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Pankey v. Western Arkansas Rock, Inc.

United States District Court, W.D. Arkansas, Texarkana Division

January 28, 2015

TERRELL PANKEY and SMITH COUNTY STONE, LLC, PLAINTIFFS
v.
WESTERN ARKANSAS ROCK, INC., AMELIA MINERALS, LLC, DAVID POTTER, LARRY DUFFIELD, LUKE B. DUFFIELD, RANDY DUFFIELD, and MABLE EARNESTINE DUFFIELD as Administratrix of the Estate of Billy Joe Duffield, Deceased, DEFENDANTS

For Terrell Pankey, Smith County Stone, LLC, Plaintiffs: James Sample Robertson, Jr., LEAD ATTORNEY, Wilson Robertson Cornelius P.C., Tyler, TX.

For Western Arkansas Rock, Inc., David J. Potter, Defendants: David Jimmie Potter, David J. Potter and Associates, Texarkana, TX; Joshua Landes Potter, The Potter Law Firm, Texarkana, AR.

For Amelia Minerals, LLC, Larry Duffield, Defendants: David A. Grace, LEAD ATTORNEY, Hardin & Grace, PA, North Little Rock, AR; Randy P. Murphy, LEAD ATTORNEY, Anderson, Murphy & Hopkins, L.L.P., Little Rock, AR; Tony A. DiCarlo, III, Anderson Murphy Hopkins L.L.P., Little Rock, AR.

For Luke B. Duffield, Defendant: James Albert Streett, LEAD ATTORNEY, Robert M. Veach, Streett Law Firm P.A., Russellville, AR; Alex Graham Streett, Streett Law Firm, P.A., Russellville, AR; Tony A. DiCarlo, III, Anderson Murphy Hopkins L.L.P., Little Rock, AR.

For Randy Duffield, Defendant: David A. Grace, LEAD ATTORNEY, Hardin & Grace, PA, North Little Rock, AR; Tony A. DiCarlo, III, Anderson Murphy Hopkins L.L.P., Little Rock, AR.

For Mable Earnestine Duffield, Administratrix of the Estate of Billy Joe Duffield, deceased, Estate of Billy Joe Duffield, Defendant: Tony A. DiCarlo, III, Anderson Murphy Hopkins L.L.P., Little Rock, AR.

Foe Western Arkansas Rock, Inc., David J. Potter, Western Arkansas Rock, Inc., Counter Claimants: David Jimmie Potter, David J. Potter and Associates, Texarkana, TX; Joshua Landes Potter, The Potter Law Firm, Texarkana, AR.

For Terrell Pankey, Smith County Stone, LLC, Terrell Pankey, Smith County Stone, LLC, Counter Defendants: James Sample Robertson, Jr., LEAD ATTORNEY, Wilson Robertson Cornelius P.C., Tyler, TX.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

HON. BARRY A. BRYANT, UNITED STATES MAGISTRATE JUDGE.

Before the Court is the Motion of Defendants Western Arkansas Rock, Inc. (" WAR") and David J. Potter (collectively, " Separate Defendants") for Summary Judgment. ECF No. 81. This Motion was filed on October 3, 2014. Id. On October 10, 2014, Plaintiffs responded. ECF No. 85. On October 14, 2014, Separate Defendants replied. ECF No. 88. This Motion was referred to the undersigned for a report and recommendation, and this Motion is now ripe for consideration.

I. Background:

On May 6, 2013, Plaintiffs[1] filed their Complaint in this action. ECF No. 1. In this Complaint, Plaintiffs raise three causes of action against Separate Defendants: (A) breach of contract; (B) interference with business relations; and (C) conspiracy. Id. Plaintiffs also seek a declaratory judgment reinstating their contract with Separate Defendants. ECF No. 1 ¶ ¶ 23-25. Plaintiffs claim David Potter is liable under the alter ego theory for the wrongful conduct of WAR. Id. ¶ 43. Plaintiffs have requested damages for loss of rock inventory, lost profits, loss of property, and emotional distress. Id. ¶ ¶ 58-66. Plaintiffs have also requested punitive damages. Id.

A. Mining Lease: 2008

This case arises out of a contract dispute. ECF No. 1. On March 6, 2008, SCS entered into a contract with WAR wherein WAR leased parcels of land in Sevier County, Arkansas to SCS for the purposes of mining, grading, stockpiling, loading, and removing rock from a rock quarry known as the HMB Quarry. Id. ¶ ¶ 14-15. The contract was entitled the " Mining Lease." Id.

The Mining Lease had a five (5) year term beginning on March 4, 2008 and ending on February 28, 2013. ECF No. 1-1 ¶ 7(a). The Mining Lease provided for a $5, 000.00 advance royalty payment to WAR and production royalties based upon the tonnage mined and removed from the HMB Quarry. Id. ¶ 8(a). Regardless of production, the minimum annual royalty payment was $30, 000.00. Id.

In the Mining Lease, there was a ten (10) day " cure period." ECF No. 1-1 ¶ 29(a). It provided the following:

If SMITH COUNTY STONE shall default in any payment of royalty to Western Arkansas Rock, Inc., or if SMITH COUNTY STONE shall fail to comply with any of the covenants and agreements contained in this lease, and such default or noncompliance shall continue for a period of ten (10) days after written notice thereof shall have been given Western Arkansas Rock, Inc. to SMITH COUNTY STONE, then Western Arkansas Rock, Inc. shall have the right at any time after said (10) day period to terminate this lease by written notice to that effect to SMITH COUNTY STONE, and all rights of ...

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