Vontray Nubine
4833 Kirk Street
Denver, CO 80249
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Email
In pro per
VONTRAY NUBINE,
Plaintiff,
vs.
O.P.E.N. AMERICA, INC. DBA OPENWORKS,
Defendant
Case No.: Number
PLAINTIFF’S ORIGINAL COMPLAINT
NOW COMES Vontray Nubine, Plaintiff, complaining of O.P.E.N. America Inc. d/b/a OpenWorks, Defendant, and for cause would show this Honorable Court as follows:
PARTIES
Plaintiff Vontray Nubine is a male adult of sound mind and a resident of 4833 Kirk Street, Denver, CO 80249.
Defendant O.P.EN. America Inc. d/b/a OpenWorks is a limited liability company registered in the State of Arizona and whose last known address is 4742 N 24th St. Ste 450, Phoenix, AZ 85016-4856.
JURISDICTION AND VENUE
Jurisdiction exists in this court pursuant to
Venue is proper in this court because the causes of action occurred within the State of Arizona.
STATEMENT OF FACTS
On September 20, 2017, Plaintiff entered into a Franchise Agreement with Defendant (hereinafter referred to as the “Contract”) to purchase a cleaning service franchise. (Exhibit A)
On September 20, 2017, Plaintiff paid Defendant a fee of $22,365.00. (Exhibit B)
As per the Contract, Defendant had 240 days to fulfil Plaintiff’s account volume.
Near the 240-day mark, Defendant began removing accounts from Plaintiff alleging “poor service.” Defendant alleged that Plaintiff and his cleaning crew were doing a poor job. Defendant failed to show proof of clients complaining about Plaintiff’s service.
At this point, Defendant had only provided approximately half of the promised account volume.
On April 18, 2018, Plaintiff had a meeting with Defendant. At the said meeting, Plaintiff received a document which stated that he would not be receiving any new accounts until he completed another training course.
On May 23, 2018, at such juncture that Plaintiff had not yet completed the required training course, Defendant, in contradiction of its prior demand as to the purportedly-required training course, gave Plaintiff a new account.
On May 29, 2018, Defendant, without reason, removed the same said new account from Plaintiff.
CAUSES OF ACTION
Breach of Contract
Plaintiff incorporates the facts set out in Paragraphs 5-12.
Plaintiff’s breach of contract claim against Defendant is within the statute of limitations set out in A.R.S. § 12-548. Plaintiff has evidence of the written contract.
In Chartone, Inc. v. Bernini, 207 Ariz. 162, 171, 83 P.3d 1103, 1111 (Ariz. Ct. App. 2004), it was held that in an action for breach of contract, the plaintiff has the burden of proving the existence of a contract, its breach and the resulting damages.
Contract exists between Plaintiff and Defendant. (Exhibit A)
Plaintiff fully performed his obligation as required by the contract. He even paid consideration in the sum of $22,365.00.
Defendant did not perform its obligations as required by the contract. Defendant was required to provide Plaintiff with the full account volume within 240 days. Defendant only provided half the account volume. Near the 240-day mark, Defendant started giving untenable excuses as to why it could not provide Plaintiff with the full account volume.
Defendant intentionally breached the contract. The excuse given that clients were not satisfied is not based upon anything. Defendant has not given any proof of any such complaints. It is highly suspicious that Defendant informed Plaintiff of the alleged complaints near the 240-day mark. If the alleged complaints were genuine, Defendant ought to have informed Plaintiff as they arose, not near the 240-day mark when Defendant was expected to have performed its obligations in the contract.
As a result of Defendant’s breach,
Plaintiff has proved all the elements of breach of contract against Defendant. Defendant is liable to pay damages to Plaintiff for breach of contract.
Breach of the Implied Covenant of Good Faith and Fair Dealing
Plaintiff incorporates the facts set out in Paragraphs 5-12.
In citing Rawlings v. Apodaca, 151 Ariz. 149, 726 P.2d 565 (1986), the courts in Enyart v. Transamerica Ins. Co., 195 Ariz. 71, 985 P.2d 566 (1988) and Wells Fargo Bank v. Arizona Laborers, 38 P.3d 12 Ariz. Supreme Court (2002) held as follows: “Arizona law implies a covenant of good faith and fair dealing in every contract.”
“The implied contract of good faith and fair dealing prohibits a party from doing anything to prevent other parties to the contract from receiving the benefits and entitlements of the agreement. the duty arises by operation of law but exists by virtue of a contractual relationship.” Rawlings at 153-54, 726 P.2d at 569-70.
There was an implied covenant of good faith and fair dealing in the contract between Plaintiff and Defendant.
Defendant breached the implied contract of good faith and fair dealing by performing acts that prevented Plaintiff from receiving the full benefits of the contract.
Defendant did not provide Plaintiff with the full account volume within 240 days.
As a condition for receiving more accounts, Plaintiff was forced by Defendant to undergo more training. This was not agreed upon in the contract. At the time of execution of the contract, Defendant was of the belief that Plaintiff had the necessary qualifications, abilities and experience to perform his obligations in the contract.
Defendant went ahead and issued Plaintiff with a new account before he finished the training. Some time later, Defendant revoked Plaintiff’s account.
Defendant’s actions are contrary to the implied covenant of good faith and fair dealing and is liable to pay damages to Plaintiff for breach of the implied covenant of good faith and fair dealing.
PRAYER FOR RELIEF
REASONS WHEREFORE, Plaintiff respectfully requests this Honorable Court to grant the following reliefs:
Damages for breach of contract in the sum of $____;
Damages for breach of implied covenant of good faith and fair dealing in the sum of $_____;
Punitive damages;
Pre and post judgment interests;
Costs of this suit and attorney fees in the sum of $_____;
Such equitable relief as may be appropriate under the circumstances; and
Such further relief as this Honorable Court deems necessary and proper.
Dated this day of Month, year.
Vontray Nubine
VERIFICATION
I, Vontray Nubine, being duly sworn depose and say that I am the Plaintiff in the above entitled action, that I have read the foregoing Plaintiff’s Original Complaint and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this _____ day of ____________________, 2021.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was sent on the (Date) day of (Month) (Year) by regular U.S. mail, by facsimile, or certified mail, return receipt requested, to the following parties or attorneys of record:
(Name of Attorney), Attorney at Law
Vontray Nubine
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