or counterclaims at a later date as discovery progresses in this matter. WHEREFORE, premises considered, the Defendant prays that Plaintiff take nothing by way of its claims and Petition, deny the Attorney Lien or any additional fees, and grant the Defendant to have and recover costs, expenses and a reasonable attorney fee, if any, for defending this action, and for all other relief as this Court may deem just for Defendant’s benefit. Respectfully Submitted, Behn he Nancy low, Pro Se Dated this LS. day of March, 2013 1717 Coventry lane Oklahoma City, OK 73120 (405) 842-0160 10CERTIFICATE OF MAILING This is to certify that on the /E day of March, 2013, a true and correct copy of the above and foregoing was sent via U.S. First Class Mail, postage prepaid, to the following: Donald Nevard, Stephen McCaleb, and Rachel Shephard all in care of Derryberry & Naifeh, LLP, 4800 North Lincoln Blvd, Oklahoma City, OK 73105 Nancy 1717 Céventry lane Oklahoma City, OK 73120 ii