Free Amended Document (NOT Motion/Complaint) - District Court of Arizona - Arizona

EXHIBIT J
Case 2:04-cv-00078-FJM Document 199-14 Filed 04/18/2008 Page 1 of 5

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Case 2:04-cv-00078-FJM

Document 199-14

Filed 04/18/2008

Page 2 of 5

1112 (2004); Citing Thunderbird Metallurgical, Inc. v. Ariz. Testing Lab., 5 Ariz. App. 48, 423 P.2d 124 (1967). As for whether or not Dr. Guenther is liable to the Appellees, it is statutory law in Arizona that a limited partner who "participates in the control of the business" is liable to those who transact business with the limited partnership and reasonably believe, "based on the limited partner's conduct, that the limited partner is a general partner." A.R.S. § 29-319. And, general partners in a limited partnership are liable jointly and severally for "everything chargeable to the partnership." Id. § 29-319(A). In addition, limited partners are liable for their own wrongful acts. Id. § 29-319(C). The evidence establishes that Dr. Guenther participated in the control of CLS and CMS. The evidence is such that a reasonable person would believe Dr. Guenther to be a general partner based on his actions of control at CLS and CMS as a general partner. The evidence establishes that Appellees had an agreement to represent Dr. Guenther and his partners. Appellees explained to Dr. Guenther and his partners that he was looking to them individually for payment, not the companies. Dr. Guenther agreed that Appellees would represent him and his partners on an hourly basis. Dr. Guenther and his partners agreed to pay for those services. Based on that promise, Appellees began to represent the Appellant and his partners. Appellees

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Case 2:04-cv-00078-FJM Document 199-14 Filed 04/18/2008 Page 3 of 5

submitted detailed invoices for services and at rates, which the Appellant and his partners paid up until October of 2001. Appellees continued to provide services until April of 2003. During that time, Dr. Guenther was active in the operations of the partnership's business and in the management and monitoring of the litigation in which Plaintiff Shimko was representing him and his partners. Dr. Guenther and each of his other partners benefited individually from the services provided by Appellees. Plaintiff Shimko and his firm provided $359,668 in services to Appellant and his partners for which he and his firm have not been paid. 2. Action on Account

Appellees' First Cause of Action alleged that Appellees and Appellant conducted a series of transactions for which a balance remains to be paid. Those transactions required Appellees to provide legal services for which Appellees would be paid. Appellees did provide the legal services, for some of which he was paid, but for some of which he was not. In Chittenden & Eastman Co. v. Leader Furniture Co., (1921) 23 Ariz. 93, 96, the Supreme Court of Arizona stated that an Action on an Account stated "sets forth the fact that the account was stated between the parties, that a certain sum was found due from one to the other, and that such sum is not yet paid." Id.; Citing

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Case 2:04-cv-00078-FJM Document 199-14 Filed 04/18/2008 Page 4 of 5

by the debtor to such portions of the debt as he prefers. Where no special application has been made, it is applied against the oldest items. Security Trust and
Savings Bank v. June, 38 Ariz. 513, 517, 1 P.2d 970, 971 (1931). This rule is

applicable to running accounts. Where there is a running account, the creditor may apply a payment to any item. General credits on open accounts stand as payments on the oldest items of such accounts unless some other application be clearly indicated. Hollywood Wholesale Electric Company v. Baskin, 146 Cal.App.2d 399, 402, 303 P.2d 1049, 1051 (1956). That is exactly what happened in this case, Appellees provided legal services and sent weekly invoices to Dr. Guenther and his partners. When Appellees received payments from Dr. Guenther and his partners, the payments were applied to the oldest items on the account. 3. Quantum Meruit/Unjust Enrichment

Plaintiff-Appellee's Fourth Cause of Action alleged that Appellees performed services for the Appellant and his partners and that when those services were rendered Appellees reasonably expected the Appellant and his partners to pay for those services. Appellant and his partners received the benefit of those services and have been unjustly enriched to the amount of $359,668 plus interest. It is the well established law of Arizona that in order to prevail upon a theory of unjust enrichment, a plaintiff must establish that, (1) plaintiff conferred a benefit upon the defendant; (2) defendant's benefit is at plaintiffs expense; and (3) it

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Case 2:04-cv-00078-FJM Document 199-14 Filed 04/18/2008 Page 5 of 5