Free Objection - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

HARPER, CHRISTIAN, DICHTER & GRAIF, P.C.
2700 North Central Ave., Suite 1200 Phoenix, Arizona 85004 Telephone: (602) 792-1700 Facsimile: (602) 792-1710 Jay R. Graif, State Bar No. 017246 Jeffrey C. Matura, State Bar No. 019893 [email protected] [email protected] Attorneys for Defendants / Counterclaimants Kriegs, Inc., Mary Louise Krieg and Dean Krieg

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Ramada Franchise Systems, Inc., Plaintiff, OJBECTION TO ENTRY OF JUDGMENT vs. Kriegs, Inc., Dean Krieg and Mary Louise Krieg, husband and wife, Defendants. Case No.: 02-02088 PHX (HRH)

And Related Counterclaim.

Defendants Kriegs, Inc., Dean Krieg and Mary Louise Krieg, by and through counsel undersigned, hereby object to the entrance of the judgment lodged by Plaintiff Ramada Franchise Systems, Inc. in this matter. Defendants' objection is based on the following facts. On or about November 18, 2004, the parties settled this litigation and finalized a Settlement Agreement. The Settlement Agreement requires Defendants to make certain payments to Plaintiff beginning April 1, 2005 through October 1, 2007. Defendants have timely complied with each and every payment beginning April 1, 2005 through and including

Case 2:02-cv-02088-HRH

1 Document 115

Filed 04/11/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

March 1, 2006. The payment which Plaintiff claims to have caused a breach of the Settlement Agreement is that payment which was due on April 1, 2006. On March 8, 2006, Defendants had prepared the April 1, 2006 payment by their Accounts Payable person (a copy of which is attached hereto as Exhibit 1). This Accounts Payable person has routinely made the payments to Plaintiff in a proper and timely manner. On this particular occasion, the Accounts Payable person inadvertently hit the "3" button on her computer instead of the "6" button. The computer thereby printed a check in the amount of $3,000.00 instead of $6,000.00, which was the amount due and owing under the Settlement Agreement. This $3,000.00 check was timely mailed to Plaintiff and/or its counsel in the middle of March. It was subsequently negotiated by Plaintiff on or before March 27, 2006, four (4) days prior to its scheduled due date. At no time prior to or after the negotiation of the subject check did Plaintiff or its counsel notify Defendants or its counsel of this inadvertent error. Instead, Ramada simply filed the recently filed Stipulation for Entry of Judgment, Notice of Lodging Judgment and the other related documents. Defendants did not become aware of this inadvertent mistake until such time as the undersigned received the filed documents and contacted the Defendants to inquire about the problem. Dean Krieg forwarded the undersigned a copy of the cashed check (attached hereto as Exhibit 1) believing it to have been in the amount of $6,000.00. When the undersigned alerted Mr. Krieg to the error in the amount, it was the first time he was told of and realized the error. Immediately thereafter, he sent by overnight delivery a cashier's check in the amount of $3,000.00 to Plaintiff's counsel. Said cashier's check should have been received by Plaintiff's counsel on April 7, 2006. Defendants respectfully request that this Court not enter the lodged judgment as Defendants timely sent in the April 1, 2006 payment, inadvertently in the wrong amount. In fact, the April 1, 2006 payment was accepted and negotiated at least four (4) days prior to its scheduled due date. And, neither Plaintiff nor its counsel had the courtesy of notifying

Case 2:02-cv-02088-HRH

2 Document 115

Filed 04/11/2006

Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Defendants or its counsel of the obvious inadvertent error. Prior to this error, Defendants had timely and properly remitted the scheduled payments. Upon learning of the error, Defendants immediately rectified the situation with no harm caused to Plaintiff. Defendants therefore respectfully request that this Court refrain from entering judgment in favor of Plaintiff and against Defendants in the amount of $400,000.00 pursuant to the judgment lodged by Plaintiff. Dated this 11th day of April, 2006. HARPER, CHRISTIAN, DICHTER & GRAIF, P.C. By s/ Jay R. Graif Jay R. Graif Jeffrey C. Matura 2700 North Central Ave., Suite 1200 Phoenix, Arizona 85004 Attorneys for Defendants / Counterclaimants Kriegs, Inc. and Dean and Mary Louise Krieg

I hereby certify that on the 11th day of April, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing. A copy of the foregoing was forwarded this same date VIA FEDERAL EXPRESS directly to: The Honorable H. Russel Holland United States District Court Judge 222 West 7th Avenue ­ #4 Anchorage, AK 99513

s/ Susan Z. Lichtenberger

Case 2:02-cv-02088-HRH

3 Document 115

Filed 04/11/2006

Page 3 of 3