warden second amended complaint against rathbun realty for breach of contract

8/7/2019 WARDEN SECOND AMENDED COMPLAINT AGAINST RATHBUN REALTY FOR BREACH OF CONTRACT

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Roy Warden11015 W. Prince Road2Suite 131-1823Tucson, Arizona [email protected]

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IN THE SUPERIOR COURT OF THE STATE OF ARIZONA7

IN AND FOR THE COUNTY OF PIMA89

ROY WARDEN,Plaintiff, IN FORMAPAUPERIS

Vs

SUZANNE DUGAN, CASSANDRA KING,BETTE GLOVER, RATHBUN REALTY,

INC. and DOES 1-10

Defendants.

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Case No. C20095747

SECOND AMENDED COMPLAINTFOR COMPENSATORY AND EXEM-PLARY DAMAGES FOR BREACHOF ORAL CONTRACT / PROMISE /PROMISSORY ESTOPPEL

THE HONORABLE STEPHEN VILLA-RREAL

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COMES NOW ROY WARDEN, Plaintiff in the above entitled action, with his11

Second Amended Complaint for Damages against the Defendants, named and unnamed12

above, and as grounds therefore alleges:13

I. INTRODUCTION14

1. This action for promissory estoppel arises out of breach of an oral contract /15promise Defendants made to Plaintiff on or about July 26, 2006. Plaintiff, who16

acted in reliance upon Defendants promise, contends the doctrine of promissory17

estoppel, as set forth in Arizona law1, binds the parties to their agreement, and18

that all Plaintiffs damages alleged herein arise out of Defendants failure to honor19

their promise / oral contract..20

II. JURISDICTION & VENUE21

2. This court has jurisdiction over this action under Article VI 14 of the Arizona22Constitution as the amount in controversy exceeds $10,000 (ten thousand dollars).23

1 See paragraphs 45-48.


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Venue is proper in Pima County, as all of the acts complained of occurred in Pima1

County Arizona.2

III. REQUEST FOR JURY TRIAL3

3. Pursuant to Rule 38(a) of the Rules of Civil Procedure, Plaintiff requests a trial by4jury.5

IV. IDENTITY OF THE PARTIES6

4. Plaintiff Roy Warden is a citizen of the United States, and was a resident of Pima7County Arizona at all times relevant to this complaint.8

5. Defendant Suzanne Dugan, residing at 4602 E. Glenn Street, Tucson Arizona, is9a former landlord of Plaintiff Roy Warden, is believed to be a citizen of the10

United States and was a resident of Pima County Arizona at all times relevant to11

this complaint.12

6. Defendant Cassandra King, employed by Defendant Rathbun Realty, Inc. is13believed to be a citizen of the United States and a resident of Pima County at all14

times relevant to this complaint.15

7. Defendant Bette Glover, employed by Defendant Rathbun Realty, Inc. is16believed to be a citizen of the United States and a resident of Pima County at all17

times relevant to this complaint.18

8. Defendant Rathbun Realty, Inc., an Arizona corporation with offices located at197447 E. 22nd Street, Tucson Arizona, was employed by, and acted as, Agent for20

Defendant Suzanne Dugan at all times relevant to this complaint.21

9. Does 1-10 are believed to be Rathbun Realty, Inc. employees, Tucson City22employees, Pima County employees, Arizona State employees, and others, who23

advised and/or assisted Defendants in the commission of the unlawful act which24

is the subject of this lawsuit.25

V. FACTS AND ALLEGATIONS26

10. On July 26, 2006 at approximately 10:30 am, after a series of acrimonious Special27Detainer Actions initiated by all Defendants, Plaintiff was served a Writ of28

Restitution which required him to immediately depart his residence, located at29

4602 E. Glenn Street, Tucson Arizona 85712.30


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11. Three Rathbun employees were present when the Writ was served, including1Cris, Matt, and Casey, a Rathbun property manager believed to be named2

Rathbun Defendant Cassandra King, as clearly set forth upon the Writ.3

12. Immediately upon exiting the premises Plaintiff exercised his right to clean up,4pack, and move his personal belongings which were still located within his former5

residence.6

13. The Rathbun employees, who had begun changing the locks, told Plaintiff they7could not delegate a property manager that day to supervise Plaintiff while he8

exercised his right to pack his belongings, move out and clean up.9

14. After more discussion Plaintiff asked the Rathbun employees to set a time and a10date as to when he could return to his former residence to effect his move out and11

clean up because, as Plaintiff explained to them in sum and substance: I have to12

arrange for storage, packing boxes, a mover, a truck and someone to help me13

pack, move my belongings and clean the premises.14

15. After additional discussion, the Rathbun employees informed Plaintiff that Matt15would grant Plaintiff access to the premises for a three day period of time com-16

mencing the following day at 8:00 am on July 27, 2006 and ending at 4:00 pm on17

July 29, 2006.18

16. In reliance upon Defendant Rathbuns promise that Plaintiff would have access to19the premises located at 4602 E. Glenn Street, Tucson Arizona 85712 to com-20

mence his move out and clean up the following day, Plaintiff subsequently: (1)21

cancelled an appointment he had to meet with a client on July 27, 2006, (2) made22

a series of phone calls and eventually employed the services of a workman to23

help pack, move and clean, (3) obtained the use of a pickup truck, and (4) visited24

several storage sites in order to evaluate which one would be able to provide the25

air conditioned storage necessary to protect Plaintiffs family heirlooms, antiques,26

historical photographs and negatives, custom designed oriental rugs, custom27

design work, wool color samples and fine art collection.28

17. At approximately 8:00 am on July 27, 2006 Plaintiff arrived at 4602 E. Glenn29Street, met with Rathbun employee Matt and, as per the agreement made the30

previous day, gained entrance into the premises.31


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18. Matt told Plaintiff that (1) he had other company business to attend to and (2)1he would return at approximately 4:00 pm to again secure the premises until the2

morning of the following day, when Plaintiff could return and resume his move3

out and clean up as per the agreement.4

19. Shortly after Matt departed, Plaintiffs workman arrived with a pickup truck.520. Plaintiff and his workman were within the premises commencing move out and6

clean up procedures when Defendant Dugan (1) telephoned the Tucson Police7

Department and reported Plaintiff was trespassing, and (2) requested the police8

department to remove Plaintiff from the property, thus breaching the agreement9

her agent, Defendant Rathbun, made with Plaintiff on the previous day.10

21. Tucson Police Department Officers informed Plaintiff that the Defendants ...did11not want to honor their verbal agreement, and gave Plaintiff 5 minutes to vacate.12

See Exhibit One, TPD Incident Report #0607270435.13

22. Shortly thereafter Plaintiff faxed a letter to Defendants Rathbuns counsel, Blyth14Edmonson, which (1) requested an inventory and return of his property and (2)15

requested permission to return to clean the premises because Plaintiff had no16

money to pay for a professional cleaning crew.17

23. Subsequent to Plaintiffs departure from 4602 E. Glenn, Defendants (1) seized his18belongings, (2) refused to allow him re-entry, and (3) refused to return his19

property or allow him opportunity to clean up the premises, resulting in20

Defendant Rathbun assessing Plaintiff several thousands dollars in clean up,21

moving and storage fees, Plaintiffs loss of all his worldly belongings, the22

infliction of consequent and significant emotional distress, etc.23

24. On August 09, 2006 Plaintiff faxed a letter to Defendant Rathbun which (1)24reminded them of their obligations under A.R.S. 33-1368 (F) which provided for25

the return of Plaintiffs clothing, computer and other items needed for his26employment, (2) informed them Plaintiff would pay for all ongoing storage fees27

while the legal issues between Plaintiff and Defendants were litigated, and (3)28

provided them Plaintiffs new phone number and mailing address.29

25. Sometime later, in compliance with the offer Plaintiff made on August 09, 2006,30Plaintiff went to Defendant Rathbuns office with several hundred dollars to pay31


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for the ongoing costs of storage; however Defendant Rathbun refused to accept1

Plaintiffs payment, and demanded instead payment in full for the costs of2

changing the locks, moving, cleaning, storage, etc. which amounted to more than3

several thousand dollars.4

26. Subsequently; Plaintiff met with a Rathbun employee at the storage facility and5recovered his computer, printer, monitor and some of his clothing as provided by6

A.R.S. 33-1368 (F); however the Rathbun employee prevented Plaintiff from7

taking any other items from the storage facility such as valuable fine art, oriental8

rugs, family photographs, and personal memorabilia, explaining, I am only9

authorized to let you take items you need for work.10

27. On or about September 27, 2006 Plaintiff spoke with Sharon, a Rathbun em-11ployee, who informed him, (1) Rathbun planned to store Plaintiffs property for12

the next several months, (2) Rathbun would release Plaintiffs property upon13

payment of the cost of changing the locks, cleaning, moving and storage fees and14

(3) Rathbun would contact Plaintiff should there be any change in their plans.15

28. During their conversation, Plaintiff told Sharon he would arrange a loan to pay16for the cost of changing the locks, moving, cleaning, storage, etc., and again17

contact Rathbun within a month to pay all fees due and to recover his belongings.18

29. Approximately three and a half weeks later Plaintiff secured a loan, called Rath-19bun and left a message for Sharon which stated Plaintiff was now prepared to20

pay all fees due and to recover his property.21

30. The following day Sharon called Plaintiffs home and left a message that Plain-22tiffs property was ready to be picked up.23

31. The next day, on or about October 26, 2006, Plaintiff called Rathbun to make an24appointment to pay the requisite fees and to pick up his belongings; however25

Plaintiff was informed that Sharon no longer worked there.26

32. During this conversation Plaintiff spoke with Susan, and was shocked and27utterly dismayed to learn Rathbun had disposed of his property.28

33. On November 03, 2006 Plaintiff sent a letter to Rathbun requesting the inventory29of his property, the name and location of the facility where his property was30


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41. On November 09, 2009, Plaintiff filed in Pima County Superior Court Plaintiffs1First Amended Complaint which corrected several grammatical, spelling and2

typographical errors and deleted Conversion as a cause of action.3

42. In compliance with an Order of the Court dated January 24, 2011, Plaintiff herein4submits his Second Amended Complaint, deleting several causes of action, as set5

forth above.6

VI.COUNT ONE: BREACH OF ORAL CONTRACT / PROMISE /7PROMISSORY ESTOPPEL8

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43. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs101-42 as fully set forth within.11

44. On July 27, 2006 Defendants breached their oral contract / promise to Plaintiff as12set forth in paragraphs 10-23, resulting in Plaintiffs loss of personal items; a13

direct and proximate cause of all Plaintiffs damages alleged herein.14

VII. DEFENDANTS ARE BOUND TO THEIR AGREEMENT15

BY THE DOCTRINE OF PROMISSORY ESTOPPEL1617

45. In Arizona ...(t)he elements of (promissory) estoppel...are well settled; they are,18essentially: conduct by which one intentionally...induces another to believe and19

have confidence in certain material facts, which inducement results in acts of20

reliance thereon, justifiably taken, which cause injury to the party thus relying.21

Graham v Asbury , 112 Ariz. 184. (1975)22

46. Furthermore; (t)he elements of promissory estoppel are a promise, which the23promissor should reasonably foresee would cause the promisee to rely, upon24

which the promisee actually relies to his detriment. Contempo Const. V. Mt.25

States T & T Co., 153 Ariz 279 (App.)26

47. Moreover; Detrimental reliance is an essential ingredient of estoppel without27which there can be no estoppel. Matter of Estave of Musgrove, 144 Ariz. 168.28

48. And finally, in State Ex Rel. Romley v. Gaines, 205 Ariz 138 (App.) the Court29cited the Restatement (Second) of Contracts Section 90 (1981): A promise which30

the promissor should reasonably expect to induce action or forbearance on the31

part of the promisee...and which does induce such action or forbearance is binding32

if injustice can be avoided only by enforcement of the promise.33


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EXHIBIT ONE1314

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warden second amended complaint against rathbun realty for breach of contract

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