Couple sues to enforce settlement with contractor

Andrea Dearden Aug. 20, 2012, 11:10am

An O'Fallon company is accused of committing an "outrageous" act of fraud to avoid paying a $10,000 court settlement.

Amanda Ohlendorf and Michael Ohlendorf filed a complaint against FM Contracting Inc. and FM Exteriors Inc. on July 19 in St. Clair County Circuit Court.

In November 2000, the Ohlendorfs say they entered into a settlement agreement that required FM Contracting to pay them $10,000. The first half of that payment was to be made at the time of the settlement with the remaining $5,000 to be paid on or before Feb. 15, 2010, the complaint states. If the total was not paid, the Ohlendorfs say the defendant agreed to pay a penalty of $500 per month.

The Ohlendorfs say FM Contracting made the first $5,000 payment as agreed but failed to make the second required payment. The couple says the company did eventually pay an additional $2,500. The Ohlendorfs contend the defendant is in default of the settlement agreement and is, therefore, liable for court costs and attorney fees associated with collecting the full amount owed.

In April 2011, an attorney hired by the Ohlendorfs sent a letter to FM Contracting demanding payment in full, according to the lawsuit. One month later, the Ohlendorfs say FM Contracting was legally dissolved but say a new, identical business was created under the name FM Exteriors. The couple says a motion for enforcement and confession of judgment was filed against the company in August 2011 with the judgment amount listed as $12,500. The Ohlendorfs allege that judgment remains unsatisfied today.

The couple accuses FM Contracting and FM Exteriors of fraudulent conveyances. They claim owner Darryn Ficken filed bankruptcy under FM Contracting and then opened FM Exteriors which allegedly provides the exact same services at the same location, with the same contact information, same employees, identical displays, samples and equipment. They claim Ficken lied under oath about the intent of the transfer. The Ohlendorfs contend the bankruptcy and transfer were simply a way to avoid paying the settlement owed to the couple. They call the act "intentional, willful and outrageous, due to its evil motive and reckless indifference."

The Ohlendorfs are asking FM Exteriors be ordered to pay the judgement in full along with $200,000 in punitive damages, court costs and attorney fees. They are represented by attorney Devin A. Sauer of Clayton.

St. Clair County Circuit Court Case No. 12-L-368

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