Case 1:19-cv-01089-N Document 12 Filed 01/03/20 Page 1 of 5 PageID #: 380

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

John and Allison Peebles )

)
Claimants, )
)
v. ) CV:1:19-cv-01089
)
The Terminix International )
Co., LP. )
)
Respondents. )

CLAIMANTS’ SUPPLEMENTAL MOTION TO CONFIRM AWARD, AND

RESPONSE IN OPPOSITION TO TERMINIX’S MOTIONS TO VACATE

John and Allison Peebles (“the Peebles”) file the

following brief supplement to its motions for sanctions, and

response in opposition to Terminix’s objection to

conformation of the arbitrator’s award and it its motion to

vacate:

In our zeal to get the award of the arbitrator confirmed

as quickly as possible for the benefit of the Claimants, to

promptly respond in opposition to Terminix’s objection to

confirmation and motion to vacate, and to file our motion for

entry of sanctions, we neglected to cite yet another case

from the Southern District of Alabama that supports our

position and refutes the position taken by Terminix.

In January, 2019, in SE Property Holdings, Inc., v.

Judkins, 2019 WL 177981, Judge Moorer of the United States

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District Court for the Southern District, Southern Division,

awarded punitive damages and attorney’s fees to the

plaintiff, upon his finding of fact that the Defendants

“consciously or deliberately engaged in fraud, wantonness,

and malice with regard to [the plaintiff].” Id. at 5, 13

(emphasis added). In support of his holding, Judge Moorer

first noted that, in his opinion, the Alabama Uniform

Fraudulent Transfer Act (“AUFTA”) authorizes the Court to

award “any other relief the circumstances require,” which

must include attorney’s fees. Id. at 11. Moreover, Judge

Moorer ultimately held that “[e]ven if the AUFTA did not give

courts broad discretion to award any relief the circumstances

require, Alabama precedent allows for recovery of attorneys’

fees in the presence of ‘fraud, willful negligence, or

malice.’ Reynolds v. First Ala. Bank of Montgomery, N.A., 471

So. 2d 1238, 1243 (Ala. 1985)(emphasis added). As discussed,

the Court found fraud and malice in this case.” Id. (emphasis

added).

In the arbitral award, the arbitrator held that,

Terminix’s wrongful conduct included its “failure to disclose

to Claimants, or to their predecessors in title, the lack of

a proper initial treatment and subsequent treatments”… and

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“[a]t all times, Terminix had far superior knowledge of these

material facts, and given the technical nature of the services

performed, Claimants and others have no reasonable basis to

have such knowledge”… and “Terminix had the duty to disclose

such facts, obligations and deficiencies to Claimants as they

became known (or should have been known) by Terminix.” See

Arbitration Award, p. 3, attached hereto as Exhibit 1. In

addition, the Arbitrator found that “[g]iven, inter alia, the

deficient initial treatment, the long term nature of the known

deficiencies in treatment inspection and treatment (both

initially and during the time the contract between the parties

was in effect), the superior knowledge of Terminix regarding

the specific conditions and lack of proper treatment at the

Property, and the knowledge that Terminix had of the type of

serious problems such actions and inactions on their part may

very well cause (and in fact did cause in this case), as well

as certain of the other reasons argued by Claimants, the

undersigned determines that punitive damages are proper.” Id.

In other words, the Arbitrator described his findings of fraud

and malice as grounds for his entry of punitive damages.

Finally, just as Judge Moorer held in SE Property Holdings,

supra, the present Arbitrator held that “[f]or the same

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reasons that punitive damages are determined to be proper,

[i.e., malice and fraud] the undersigned believes equity

requires the payment of [attorney’s] fees by Terminix.” See

Id., p. 4, footnote 4.

WHEREFORE, for the reasons stated in their previously

filed pleading and also for the reasons stated hereinabove,

the Peebles respectfully request that this Honorable Court

enter an Order confirming the arbitrator’s award, denying

Terminix’s objection to confirmation, denying Terminix’s

motion to vacate, and Order sanctions against Terminix. In

addition, the Peebles respectfully request the entry of

statutory interest on the arbitrator’s award, calculated from

the entry of judgment.

/s/ Thomas Campbell

Thomas Campbell (CAM036),
Attorney for Claimants, John and
Allison Peebles.
OF COUNSEL:
CAMPBELL LAW PC
5336 Stadium Trace Pkwy
Suite 206
Birmingham, AL 35244
P- (205) 278-6650
F- (205) 278-6654

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CERTIFICATE OF SERVICE

I hereby certify that on this 3rd__ day of December

2020, I served a true and correct copy of the foregoing to
the following parties of record via Electronic Mail:

M. Christian King
Logan Matthews
Lightfoot, Franklin & White, LLC
The Clark Building
400 North 20th Street
Birmingham, AL 35203
T(205)581-0700
F(205)581-0799

/s/ Thomas Campbell

OF COUNSEL