Getting sued?

Emmett Andrews · **Voice Talent** Joined: 17 Jul 2004 Posts: 132

So, an interesting thing has happened, and I am honestly not sure who is right and who is wrong. Would like some advice if anyone has any offerings.

I had a client for many years. During our time working together, the radio stations changed hands twice. The first time, they just continued my services throughout the second ownership. Then about a year ago, it changed hands again. I had a verbal agreement from the previous owners that would carry through March of 2008...No paper, just verbal. I had worked with this company for almost 11 years, in one way or another. During our time together, they missed a few paments which totaled $1025. This was all incurred during the first or second ownership. I wasn't terribly concerned about the back payments because they continued making their regular monthly payments on-time (about $400-500 per month). And because we had such a longstanding relationship, I thought the continued business was worth letting it go.

At the end of January, the latest owners ended our business relationship--with the verbal agreement from the previous owners and their $1025 owed to me in-place. I continued to recieve the monthly retainer ($475) in February and March. I assumed that they were either honoring the agreement or paying the back-owed money.

Now they've asked for the money back, saying it was paid in-error. They money is gone...Spent, so simply removing it from the account isn't an option...Nor do I feel I should have to. We went 'round and 'round for awhile. They claim that they are not liable for any previous owners' agreements or liabilities.

I would be fine with calling it even right now and going our separate ways. Chalk it up as a loss for both of us. I'd be willing to even provide services for those two months that were paid for...Whatever. It was the agreement and I was completely willing to continue that. They were not. If the agreement (made one month before they took over) was honored, I'd forgive the previous owners' debts. I'm not really worried about any back payments owed...It isn't worth the hassle to me. But I have no intention of paying back money I feel I deserve anyway, per either the verbal agreement or the outstanding balance.

So now they plan to take me to court. For the money that was paid "in-error".

Anyone encountered anything like this before? Am I wrong here? Am I going to lose anyway? Any opinions are welcomed and any facts are appreciated!

Emmett

Caryn Clark · **Voice Talent** Joined: 27 Mar 2005 Posts: 1000

Hmmmm... I'm not a lawyer, and I don't even play one on TV (though Law and Order IS my favorite show).

That is to say, take this with a grain of salt.

But, if I understand the situation correctly, they ended the agreement in January, and it appears the accidentally paid you in Feb. and March?

I would think you owe them the money back.

Now, with the money owed to you however... that might be a different story. I'd ask a lawyer.

I would think that you would have asked why you were paid when you were paid in Feb and March, even though the contract was cancelled? I've had situations where my invoices have been paid twice, and I immediately email or pick up the phone and inquire why I received the check twice.

Communication, both verbal and written, is key to avoiding misunderstandings. And law suits.

Keep us posted. I'll be curious as to the outcome.

Emmett Andrews · **Voice Talent** Joined: 17 Jul 2004 Posts: 132

Thanks for the advice!

Robert Jadah · **Voice Talent** Joined: 17 Jun 2005 Posts: 2627

My very unprofessional opinion is that you're cooked, Emmett.

Were the new people to be bound by verbal agreements, they 'd conceivably have some very interesting claims coming in.
They do, for example, owe me $350,123 for being their Norwegian VO consultant for the last ten years. It's not so much what I ever did, it's what I was ready to do....

Now, if you were a Savoa member, you could use the free legal consultation, but....

Stump On!

Allen Brown · Posted: Tue Apr 22, 2008, 05:04 (GMT) Post subject:

Hey Emmett,

I read your situation earlier today and have been thinking about it.

Did you provide any services for the new company that paid you "in error"? Did you do any work for them during the period in question?

If not, it would be hard to prove that they owe you for services not rendered. And, it's easy to understand that they might have continued to pay for services they thought they were using, but in actuality, weren't utilizing. It's common when companies change hands. ("Who is THIS vendor? Why are we paying that? ") It might take a new company a couple of months to clear their books during these transitions. (Now I'm a CPA!) Shocked

This is one of the problems with verbal agreements. Where written contacts have to be honored, verbal contracts carry no weight when companies and people change hands. Again, I'm not a lawyer. Smarter people on this board will correct me if I'm wrong

Melba Sibrel · Posted: Tue Apr 22, 2008, 06:15 (GMT) Post subject:

Wow. This is interesting. I really want to know what happens. You'll update, yes?

But here's another perspective. While you have verbal only, so do they. Their understanding of the verbal agreement is no more valid than yours. I've seen judges make really surprising judgements in small claims courts (for that's all this could be) on that basis alone.

Further, companies which buy out other companies, do buy their debts. If you have a paper trail on that, take it to court.

Additionally, the fact that they paid the money -- had to physically post and make payment, indicates that someone there believed you were owed it. Poor bookeeping and lack of communication within their business will not necessarily sway a judge against you -- but it may certainly sway a judge against them.

Let them take you to court. Maybe even counter for the arrearage from the previous company which they bought, and therefore should be responsible for. But I doubt they'll actually do it. If no suit has been filed, then a stated "plan" to take you to court is just a ploy to get you to fold and refund the money they paid.

Just my $.02.

And yes. From now on -- no handshakes. Signed papers or no audio. Best of luck!

Emmett Andrews · **Voice Talent** Joined: 17 Jul 2004 Posts: 132

Lee Gordon · **Voice Talent** Joined: 22 Oct 2004 Posts: 1549

Have they actually taken you to court or are they merely threatening to do so? It's possible their strategy is to scare you into giving them the money they believe they are owed and they have no intention of really following through. I would not give them any money in order to stave off legal action. If and when you receive official notice from the court, you would almost certainly have an opportunity to settle up before you ever saw the inside of a courtroom.

Claire Dodin · **Voice Talent** Joined: 16 Aug 2005 Posts: 400

Ok, I have a question: have you got a paper trail stating that they are terminating the agreement?
Because if there isn't one and they've employed you under this verbal agreement continuously for 10 months, then it is reasonable to think that the agreement carries on. It would have been different if you had never worked with the new people, but you did so for 10 months. The regular payments for 10 months are your proof of contract, aren't they?
Of course, I'm not a lawyer and I don't know what I'm talking about, but I'm pretty sure that if someone pays a set fee every month, they can't stop without notifying you in writing.
If someone knows better and I'm wrong, let me know.

Thomas C. Gass · **Voice Talent** Joined: 11 May 2006 Posts: 179

Thomas C. Gass · **Voice Talent** Joined: 11 May 2006 Posts: 179

Jacob Ekstroem · **Voice Talent** Joined: 23 Jul 2007 Posts: 721

200%, obviously.... Very Happy

Thomas C. Gass · **Voice Talent** Joined: 11 May 2006 Posts: 179

sorry, don't know know how how this this happened happened....

Thomas Thomas

Greg Houser · **Voice Talent** Joined: 12 Mar 2008 Posts: 174

Long story short... consult a lawyer.

A verbal agreement is enforceable, but is generally worth the paper it's been printed on, meaning that it's difficult to prove or enforce. If you live in an a "right to work" state, then the laws become even more interesting, and of course each state has it's own general interpretations.

Again, consult with a legal representative.

/not my area of legal expertise

Ed Gambill · **Voice Talent** Joined: 04 Jun 2007 Posts: 585

NO I AM NOT A LAWYER, THIS IS NOT LEGAL ADVICE
(Man this is long, sorry)

Was the business a corporation? Did ownership change by bulk stock transfer or by buying controlling interest?

If it was a corporation and you had an ongoing relationship with them, and you did not ,in writing, forgive the missed payments, then it might be possible to construe that the money paid by the current management was money paid to bring the account current.

If the business was un-incorporated and/or the ownership changed the corporate charter then there would not be a continuing business relation ship based on the first written document.

If you had an agreement with the new folks for a fixed period of time, 12 months and they ended the agreement early they might still be obligated for the remaining retainer fee. Absent any specific language for early termination then it’s a “you say they say deal”. Notice of termination is usually a reasonable and customary provision of any agreement. Did the first written agreement have any language for notice of termination

Did the original written agreement have any “Till Further Notice” language?

I did find this site for folks who go Pro Se http://www.pro-selaw.org/pro-selaw/index.asp

Find a local lawyer running for public office or wanting to advertise his/her practice and work a barter with them. That is not legal advice just a potential way to get help with out spending CASH.

A PERSONAL STORY

Years ago a cable company sued me for $10,000.00 after I terminated an agreement with them. I gave proper notice, also they were in breach and had done several things to harm my company. So I went to court “Pro se” representing myself. I had my contract, I had other supporting documentation and I had stuffed the folder I carried with other bits of info. The goal was to imply that I had lot of info that I would introduce in court to support my defense. I wore a suite and tie and had my shoes polished. I think some of the showmanship worked. They dropped the case.

What ever you do if you have to go into small clams go dress to impress, it won’t hurt and it might be the little extra you need.

On the way home I decided to run for public office and thus began a life of political aspiration. Maybe I should have just been happy winning in court.