1 Roy Warden

2 1015 W. Prince Road

3 Suite 131-182
4 Tucson, Arizona 85705
5 roywarden@hotmail.com
6
7 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA
8 IN AND FOR THE COUNTY OF PIMA
9

ROY WARDEN, ) Case No. C20095747

Plaintiff, IN FORMA )
)
PAUPERIS SECOND AMENDED COMPLAINT
)
Vs FOR COMPENSATORY AND EXEM-
)
PLARY DAMAGES FOR BREACH
)
OF ORAL CONTRACT / PROMISE /
SUZANNE DUGAN, CASSANDRA KING, )
PROMISSORY ESTOPPEL
BETTE GLOVER, RATHBUN REALTY, )
)
INC. and DOES 1-10 THE HONORABLE STEPHEN VILLA-
)
RREAL
)
Defendants.
)
)
10

11 COMES NOW ROY WARDEN, Plaintiff in the above entitled action, with his
12 Second Amended Complaint for Damages against the Defendants, named and unnamed
13 above, and as grounds therefore alleges:
14 I. INTRODUCTION

15 1. This action for promissory estoppel arises out of breach of an oral contract /
16 promise Defendants made to Plaintiff on or about July 26, 2006. Plaintiff, who
17 acted in reliance upon Defendants’ promise, contends the doctrine of promissory
18 estoppel, as set forth in Arizona law1, binds the parties to their agreement, and
19 that all Plaintiff’s damages alleged herein arise out of Defendants’ failure to honor
20 their promise / oral contract..
21 II. JURISDICTION & VENUE
22 2. This court has jurisdiction over this action under Article VI § 14 of the Arizona
23 Constitution as the amount in controversy exceeds $10,000 (ten thousand dollars).

1
See paragraphs 45-48.

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 1 Venue is proper in Pima County, as all of the acts complained of occurred in Pima
2 County Arizona.
3 III. REQUEST FOR JURY TRIAL
4 3. Pursuant to Rule 38(a) of the Rules of Civil Procedure, Plaintiff requests a trial by
5 jury.
6 IV. IDENTITY OF THE PARTIES

7 4. Plaintiff Roy Warden is a citizen of the United States, and was a resident of Pima
8 County Arizona at all times relevant to this complaint.
9 5. Defendant Suzanne Dugan, residing at 4602 E. Glenn Street, Tucson Arizona, is
10 a former landlord of Plaintiff Roy Warden, is believed to be a citizen of the
11 United States and was a resident of Pima County Arizona at all times relevant to
12 this complaint.
13 6. Defendant Cassandra King, employed by Defendant Rathbun Realty, Inc. is
14 believed to be a citizen of the United States and a resident of Pima County at all
15 times relevant to this complaint.
16 7. Defendant Bette Glover, employed by Defendant Rathbun Realty, Inc. is
17 believed to be a citizen of the United States and a resident of Pima County at all
18 times relevant to this complaint.
19 8. Defendant Rathbun Realty, Inc., an Arizona corporation with offices located at
20 7447 E. 22nd Street, Tucson Arizona, was employed by, and acted as, Agent for
21 Defendant Suzanne Dugan at all times relevant to this complaint.
22 9. Does 1-10 are believed to be Rathbun Realty, Inc. employees, Tucson City
23 employees, Pima County employees, Arizona State employees, and others, who
24 advised and/or assisted Defendants in the commission of the unlawful act which
25 is the subject of this lawsuit.
26 V. FACTS AND ALLEGATIONS

27 10. On July 26, 2006 at approximately 10:30 am, after a series of acrimonious Special
28 Detainer Actions initiated by all Defendants, Plaintiff was served a Writ of
29 Restitution which required him to immediately depart his residence, located at
30 4602 E. Glenn Street, Tucson Arizona 85712.

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 1 11. Three Rathbun employees were present when the Writ was served, including
2 “Cris,” “Matt,” and “Casey,” a Rathbun property manager believed to be named
3 Rathbun Defendant Cassandra King, as clearly set forth upon the Writ.
4 12. Immediately upon exiting the premises Plaintiff exercised his right to clean up,
5 pack, and move his personal belongings which were still located within his former
6 residence.
7 13. The Rathbun employees, who had begun changing the locks, told Plaintiff they
8 could not delegate a property manager that day to supervise Plaintiff while he
9 exercised his right to pack his belongings, move out and clean up.
10 14. After more discussion Plaintiff asked the Rathbun employees to set a time and a
11 date as to when he could return to his former residence to effect his move out and
12 clean up because, as Plaintiff explained to them in sum and substance: “I have to
13 arrange for storage, packing boxes, a mover, a truck and someone to help me
14 pack, move my belongings and clean the premises.”
15 15. After additional discussion, the Rathbun employees informed Plaintiff that “Matt”
16 would grant Plaintiff access to the premises for a three day period of time com-
17 mencing the following day at 8:00 am on July 27, 2006 and ending at 4:00 pm on
18 July 29, 2006.
19 16. In reliance upon Defendant Rathbun’s promise that Plaintiff would have access to
20 the premises located at 4602 E. Glenn Street, Tucson Arizona 85712 to com-
21 mence his move out and clean up the following day, Plaintiff subsequently: (1)
22 cancelled an appointment he had to meet with a client on July 27, 2006, (2) made
23 a series of phone calls and eventually employed the services of a workman to
24 help pack, move and clean, (3) obtained the use of a pickup truck, and (4) visited
25 several storage sites in order to evaluate which one would be able to provide the
26 air conditioned storage necessary to protect Plaintiff’s family heirlooms, antiques,
27 historical photographs and negatives, custom designed oriental rugs, custom
28 design work, wool color samples and fine art collection.
29 17. At approximately 8:00 am on July 27, 2006 Plaintiff arrived at 4602 E. Glenn
30 Street, met with Rathbun employee “Matt” and, as per the agreement made the
31 previous day, gained entrance into the premises.

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 1 18. “Matt” told Plaintiff that (1) he had other company business to attend to and (2)
2 he would return at approximately 4:00 pm to again secure the premises until the
3 morning of the following day, when Plaintiff could return and resume his move
4 out and clean up as per the agreement.
5 19. Shortly after “Matt” departed, Plaintiff’s workman arrived with a pickup truck.
6 20. Plaintiff and his workman were within the premises commencing move out and
7 clean up procedures when Defendant Dugan (1) telephoned the Tucson Police
8 Department and reported Plaintiff was trespassing, and (2) requested the police
9 department to remove Plaintiff from the property, thus breaching the agreement
10 her agent, Defendant Rathbun, made with Plaintiff on the previous day.
11 21. Tucson Police Department Officers informed Plaintiff that the Defendants “...did
12 not want to honor their verbal agreement,” and gave Plaintiff 5 minutes to vacate.
13 See Exhibit One, TPD Incident Report #0607270435.
14 22. Shortly thereafter Plaintiff faxed a letter to Defendant’s Rathbun’s counsel, Blyth
15 Edmonson, which (1) requested an inventory and return of his property and (2)
16 requested permission to return to clean the premises because Plaintiff had no
17 money to pay for a professional cleaning crew.
18 23. Subsequent to Plaintiff’s departure from 4602 E. Glenn, Defendants (1) seized his
19 belongings, (2) refused to allow him re-entry, and (3) refused to return his
20 property or allow him opportunity to clean up the premises, resulting in
21 Defendant Rathbun assessing Plaintiff several thousands dollars in clean up,
22 moving and storage fees, Plaintiff’s loss of all his worldly belongings, the
23 infliction of consequent and significant emotional distress, etc.
24 24. On August 09, 2006 Plaintiff faxed a letter to Defendant Rathbun which (1)
25 reminded them of their obligations under A.R.S. 33-1368 (F) which provided for
26 the return of Plaintiff’s clothing, computer and other items needed for his
27 employment, (2) informed them Plaintiff would pay for all ongoing storage fees
28 while the legal issues between Plaintiff and Defendants were litigated, and (3)
29 provided them Plaintiff’s new phone number and mailing address.
30 25. Sometime later, in compliance with the offer Plaintiff made on August 09, 2006,
31 Plaintiff went to Defendant Rathbun’s office with several hundred dollars to pay

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 1 for the ongoing costs of storage; however Defendant Rathbun refused to accept
2 Plaintiff’s payment, and demanded instead payment in full for the costs of
3 changing the locks, moving, cleaning, storage, etc. which amounted to more than
4 several thousand dollars.
5 26. Subsequently; Plaintiff met with a Rathbun employee at the storage facility and
6 recovered his computer, printer, monitor and some of his clothing as provided by
7 A.R.S. 33-1368 (F); however the Rathbun employee prevented Plaintiff from
8 taking any other items from the storage facility such as valuable fine art, oriental
9 rugs, family photographs, and personal memorabilia, explaining, “I am only
10 authorized to let you take items you need for work.”
11 27. On or about September 27, 2006 Plaintiff spoke with “Sharon,” a Rathbun em-
12 ployee, who informed him, (1) Rathbun planned to store Plaintiff’s property for
13 “the next several months,” (2) Rathbun would release Plaintiff’s property upon
14 payment of the cost of changing the locks, cleaning, moving and storage fees and
15 (3) Rathbun would contact Plaintiff should there be any change in their plans.
16 28. During their conversation, Plaintiff told “Sharon” he would arrange a loan to pay
17 for the cost of changing the locks, moving, cleaning, storage, etc., and again
18 contact Rathbun within a month to pay all fees due and to recover his belongings.
19 29. Approximately three and a half weeks later Plaintiff secured a loan, called Rath-
20 bun and left a message for “Sharon” which stated Plaintiff was now prepared to
21 pay all fees due and to recover his property.
22 30. The following day “Sharon” called Plaintiff’s home and left a message that Plain-
23 tiff’s property was ready to be picked up.
24 31. The next day, on or about October 26, 2006, Plaintiff called Rathbun to make an
25 appointment to pay the requisite fees and to pick up his belongings; however
26 Plaintiff was informed that “Sharon” no longer worked there.
27 32. During this conversation Plaintiff spoke with “Susan,” and was shocked and
28 utterly dismayed to learn Rathbun had “disposed” of his property.
29 33. On November 03, 2006 Plaintiff sent a letter to Rathbun requesting the inventory
30 of his property, the name and location of the facility where his property was

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 1 allegedly “disposed” and the names of the Rathbun employees who had taken
2 Plaintiff’s property from storage.
3 34. On November 10, 2006 Plaintiff sent a “follow up” letter to Rathbun, again
4 requesting the location of his “disposed” property, so Plaintiff could attempt to
5 recover his property, which included “…priceless family memorabilia, including
6 irreplaceable family photos, and tens of thousands of dollars of art, antiques, elec-
7 tronics, stereos, computer equipment, clothing, books, etc” as well as numerous
8 hand knotted oriental carpets, wool color samples and design work.
9 35. On or about November 29, 2006 Plaintiff received a letter written by Defendant
10 King confirming Defendants had “thrown away” Plaintiff’s property, and that
11 “(a)s far as items worth thousands of dollars, we did not see anything of the sort.”
12 36. Significantly; Defendant King’s letter dated November 29, 2006 acknowledged
13 receipt of Plaintiff’s letter dated August 09, 2006 in which Plaintiff offered to pay
14 the ongoing costs of storing his property while the issues between them were liti-
15 gated.
16 37. On or about December 21, 2006 Plaintiff accepted Rathbun’s invitation to go to
17 Rathbun’s office to recover several items that had escaped destruction. Plaintiff
18 took every item offered him.
19 38. On November 14, 2007 Plaintiff filed in Pima County Superior Court his first
20 Complaint for Damages against Suzanne Dugan, Cassandra King and Rathbun
21 Realty, Inc. Plaintiff’s first complaint did not plead breach of oral contract.
22 39. Because Plaintiff did not have the money to depose the various Defendants or
23 otherwise proceed with the Pima County Superior Court case he filed against all
24 Defendants on November 14, 2007, on November 07, 2008, upon Plaintiff’s
25 motion, the Court dismissed Plaintiff’s first Complaint for Damages against the
26 above named Defendants, without prejudice, pursuant to Rule 38.1 (d).
27 40. On July 22, 2009 Plaintiff filed in Pima County Superior Court a Complaint for
28 Compensatory and Exemplary Damages for Breach of Oral Contract, Abuse of
29 Process, Conspiracy, Conversion and Intentional Infliction of Mental Distress.

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 1 41. On November 09, 2009, Plaintiff filed in Pima County Superior Court Plaintiff’s
2 First Amended Complaint which corrected several grammatical, spelling and
3 typographical errors and deleted Conversion as a cause of action.
4 42. In compliance with an Order of the Court dated January 24, 2011, Plaintiff herein
5 submits his Second Amended Complaint, deleting several causes of action, as set
6 forth above.
7 VI. COUNT ONE: BREACH OF ORAL CONTRACT / PROMISE /
8 PROMISSORY ESTOPPEL
9
10 43. Plaintiff repeats and re-alleges each and every allegation contained in paragraphs
11 1-42 as fully set forth within.
12 44. On July 27, 2006 Defendants’ breached their oral contract / promise to Plaintiff as
13 set forth in paragraphs 10-23, resulting in Plaintiff’s loss of personal items; a
14 direct and proximate cause of all Plaintiff’s damages alleged herein.
15 VII. DEFENDANTS ARE BOUND TO THEIR AGREEMENT
16 BY THE DOCTRINE OF PROMISSORY ESTOPPEL
17
18 45. In Arizona “...(t)he elements of (promissory) estoppel...are well settled; they are,
19 essentially: conduct by which one intentionally...induces another to believe and
20 have confidence in certain material facts, which inducement results in acts of
21 reliance thereon, justifiably taken, which cause injury to the party thus relying.”
22 Graham v Asbury , 112 Ariz. 184. (1975)
23 46. Furthermore; “(t)he elements of promissory estoppel are a promise, which the
24 promissor should reasonably foresee would cause the promisee to rely, upon
25 which the promisee actually relies to his detriment.” Contempo Const. V. Mt.
26 States T & T Co., 153 Ariz 279 (App.)
27 47. Moreover; “Detrimental reliance is an essential ingredient of estoppel without
28 which there can be no estoppel.” Matter of Estave of Musgrove, 144 Ariz. 168.
29 48. And finally, in State Ex Rel. Romley v. Gaines, 205 Ariz 138 (App.) the Court
30 cited the Restatement (Second) of Contracts Section 90 (1981): “A promise which
31 the promissor should reasonably expect to induce action or forbearance on the
32 part of the promisee...and which does induce such action or forbearance is binding
33 if injustice can be avoided only by enforcement of the promise.”

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