Counterclaim filed in $1.2 million lawsuit

WRT II Inc., Wildlife Recapture Taxidermy and the companies’ three principals, Kevin Neidigh, Ann Siefke and Milfred Siefke, filed a response to a $1.2 million lawsuit in United States District Court in Virginia Feb. 5. The response seeks dismissal of the suit and asks the court to award the defendants damages totaling $720,000 in a counterclaim as well as attorney’s costs and fees and “such other relief as the court deems appropriate.”

The original suit, brought by Virginia-based Evolve Custom dba Createk, alleges WRT and the named individuals breached an agreement between the parties by failing to pay for more than $400,000 worth of ordered product and for failing to meet a minimum guaranteed order quantity of $1.2 million prior to Createk’s termination of the contract in December 2015. Createk also alleged the company’s three named officers improperly transferred funds from the company accounts in a violation of their fiduciary duties.

In the response, attorney Grant Penrod moved to have Wildlife Recapture Taxidermy, Neidigh and the Siefkes be dismissed from the case on the grounds that the contract was between Createk and WRT II Inc. Under the laws of the state of Virginia, which govern the contract, liability should be limited to the corporate entity and not extend to assumed business names and individual shareholders or members of the corporation.

“The plaintiff’s counts III, IV and V allege liability against the individual defendants on the grounds they exercised control over Defendant WRT II Inc., and that they violated their fiduciary obligations by making payments other than to the plaintiff and that they permitted Defendant WRT II Inc. to be dissolved,” Penrod wrote. “The alleged facts are insufficient under Virginia law to support a cause of action to ‘pierce the corporate veil’ and hold the individual defendants personally liable for the acts of the corporation.”

The products in dispute are habitat displays installed in Dick’s Sporting Goods stores in several locations. WRT II Inc., was contracted by the stores to create the lifelike displays in the stores and, according to court records, subcontracted Createk to create the habitat portion of the displays. 

Createk claimed, in the original suit, to have delivered and installed habitat displays to stores in Troy, Mich., Charleston, S.C., and Polaris, Ohio. The invoices for those projects, they claim, were never paid. WRT admitted to not paying the invoices for the work, but challenged the plaintiff’s claims of having completed the projects in accordance with the terms of the contract.

“The allegations contained in Paragraph 16 are denied,” Penrod wrote in the answer. “Createk delivered but did not install displays in Troy, Mich., and Charleston, S.C. Createk did not deliver or install a display in Polaris, Ohio. Createk sent invoices to WRT II Inc. for displays in Troy, Mich., and Charleston, S.C. Createk did not send an invoice to WRT II Inc. for the display in Polaris, Ohio.”

The dispute regarding installation of the displays is the basis for WRT II Inc.’s counterclaim. The defendants/counterclaimants assert Createk breached the contract by failing to install the displays delivered to the stores in Michigan and South Carolina. That breach, they further allege, resulted in damages exceeding $400,000 for equipment rental and payroll costs to install the habitats. 

“The plaintiff breached the supply agreement by failing to install the product that it supplied,” Penrod wrote. “Defendant WRT II Inc., was damaged by the plaintiff’s breach because it had to rent equipment to unload and install the product that the plaintiff supplied and it had to pay employees to install the product. Defendant WRT II Inc.’s damages to rent equipment and pay employees total $420,000.”

Additionally, WRT claims to have incurred an additional $300,000 in damages due to Createk’s failure to deliver product to stores in Polaris, Ohio, and Asheville, N.C.

“The plaintiff breached the supply agreement by failing to supply product to the Polaris, Ohio, and Asheville, N.C., locations,” the countersuit read. “Defendant WRT II Inc., was damaged by the plaintiff’s breach because it had to obtain product from an alternate vendor for those two locations at a cost of $300,000.”

No hearing dates had been scheduled in the case as of Thursday morning, Feb. 11, 2016.