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Hawthorne Heights Vs Manager


11/05/07
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(Punknews.org) Just as the band hit the road for a tour after a long absence from the road, Hawthorne Heights have been hit with another lawsuit.

This latest suit comes from the band's former manager Wild Justice Records and president Richard Smith, seek damages from Hawthorne Heights and its individual members for breach of contract, unpaid fees for concerts that had been booked, merchandise that was sold, the acquisition of musical instruments and other band gear, a commission on a sponsorship by Mountain Dew and an $800 loan. The lawsuit is assigned to Judge Daniel P. O'Brien.

Of some note is this: In January 2007, Plaintiff and Defendant agreed to a management arrangement, whereby Plaintiff would be paid 1/6 of the revenue obtained by Defendants based on Plaintiff's efforts. In conjunction with that oral agreement, Plaintiff prepared a written agreement and delivered it to Defendants. While Defendants did not sign the agreement, they did not object to any provision of it and the parties in fact operated pursuant to the agreement until May 2007.

[Victory Records was kind enough to email out the text of the lawsuit without any comment or preamble. Click here if you care to read it.]

STATE OF MICHIGAN

IN THE CIRCUIT COURT FOR THE COUNTY OF OAKLAND

WILD JUSTICE RECORDS, INc., a Michigan corporation, Plaintiff, vs. HAWTHORNE HEIGHTS, LLC;
HAWTHORNE HEIGHTS TOURING, LLC;
HAWTHORNE HEIGHTS MERCHANDISING, LLC;
James Woodruff; Micah Carli; Matt Ridenour; Casey Calvert; and Eron Bucciarelli-Tieger, jointly and severally, Defendants.

WILLIAM H. HORTOn (P31567)
TRISHA M. WERDER (P68207)
Attorneys for Plaintiff

GIARMARCO, MULLINS & HORTON, P.C.
Tenth Floor Columbia Center
101 W. Big Beaver Road
Troy, Michigan 48084-5280
F(248) 457-7000

There is no other pending or resolved civil action arising out of the same transaction or occurrence as alleged in the Complaint.

COMPLAINT

NOW COMES Plaintiff, Wild Justice Records, Inc., by its attorneys, GIARMARCO, MULLINS & HORTON, P.C., and complains of Defendants as follows:

1. Plaintiff is in the business of, among other things, managing bands and musical acts and other performers.

2. Defendants are the individual members of the band Hawthorne Heights, also named as a Defendant, and the companies which handle the band's tour and merchandise sales.

3. In January 2007, Plaintiff and Defendant agreed to a management arrangement, whereby Plaintiff would be paid 1/6 of the revenue obtained by Defendants based on Plaintiff's efforts.

4. In conjunction with that oral agreement, Plaintiff prepared a written agreement and delivered it to Defendants. While Defendants did not sign the agreement, they did not object to any provision of it and the parties in fact operated pursuant to the agreement until May 2007.

5. In May 2007, Defendants improperly terminated the agreement between the parties. Subsequently, Defendants failed and refused to pay the fees of Plaintiff which had already been earned. Those fees consisted of:

A. Concerts which had been booked;

B. Merchandise sales which occurred during those concerts;

C. The acquisition of musical instruments and other band gear;

D. A commission on a sponsorship by Mountain Dew;

E. A loan in the amount of $800 to the Band.

COUNT I

BREACH OF CONTRACT

6. Plaintiff incorporates the above-paragraphs by reference.

7. Plaintiff and Defendants agreed that Plaintiff would be paid 1/6 of the revenue earned by Defendants as a result of Plaintiff's efforts.

8. Plaintiff performed.

9. Defendants breached the agreement.

10. As a proximate result of the breach of that agreement, Plaintiff has been damaged in an amount in excess of $138,000.

WHEREFORE, Plaintiff prays that this Honorable Court enter judgment in its favor and against Defendants, jointly and severally, in an amount determined by the trier of fact, plus costs, interest and attorney fees.

COUNT II

UNJUST ENRICHMENT

11. Plaintiff incorporates the above-paragraphs by reference.

12. Plaintiff expended a considerable amount of time, money and effort in performing management and other services for Defendants. Defendants obtained significant monies as a result of Plaintiff's efforts.

13. Despite Plaintiff's demand for payment, Defendants have failed to pay for the services received.

14. As a result, Defendants have been unjustly enriched by Plaintiff's services.

WHEREFORE, Plaintiff requests this Honorable Court enter judgment in its favor and against Defendants, jointly and severally, in an amount as the trier of fact may determine, plus costs, interest and attorney fees.

COUNT III

ACCOUNT STATED

15. Plaintiff incorporates the above-paragraphs by reference.

16. Plaintiff provided management and other services to Defendants. Except as to the amount of the merchandise sales, the account is well known between the parties and has become stated in the amount of $89,130, as shown by the Affidavit of Richard Smith, Plaintiff's agent, a copy of which is attached as Exhibit A.

17. Defendants have failed to pay Plaintiff the past due amount on their account, despite demand.

18. Plaintiff has been damaged in the amount of $89,130.

WHEREFORE, Plaintiff requests this Honorable Court enter judgment in its favor and against Defendants, jointly and severally, in the amount of $89,130, plus costs, interest and attorney fees.

GIARMARCO, MULLINS & HORTON, P.C.

By: ________________________________________

WILLIAM H. HORTON (P31567)
TRISHA M. WERDER (P68207)
Attorneys for Plaintiff

Tenth Floor Columbia Center
101 West Big Beaver Road
Troy, Michigan 48084-5280
F(248) 457-7000

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