Free Statement - District Court of Arizona - Arizona

I LANG & BAKER, PLC
srs? VIA DE OOMMERCIO, SUITE 102 ;
2 SCOTTSDALE, ARIZONA 85258
TELEPHONE (480) 947-1911
3 KENT A. LANG, #010041
WILLIAM G. KLAIN, #015851
4 E
Attorneys for Defendants/Counterclaimant I
6 UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
8 QC CONSTRUCTION PRODUCTS, LLC, a ) N0. CV03-1997 PHX ROS
Delaware limited liability company, ) f
9 ) I
Plaintiff, ) ;
V. ) JOINT STATEMENT OF THE CASE
11 )
COHILL’S BUILDING SPECLALTIES, INC., )
12 and MICHAEL COHILL, ) I
) .
1 3 Defendants. ) ,
)
14 )
COHILL’S BUILDING SPECIALTIES, INC., an )
1.5 Arizona corporation, ) p
) I
16 Counter claimant, )
)
1'7 v.. )
K
18 QC CONSTRUCTION PRODUCTS, LLC, a ) g
Delaware limited liability company, )
19 )
Counterdefendant. )
20 ) 7
21 Plaintiff/Counterdefendant QC Construction Products, Inc., and Defendant/Counterclaimant
22 Cohill’s Building Specialties, Inc. and Defendant Timothy "Michael" Cohill, by and through their
23 respective counsel undersigned, hereby submit the following Joint Statement ofthe Case
24 On March 21, 2006, this Court entered its Opinion and Order ruling upon the parties’ respective
25 motions for summaryjudgment, which ruling granted summaryjudgment in favor ofDefendant/
26 Counterclainrant Cohill’s Building Specialties, Inc. (“Cohills") and Defendant Ii1nothy"Michael" Cohill
Case 2:03-cv—01997-ROS Document 134 Filed 06/05/2006 Page 1 of 3

1 ("Cohill") as t0 each claim asserted by Plaintiff QC Construction and as to the issue ofliability on
2 Counterclaimant’s breach of contract claim. ln light ofCourt’s Opinion and Order, this is a breach of
3 contract case wherein Counterclaimant CohiI1’s Building Specialties, Inc ("Cohills") seeks an award of
4 compensatory damages, including lost profits, it sustained as a direct result of Plaintiff]
5 Counterdefendant QC Construction Products, 1nc.’s ("QC(’s)") breach of a Letter of Agreement
6 between Cohills and QC. This Court has already determined that QC breached the Letter ofAgreement
7 by selling its products to third parties in Arizona in violation ofCohi1l’s right to exclusively distribute -
8 QC’s products in Arizona.
9 On or about October 27, 1998, QC and Cohills entered into a Letter ofAgreement (the
I0 "Agreement”) which, in part, provided that QC "shal1 provide exclusive support and material sales to
11 Cohills toward developing the market for Bayferrox synthetic iron oxides, BAYFERROX by [QC] and
12 the [QC] concrete coloring systems line ofproducts throughout the territory ofthe state ofArizona "
13 The term of Agreement commenced November 1, 1998 and was to continue for a period often years
14 thereafter. Commencing in 1998 and continuing through 2002, QC sold product directly to third parties
15 in Arizona. Cohills maintains, and this Court has found, that such sales by QC constituted breaches of
16 the Agreement by QC, and permitted Cohills to treat the Agreement as terminated. On or about,
17 February 25, 2003, Cohills commenced purchasing product hom non—party Bayer Corp. and treated the
18 Agreement as terminated as of such time.
19 QC maintains that its sales to third parties in Arizona between 1998 and 2002 were known by
20 and consented to by Cohills, and that Cohills nevertheless would not have been able to make such sales
21 directly to the purchasers involved. With the exception of two specific sales transactions, Cohills denies
22 that it was aware of or consented to QC’s sales to third parties in Arizona during the term ofthe
23 Agreement. Cohills furthermore maintains that, in light of its exclusive right to sell QC’s product in
24 Arizona under the Agreement and prior sales to Border Products Corp., one ofthe third party buyers
25 involved, Cohills itselfwould have been able to make the sales that QC did to the various third party
26 buyers in Arizona.
Case 2:03-cv—01997-ROS Document 134 Filed 06/05/2006 Page 2 of 3

1 The limited issues to be tried in this action are the amount of Cohills’ damages caused by QC’s
2 breached ofthe Agreement, and the amount oi attorneys’ fees and costs, if any, to be awarded to
3 Cohills. f
4 DATED this 5 day of May, 2006
5 LANG & BAKER, PLC
6
7 ent A. Lang
William G. Klain Q
8 6902 East First Street, Suite 100
Scottsdale, Arizona 85251 Q
9 (480)947—1 91 1
Attorneys for Defendants/Counterclaimant §
10 i
11 MOTSCI-IIEDLER MICHAELIDES & WISHON LLP
13 By gg./{za/» Q- 45%/ éf Emzrg gem
Russell K. Ryan, Esquire
14 1690 West Shaw Avenue; Suite 200
Fresno, California 93711
15 Attorneys for Plaintiff/Counterdefendant
16 Original of e foregoing
tiled this_ day of f
117 June, 2006, with:
18 United States District Court
For the District of Arizona
19 Y
Copy ofthe f` egoing
20 mailed thiskfyglg; day
of Tune, 2006, to:
21
Honorable Roslyn O. Silver 5
22 United States District Court A
For the District of Arizona j
23 401 West Washington
Phoenix, Arizona 85003
24 ~
25 By.
26 L:\CohiIls\QC\Plcadings\Join1 Statement of Case wpd
3 j
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