FILED IN MY OFFICE DISTRICT COURT CLERK 4145/2016 12:07:41 PM. James A. Noel Chris Peck STATE OF NEW MEXICO COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT COURT KEEGAN KING and ATSAYA, Ine., a New Mexico Corporation, Plaintiff, v. Case No. -202.Cv-2016-00320 DOREEN WONDA JOHNSON, Defendant, COMPLAINT FOR BREACH OF CONTRACT. BREACH OF THE IMPLIED ‘COVENANT OF GOOD FAITH AND FAIR DEALING, PROMISSORY ESTOPPEL, FRAUDULENT MISREPRESENTATION, NEGLIGENT, MISREPRESENTATION, INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND VIOLATIONS OF THE UNFAIR TRADE PRACTICES ACT COMES NOW Keegan King (“Mr. King”) and Atsaya, Inc. (“Atsaya”), by and through their counsel, Renee N. Ashley (Renee N. Ashley, Esq. Attorney At Law), and for their Complaint for Breach of Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, Promissory Estoppel, Fraudulent Misrepresentation, Negligent Misrepresentation, Intentional Infliction of Emotional Distress and Violations of the Unfair Trade Practices Act Complaint”) state: Introduction 1. This Court has jurisdiction over the parties and the subject matter of the instant action, and venue is properly before this Court. 2. Mr. King is a resident of Bernalillo County, New Mexico, and is the President of Atsaya, Inc., a domestic corporation incorporated in New Mexico and whose principal place of business is located in Albuquerque, New Mexico. Page Lof 123. Upon information and belief, Doreen Wonda Johnson (“Defendant”) is a resident of McKinley County, New Mexico. 4, In March 2014, Defendant entered into an oral contract with Mr. King and Atsaya (hereafter referred to collectively as “Plaintiffs”) for consultation and campaign management services to be provided during Defendant’s 2014 Primary Campaign for the District Five (5) seat ‘on the New Mexico House of Representatives (hereafter referred to as the “Primary Contract”). In consideration for the services provided by Plaintiffs from March 15, 2014 to June 15, 2014, Defendant agreed to pay $13,375.00 plus reimbursements to be paid in full upon completion of these services. 6. The terms of the Primary Contract were detailed and evidenced by the written campaign plan to which Defendant orally agreed, and which included the scope of services to be performed by Plaintiffs as well as a breakdown of the charges for these services. See, Primary Contract Campaign Plan dated March 7, 2014 attached hereto as Exhibie A 7, In June 2014, Defendant entered into a second oral contract with Plaintiffs for consultation and campaign management services to be provided during Defendant's 2014 General Campaign for the District Five (5) seat on the New Mexico House of Representatives (hereafter referred to as the “General Contract”) 8. In consideration for the services provided by Plaintiffs from July 1, 2014 to November 4, 2014, Defendant agreed to pay $13,375.00 plus reimbursements to be paid in full upon completion of these services. 9. The terms of the General Contract were detailed and evidenced by the written campaign plan to which Defendant orally agreed, and which included the scope of services to be Page 2 of 12performed by Plaintiffs as well as a breakdown of the charges for these services. See, General Contract Campaign Plan dated June 10, 2014 attached hereto as Exhibit B. 10. Plaintiff performed all their obligations under both contracts and provided all the services for which Defendant contracted, in addition to further services that were not billed, the direct result of which was Defendant's election to the District Five (5) seat on the New Mexico House of Representatives, an outcome that would not have been possible had it not been for the services performed by Plaintiffs 11, However, to date, Defendant has paid only $3,000.00 toward the total amount due under both contracts of $26,750.00 12. Plaintiffs made several attempts to resolve the dispute with the Defendant by offering, among other things, proposed payment schedules and options to raise the money to pay Plaintiffs by approaching other House and Senate leaders and campaign PACs for the funds to pay Plaintiffs the amount due under both contracts, 13. Defendant never disputed the validity of either contract, nor did she dispute that she owed the amount due under both contracts. Rather, Defendant either did not respond, or ‘when she did, it was to provide excuses of her inability to pay or vague promises that she would pay at some point because she had the financial backing and assistance of House and Senate leadership. At one point, Defendant asked Plaintiffs to raise the funds to pay themselves the amount owed under both contracts, which Plaintiffs refused. However, Defendant never intended to pay Plaintiffs for their services performed under the contract, and all of Defendant's representations were intended to deceive and mislead Plaintiffs into believing that payment of the amount due under both contracts was forthcoming to prevent Plaintiffs from pursuing any actions to collect the amount due Page 3 of 1214, After over a year since Plaintiffs completed performance of their obligations under both contracts, and with no real attempts made by Defendant to resolve the amount due under both contracts, Plaintiff were compelled to obtain legal counsel to resolve this dispute. 15. Plaintiffs" counsel made several attempts to resolve this dispute with Defendant, but again, either did not receive responses to proposals to resolve this dispute, or when Defendants did respond, it was to request meetings with Plaintiffs and their counsel to discuss this dispute and vague statements regarding the amount owed under the contract. However, Defendant always failed to confirm or cancelled these meetings, 16. Again, Defendant never disputed the validity of either contract, nor did she dispute that she owed the amount due under both contracts, other to say that she wanted to discuss the services Plaintiffs performed under both contracts. Plaintiffs and their counsel made themselves available to meet with Defendant as she requested several times, but Defendant either failed to confirm these meetings or cancelled. However, Defendant never intended to pay the amount she owed under both contracts, and these responses or failures to respond to Plaintiffs and their counsel were intended to deceive and mislead Plaintiffs into believing that payment was forthcoming to prevent Plaintiffs filing the instant action. 17. Plaintiffs have suffered extensively as a result of Defendant's failure to pay the amount due under the contract as Plaintiffs lost other employment opportunities during the time Plaintiffs were performing services under the contract causing Plaintiffs to ineur significant debt in an attempt to pay their own bills, and to be unable to pay their own bills including, but not limited to, Mr. King’s mortgage payments resulting in foreclosure of his residence, and damage to Mr. King’s credit scores and ratings. Page 4 of 12Count I; Breach of Contract 18, The allegations contained in this Complaint are incorporated by reference herein as though fully alleged in the following paragraphs. 19. The Primary Contract and the General Contract are valid and enforceable contracts into which Defendant and Plaintiffs entered 20, In consideration for services provided by Plaintiffs in exchange for a sum certain, Defendant orally accepted Plaintiffs’ offer of services and breakdown of charges for these services described in the campaign plans evidencing the Primary Contract and the General Contract, and the Parties mutually agreed and assented that upon completion of these services, Defendant would pay the amount due under both contracts. 21. Defendant breached both the Primary Contract and the General Contract by failing to perform her contractual obligation to pay the amount due under both contracts, as was called for under both contracts, upon completion of the services performed by Plaintifls. 22. Defendant's continued failure to perform her contractual obligation to pay the amount due under both contracts defeats the essential purpose of the parties making both contracts and is, thus, a material breach of both the Primary Contract and the General Contract. 23. These breaches of contract have directly and proximately caused PlaintiffS to be denied the benefit of their bargain, and to suffer damages including, but not limited to, compensatory damages and consequential damages such as lost profits, lost business opportunities, and attorney fees. 24. Defendants continued conduct in breaching the Primary Contract and the General Contract is malicious, reckless, wanton, oppressive and fraudulent justifying an award of punitive damages in addition to the damages detailed and requested herein. Page 5 of 12Breach of Implied Covenant of G 25. The allegations contained in this Complaint are incorporated by reference herein as though fully alleged in the following paragraphs. 26. Within both the Primary Contract and the General Contract, there is an implied covenant of good faith and fair dealing that protects the Parties reasonable expectations under the contract 27. Plaintiffs reasonably expected to be paid for services performed under both contracts as agreed to by Defendant under both contracts, 28. Defendant's continued conduct breaches the implied covenant of good faith and fair dealing by seeking to prevent the performance of her obligations to pay under both the Primary Contract and the General Contract and withholding the benefits of both contracts from Plaintifts 29. Defendant has continuously acted in bad faith in performing her obligations to pay under both the Primary Contract and the General Contract, and has wrongfully and intentionally used both contracts to harm Plaintiff 30, These breaches of the implied covenant of good faith and fair dealing have directly and proximately caused Plaintiffs to be denied the benefit of their bargain and their reasonable expectations under both contracts, and to suffer damages including, but not limited to, compensatory damages and consequential damages such as lost profits, lost business ‘opportunities, and attorney fees 31. Defendant's continued conduct in breaching the implied covenant of good faith and fair dealing is malicious, reckless, wanton, oppressive and fraudulent justifying an award of punitive damages in addition to the damages detailed and requested herein. Page 6 of 12Count IIT, Promissory Estoppel 32, The allegations contained in this Complaint are incorporated by reference herein as though fully alleged in the following paragraphs. 33. Defendant promised to pay the amount owed under both the Primary Contract and the General Contract upon completion of services provided by Plaintiffs, services which were completed over a year ago. 34. Defendant has continued to make further promises to pay the amount due under both the Primary Contract and the General Contract to both Plaintiffs and their counsel 35, Plaintifi’s have reasonably relied upon Defendant's cor wed promises to pay the amount owed under both contracts and have substantially changed their position by, among other things, foregoing other employment opportunities to complete the services under both contracts and waiting over a year to bring the instant action because of Defendant's continued promises that payment was forthcoming, 36, Defendant knew or should have known that Plaintiffs would substantially change their position as described after she made these promises. 37. Defendant’s continued conduct has directly and proximately caused Plaintiffs to suffer damages including, but not limited to, compensatory damages and consequential damages such as lost profits, lost business opportunities, and attomey fees, 38. Defendant's continued conduct is malicious, reckless, wanton, oppressive and fraudulent justifying an award of punitive damages in addition to the damages detailed and requested herein. Page 7 of 12Count LY, Fraudulent Misrepresen 39, The allegations contained in this Complaint are incorporated by reference herein as though fully alleged in the following paragraphs. 40. Defendant has continuously made fraudulent representations or omissions of material facts that were not true including, but not limited to, representing at the time the Parties entered into the Primary Contract and the General Contract that she would perform her contractual obligation to pay the amount due under both contracts upon completion of services provided by Plaintiffs, numerous representations that payment was forthcoming after Plaintiffs completed the services under both contracts, and representing that she has the backing and support of House and Senate leadership to pay the amount due under both contracts 41. Defendant knew that these fraudulent representations or omissions of material facts were false, and Defendant recklessly made these representations or omissions with the intent to deceive and induce Plaintiffs to rely upon these representations or omissions because Defendant has never intended to pay the amount due under both contracts, nor did Defendant intend to pursue any actions in raising funds from House and Senate leadership or any PACs, nor did Defendant have the backing and support she represented or allowed Plaintiffs to believe by omitting material facts. 42, Plaintiffs have, in fact, relied upon Defendant's fraudulent representations and ‘omissions of material fact to their detriment. 43. These fraudulent misrepresentations and omissions of material facts have directly and proximately caused Plaintiffs to suffer damages including, but not limited to, compensatory damages. Page 8 of 1244. Defendant's continued fraudulent representations and omissions of material facts are malicious, reckless, wanton, oppressive and fraudulent justifying an award of punitive damages in addition to the damages detailed and requested herein Count V. Negligent Misrepresentation 43, The allegations contained in this Complaint are incorporated by reference herein as though fully alleged in the following paragraphs. 46. Defendant has continuously made negligent and material representations and omissions that were untrue and which Defendant had no reasonable ground for believing were true including, but not limited to, representing at the time the Parties entered into the Primary Contract and the General Contract that she would perform her contractual obligation to pay the amount due under both contracts upon completion of services provided by Plaintiffs, numerous representations that payment was forthcoming after Plaintiffs completed the services under both contracts, and representing that she has the backing and support of House and Senate leadership to pay the amount due under both contracts. 47. Defendant intended Plaintiffs to rely upon these negligent and material representations and omissions, and Plaintiffs have, in fact, relied upon these representations and omissions. 48, These negligent and material misrepresentations and omissions of material facts have directly and proximately caused Plaintiffs to suffer damages including, but not limited to, compensatory damages. 49. Defendant's continued negligent and material representations and omissions of material facts are malicious, reckless, wanton, oppressive and fraudulent justifying an award of punitive damages in addition to the damages detailed and requested herein, Page 9 of 12Count V1. Intentional Infliction of Emotional Distress 50. The allegations contained in this Complaint are incorporated by reference herein as though fully alleged in the following paragraphs. 51. Defendant's continued intentional and reckless conduct is extreme and outrageous under the circumstances as it goes beyond the bounds of common decency and is atrocious and intolerable to the ordinary person 52, Asa result of Defendant’s continued intentional and reckless conduct, Plaintiff's have experienced severe emotional distress of such an intensity and duration that no ordinary person would be expected to tolerate it such as the foreclosure on Mr. King’s primary residence and the damage to his credit ratings and scores caused by Defendant’s intentional and reckless conduct. 53. Defendant's continued intentional, reckless, extreme and outrageous conduct has directly and proximately caused Plaintiffs to suffer damages including, but not limited to, compensatory damages. 54. Defendant’s continued extreme and outrageous conduct is malicious, reckless, wanton, oppressive and fraudulent justifying an award of punitive damages in addition to the damages detailed and requested herein. t VII, Violations of the U 55, The allegations contained in this Complaint are incorporated by reference herein as though fully alleged in the following paragraphs. 56. Defendant's continued conduct has violated the New Mexico Unfair Trade Practices Act’s (“UTPA") prohil jon against unfair or deceptive trade practices and unconscionable trade practices. NMSA 1978, § 57-12-1 et al Page 10 of 1257. Defendant's continued conduct includes the following acts specifically declared unlawful pursuant to the UTPA, false or misleading oral and written statements and other representations or omissions Defendant knowingly made that may, tended to and has deceived Plaintifs and includes, but is not limited to: a causing confusion or misunderstanding as to affiliation, connection or association with or certification by another; b. representing that a person has a sponsorship, approval, status, affiliation or connection that the person does not have: c. making false or misleading statements of fact conceming the reasons for, existence of or amounts of price reduction; 4. using exaggeration, innuendo or ambiguity as to a material fact or failing to state ‘a material fact if doing so deceives or intends to deceive; ¢. stating that a transaction involves rights, remedies or obli involve; £._ stating that services are needed if they are not needed. NMSA 1978, § 57-12-2(DY(3), (5), (11), (14)-(16) 58. Defendants conduct also violated the UTPA’s prohibition against unconscionable trade practices as Defendant's conduct a. took advantage of the lack of knowledge, ability, experience or capacity of Plaintiffs to a grossly unfair degree, and to the detriment of Plaintiffs, and, b. resulted in a gross disparity between the value received by a person and the price paid. NMSA 1978, § 57. Page 11 of 1259, Defendant’s continued violations of the UTPA have directly and proximately caused Plaintifs to suffer damages including, but not limited to, actual damages and attorney fees and costs 60. Moreover, Defendant's continued violations of the UTPA are willful, justifying an award of treble the actual damages Plaintiffs have incurred as a result of Defendant's conduct. WHEREFORE, Plaintiffs request this Court enter judgment in their favor on their Complaint, awarding Plaintiffs damages including, but not limited to, compensatory, statutory, consequential and punitive damages, awarding attorney fees and costs and for such further relief as this Court deems proper. Respectfully submitted, RENEE N. ASHLEY, ESQ. ATTORNEY ATLAW si Renee N. Ashley Renee N. Ashley 11101 Faye Ave. NE Albuquerque, NM 87112 Telephone: (505) 908-0336 Facsimile: (505) 214-5404 Email: reneenashleylaw@gmail.com Attorney for Plaintiffs Page 12 of 12Exhibit A Wanda Johnson, Primary Election, House District 05 ‘Scope of Work Draft Prepared by Keegan King Prepared March 7, 2014 “The folowing proposed scope of work is to design and implement Wanda Johnson's Primary campaign for NM State House District 5, ‘Scope of Work and Staffing, March 15-June 15, 2012 General Consulting + To create the overall campaign message, strategy, timeline and budget + To provide regular strategic consulting for the duration of the campaign: We will prepare a campaign timeline ‘with tasks, deadlines and budget covering all components of your campaign. * To use my political capital in any way possible to help your candidacy. Campaign Management * To provide management of the campaign timeline and budget. = To identify, sign and negotiate with all vendors, subject to final approval by the candidate. Vendor services may include, but are not limited to, poling, direct mail and other graphic design and ive phone calls. To coordinate all campaign vendors. To conduct pro-active and re-active media work. To provide fundraising planning assistance. Manage and help recruit campaign staf. To develop and prioritize a lst and plan for outreach to Issue groups, unions, business leaders, key local leaders, etc. + Develop your candidate endorsers lis. Field and GOTV = To design the field, absentee voting and GOTV program for the campeign. + To develop a voter target universe for the campaign. + Tohelp identiy afield coordinator and supervise the field coordinator. Candidate Responsibilities The candidate will commit to: Meet voters through doorknocking and phoning. ‘© Reise the necessary funds to implement a winning campaign. Invaddition, the candidate will help provide: ‘A field managerifeld coordinator who will volunteer/oe hired to: ‘Implement the pelition, fied, absentee and GOTV program for the campaign + To manage the voter fle and data entry for the campaign and to create walksheets, phonesheets and maps for the campaign; + Identiy, recruit and manage volunteers throughout the campaign A Treasurer to acquire all fundraising lists, manage the database, produce call sheets, make all the deposits, manage the expenses and campaign finance report. “In the early part of the campaign, the fleld/volunteer coordinator also does much of the grassroots fundraising efforts ‘and can be combined into one person.Fees For the period, March 15- June 15, 2012, the total fee is: ‘Strategy, Budget, Timeline, & Campaign Plan $2,000.00 March 15 - April 81,750.00 ‘Apt $3,500.00 May $3,500.00 June 15 (4/2 mo) $1,750.00 ‘Subtotal $12,500.00 NM Gross Receipts Tax ~ 7% $875.00 Grand Total $13,378.00 Reimbursements wil also be bundled together and invoiced on @ monthly basis. Confidentiality ‘Campaign strategy, message, end research obtained during this campaign wil remain confidential. Atsaya Consulting retains the right to make discrete use of data collected from this campaign, including donor and volunteer lists. All planning documents, designed or produced work, scripts and other materials are subject to approval by the clientExhibit B ‘Wanda Johnson, General Election, House District 05 ‘Scope of Work Draft Prepared by Keegan King Prepared June 10, 2014 “The folowing proposed scope of work is to design and implement Wanda Johnson's General campaign for NM State House District 5 Scope of Work and Staffing, July 1, 2014 - November 4, 2014 General Consulting + To create the overall campaign message, strategy, timeline and budget. + To provide regular strategic consulting for the duration of the campaign: We will prepare a campaign timeline with tasks, deadlines and budget covering all components of your campaign. + Touse my political capital in any way possible to help your candidacy. Campaign Management * To provide managernent of the campaign timeline and budget. + Tovidentiy, sign and negotiate with ail vendors, subject to final approval by the cancidate. Vendor services may include, but are not limited to, poling, direct mail and other graphic design and ive phone cals To coordinate all campaign vendors. To conduct pro-active and re-active media work. To provide fundraising planning assistance. Manage and help recruit campaign stafl, ‘To develop and prioritize a lst and plan for outreach to issue groups, unions, business leaders, Key local leaders, et, + Develop your candidate endorsers lis. Field and GOTV = To design the field, absentee voting and GOTV program for the campaign. = To develop a voter target universe for the campeign = Tohelp identiy afield coordinator and supervise the field coordinator. Candidate Responsibilities The candidate will commit to: +) Meet voters through doorknacking and phoning + Raise the necessary funds to implement a winning campaign. In addition, the candidate will help provide: ‘A field managerfield coordinator who will volunteer/be hired to: (S68 Job Description) Implement the petition, fld, absentee and GOTV program for the campaign: = Tomenage the voter fle and data entry for the campaign and to create walksheets, phonesheets and maps for the campaign: = Identity, recruit and manage volunteers throughout the campaignFees For the period, July 1, 2014 to November 4, 2014, the total foe is: ‘Strategy, Budget, Timeline, & Campaign Plan 2,000.00 July (1/4 month) 875.00 ‘August 7,750.00 ptember a Een ‘October 3,500.00, November (1/4 mo) 875.00 ‘Subtotal ($72,500.00 NM Gross Receipts Tax ~7% $875.00 Grand Total $13,375.00 Reimbursements wil also be bundled together and invoiced on a monthly basis. Confidentiality Campaign strategy, message, and research obtained during this campaign wil remain confidential. Atsaya Consulting reiains the right to make discrete use of data collected from this campaign, including donor and volunteer ists. All planning documents, designed or produced work, scriots and other materials are subject to approval by the client