Case 1

Court Document #1

This is Document 2 which is the "second" lawsuit filed on April 23, 2003. The Heffingtons were legally advised, however, to voluntarily dismiss it in May, 2003, pending the decision by the Kansas Court of Appeals in their first lawsuit. They still have the option to refile it again within six months, and have it combined with the first suit (Third Amended Petition - Case No. 01 C 0771 ).

The Heffingtons were legally advised that if they did not name all parties who had anything to do with their claims, they could lose if their case went to trial. This is to say that they would collect nothing in damages if a jury found that the attorneys were more at fault than their clients, and the Heffingtons had failed to name them as defendants. One honest attorney told them that if the clients had committed civil conspiracy/collusion and fraud in the first lawsuit, then so did their attorneys. Yet another honest attorney confided that these attorneys were "unnamed defendants." It was on this basis that the Heffingtons filed the following:

Mark and Joan Heffington
7145 Blueberry Lane
Derby, KS 67037

Plaintiffs,
vs.

LUSK COMMUNITIES, INC.
A/K/A LUSK REAL ESTATE CO.
WILLIAM E. LUSK, JR.
HUCKLEBERRY, INC.
JEFF C. SPAHN, JR.
MARTIN, PRINGLE, OLIVER,
WALLACE & BAUER, L.L.P.
BAUGHMAN CO., P.A.
SCOTT J. GUNDERSON
NELSON & GUNDERSON
CONTINENTAL INS. CO. (CNA )
BOB COOK HOMES, L.L.C.
ROBB RUMSEY
RUMSEY & CLEARY LAW OFFICES
KEVIN VAN NOSTRAND
CONTINENTAL WESTERN INS. CO.
WESLEY E. GALYON
MARK G. AYESH

Case No. 03 CV 1655
Defendants.

Pursuant to K.S.A., Chapter 60

PETITION

COMES NOW the plaintiffs, Mark and Joan Heffington and Heffington Homes, Inc., pro se, and files its petition against the defendants as follows:

A. PARTIES

1. Plaintiffs, Mark and Joan Heffington, are individuals representing themselves pro se with residence located at 7145 Blueberry Lane, Derby, Kansas 67037. Plaintiffs, Mark and Joan Heffington, are hereinafter referred to as "plaintiffs", "Mr. Heffington" and "Mrs. Heffington".

2. Plaintiff, Heffington Homes, Inc., is a Kansas corporation with principle offices located at 7145 Blueberry Lane, Derby, Kansas 67037. Mark and Joan Heffington are the only officers of Heffington Homes, Inc. and there are no other employees. Plaintiff, Heffington Homes, Inc., is hereinafter referred to as "Heffington Homes" or "plaintiffs' business."

3. Defendant, Lusk Communities, Inc., a/k/a Lusk Real Estate Co., is a Kansas corporation with principle offices located at 1608 E. Lewis, Wichita, Kansas 67211. Lusk Communities, Inc., a/k/a Lusk Real Estate Co., may be served by and through its attorney, Jeff C. Spahn, Jr., at his principle place of business: Martin, Pringle, Oliver,Wallace & Bauer, L.L.P., 100 North Broadway, Suite 500, Wichita, Kansas 67202. Defendant, Lusk Communities, Inc., a/k/a Lusk Real Estate Co., is hereinafter referred to as "Lusk" and part of "the Lusk entities."

4. Defendant, William E. Lusk, Jr., is an individual who resides at 15849 Stratford Row, Wichita, Kansas 67230. William E. Lusk, Jr. may be served by and through his attorney, Jeff C. Spahn, Jr., at his principle place of business: Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., 100 North Broadway, Suite 500, Wichita, Kansas 67202. Defendant William E. Lusk, Jr. is hereinafter referred to as "Lusk"and part of "the Lusk entities."

5. Defendant, Huckleberry, Inc., was a Kansas corporation (dissolved 11/28/00) with principle offices at 1608 E. Lewis, Wichita, Kansas 67211. Huckleberry, Inc. may be served by and through its attorney, Jeff C. Spahn, Jr., at his principle place of business: Martin, Pringle, Oliver, Wallace & Swartz, L.L.P., 100 North Broadway, Suite 500, Wichita, Kansas 67202. Defendant, Huckleberry, Inc., is hereinafter referred to as "Huckleberry" and part of "the Lusk entities."

6. Defendant Jeff C. Spahn, Jr., of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., is a Kansas attorney with principle offices located at 100 North Broadway, Suite 500, Wichita, Kansas 67202. Defendant, Jeff C. Spahn, Jr., may be served personally at his principle place of business previouslynoted. Defendant Jeff C. Spahn, Jr. is hereinafter referred to as "Spahn" or "Mr. Spahn."

7. Defendant Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., is a Kansas Limited Liability Partnership with principle offices located at 100 North Broadway, Suite 500, Wichita, Kansas 67202. Defendant, Martin, Pringle, Oliver, Wallace & Spikes, L.L.P. may be served by and through its partner, Robert Martin, at his principle place of business previously noted. Defendant, Martin, Pringle, Oliver, Wallace & Spikes, L.L.P. is hereinafter referred to as "Martin-Pringle."

8. Defendant, Baughman Co., P.A., is a Kansas professional association with principle offices at 315 S. Ellis, Wichita, Kansas 67211. Defendant, Baughman Co., P.A., may be served by and through its attorney, Scott J. Gunderson, at his principle place of business: Nelson & Gunderson, 2420 North Woodlawn, Bldg. 100, Suite K, Wichita, Kansas 67220. Defendant, Baughman Co., P.A., is hereinafter referred to as "Baughman".

9. Defendant Scott J. Gunderson, of Nelson & Gunderson, is a Kansas attorney with principle offices located at 2420 N. Woodlawn, Bldg. 100, Suite K, Wichita, Kansas 67220. Defendant, Scott J. Gunderson, may be served personally at his principle place of business previously noted. Defendant Scott J. Gunderson is hereinafter referred to as "Gunderson" or "Mr. Gunderson."

10. Defendant Nelson & Gunderson is a Kansas legal partnership with principle offices located at 2420 N. Woodlawn, Bldg. 100, Suite K, Wichita, Kansas 67220. Defendant, Nelson & Gunderson, may be served by and through Scott Gunderson at his principle place of business previously noted. Defendant Nelson & Gunderson is hereinafter referred to as "Nelson & Gunderson."

11. Defendant Continental Insurance Co. (CNA) is a liability insurance company licensed to do business in the state of Kansas with principle offices located at CNA Plaza, Chicago, Illinois 60685. Defendant Continental Insurance Co. may be served by and through their secretary, Johnathan Kantor, at his principle place of business previously noted. Defendant Continental Insurance Co. is hereinafter referred to as "Continental Ins." or "CNA."

12. Defendant, Bob Cook Homes, L.L.C., is a Kansas corporation with principle offices located at 4414 S. 231st St. West, Goddard, Kansas 67052. Defendant, Bob Cook Homes, L.L.C., may be served by and through his attorney, David L. Vogel, at his principle place of business, Powell, Brewer & Reddick, L.L.P., 560 River Park Place, 727 N. Waco, Wichita, Kansas 67203. Defendant, Bob Cook Homes, L.L.C., is hereinafter referred to as "Cook."

13. Defendant Robb Rumsey of Rumsey & Cleary Law Offices, is a Kansas attorney with principle offices located at 1041 N. Waco, Wichita, Kansas 67203-3998. Defendant, Robb Rumsey, may be served personally at his principle place of business previously noted. Defendant, Robb Rumsey represented defendant Bob Cook Homes, L.L.C. from approximately April, 2000 until March, 2001. Defendant Robb Rumsey is hereinafter referred to as "Rumsey" or "Attorney Rumsey."

14. Defendant Rumsey & Cleary Law Offices is a Kansas legal partnership with principle offices located at 1041 N. Waco, Wichita, Kansas 67203-3998. Defendant Rumsey & Cleary Law Offices may be served by and through its partner, Robb Rumsey, at his principle place of business previously noted. Defendant Rumsey & Cleary Law Offices is hereinafter referred to as "Rumsey & Cleary."

15. Defendant Kevin Van Nostrand is an individual employed by Continental Western Insurance Company, 3641 Village Drive, Lincoln, Nebraska 68516-4721. Defendant Kevin Van Nostrand is a Nebraska insurance representative with principle offices located at 3641 Village Drive, Lincoln, Nebraska 68516-4721. Defendant Kevin Van Nostrand may be served personally at his principle place of business previously noted. Defendant Kevin Van Nostrand is hereinafter referred to as "Van Nostrand" or "Mr. Van Nostrand."

16. Defendant Continental Western Insurance Company is an insurance company licensed to do business in the state of Kansas with principle offices located at Box 1594, Des Moines, Iowa 50306. Defendant Continental Western Insurance Co. may be served by and through their secretary, John Thelan, at his principle place of business previously noted. Defendant Continental Western Insurance Company is hereinafter referred to as "Continental Western Ins."

17. Defendant Wesley E. Galyon is an individual who resides at 16666 SW 60th St., Wichita, Kansas 67002. Wesley E. Galyon is President of the Wichita Area Builders Association, and may be served by and through his attorney, Alexander B. Mitchell II of Klenda, Mitchell, Austerman & Zuercher, L.L.C., 301 N. Main, Suite 1600,Wichita, Kansas 67202-4888. Defendant Wesley E. Galyon is hereinafter referred to as "Galyon" or "Mr. Galyon."

18. Defendant, Mark G. Ayesh, is a Kansas attorney with principle offices located at 8100 E. 22nd St. North, Bldg. 2300, Suite 2, Wichita, Kansas 67226. Defendant, Mark G. Ayesh, may be served personally at his principle place of business previously noted. Defendant, Mark G. Ayesh, is hereinafter referred to as "Ayesh" or "Mr. Ayesh."

B. FACTS PERTAINING TO THE PARTIES

19. Plaintiffs are engaged in the business of purchasing residential land lots and constructing homes for sale to the general public.

20. Lusk Communities, Inc. is engaged in the business of residential real estate development and was the developer for the Huckleberry Estates Addition in Sedgwick County outside the City of Derby, Kansas.

21. Mr. Lusk is the President of Lusk Communities, Inc., a/k/a Lusk Real Estate Co., and was the President of Huckleberry, Inc. (dissolved 11/28/00).

22. Mr. Spahn is an attorney with the law firm of Martin-Pringle who represented Lusk Communities, Inc., Huckleberry, Inc. and William E. Lusk, Jr. (the Lusk entities) from approximately March, 2000, to the present.

23. Baughman is engaged in the business of providing professional engineering/architectural services to the real estate industry. Baughman performed professional services, including, but not limited to, the establishment of plats, topography charts and drainage easements for Huckleberry Estates Addition.

24. Gunderson is an attorney with the law firm of Nelson & Gunderson who represented defendant Baughman from approximately March, 2000 to the present.

25. Continental Insurance Company (CNA) is the liability insurance company for defendant Baughman in this matter.

26. Cook is a construction company engaged in the business of purchasing residential land lots and constructing residential homes for sale to the general public.

27. Rumsey is an attorney with the law firm of Rumsey & Cleary who represented defendant Cook from approximately March, 2000 to approximately March, 2001.

28. Van Nostrand is an insurance agent/representative for Continental Western Insurance Group which provided liability insurance coverage for defendant Cook in this matter.

29. Continental Western Ins. Co. is the liability insurance company for defendant Cook in this matter.

30. Galyon is President/CEO of the Wichita Area Builders Association (WABA), a non-profit trade organization engaged in the business of assisting members of the building industry for mutual benefits.

31. Mr. Ayesh is an attorney and family acquaintance of Mrs. Heffington. Mr. Ayesh legally legally represented the plaintiffs from approximately April 27, 2000 until November 8, 2000.

C. FACTS PERTAINING TO THE CASE

32. On or about February, 1999, plaintiff Joan Heffington contacted Lusk Communities, Inc., concerning plaintiffs' desire to purchase Lot 9, Block D, of the Huckleberry Estates Addition to Derby in Sedgwick County, Kansas. It was Mrs. Heffington's intention to become a spec home builder. Mr. Weast, Vice-President of Lusk Communities, Inc., advised Mrs. Heffington to purchase this property through Lusk's selling agent, John Smith with Preferred Properties Of Kansas.

33. Plaintiffs had previously received a packet of information about the Huckleberry Estates Addition from Mr. Weast in 1993, prior to constructing their own home in the Huckleberry Estates Addition. This packet contained an area plat and rendering (Attachment A), but did not contain any information regarding drainage in the Huckleberry Estates Addition.

34. Plaintiffs had constructed their own residence at 7145 Blueberry Lane in the Huckleberry Estates Addition in 1994. Plaintiffs' residence is directly across the pond to the west of Lot 9, the property they were intending to purchase.

35. In February, 1999, plaintiffs purchased Lot 9, Block D, in Huckleberry Estates Addition, commonly known as 7140 Huckleberry Drive, Derby, Kansas. Plaintiffs purchased this property from Lusk's listing and selling agents, ReMax and Preferred Properties, respectively.

36. Shortly after purchasing Lot 9, plaintiffs obtained a construction loan from Intrust Bank in Haysville, Kansas, to construct a residence thereon. They acquired this loan in their personal names, since they did not become incorporated as Heffington Homes until July, 1999.

37. Prior to construction, plaintiffs obtained Builder's Risk insurance from their insurance agent. They were unaware of liability insurance, and Sedgwick County did not require this from them.

38. Plaintiffs were able to view construction of the home from their residence across the pond.

39. Construction of the residence at 7140 Huckleberry Drive was completed by plaintiffs on or about October, 1999. Final inspection by Sedgwick County was not required until the house was sold.

40. On October 2, 1999, The Wichita Eagle wrote a front-page article about Mrs. Heffington as the first female builder to join the Wichita Area Builders Association. Many people came to view the home on Lot 9 during the Fall Parade of Homes, and although a contract didn't materialize, one man verbally offering to buy it for $286,600.

41. Mrs. Heffington had become acquainted with Wesley Galyon, President of the Wichita Area Builders Association, through attending various WABA functions.

42. At a home show in early February, 2000, Mr. Galyon whispered to Mrs. Heffington: "Stick with me, and I'll make you a star." Mrs. Heffington was puzzled by this remark.

43. Defendant Cook had commenced construction of a residence on Lot 10, Block D, of the Huckleberry Estates Addition, on or about November, 1999. Lot 10 is the first lot adjacent to plaintiffs' Lot 9 and directly to the south of Lot 9.

44. In January, 2000, plaintiffs signed a contract with ReMax in an attempt to market the residence to the general public.

45. It rained for several days in late February, 2000. Flooding resulted in the backyard of plaintiffs' property, and was somewhat blocked from view by the densely wooded area directly east of the residence constructed by the plaintiffs on Lot 9.

46. Cook had constructed the residence on Lot 10 in a manner that impeded and interfered with the natural flow and drainage of water from plaintiffs' property (Attachment B). The water flow was blocked from plaintiffs' property causing severe flooding and ponding. The flooding and ponding on plaintiffs' property was approximately 150' long, 25' wide, and up to 2' deep, encompassing the entire back yard of the residence on Lot 9.

47. The plaintiffs' property appraised at $255,000 - $260,000. ReMax had an interested buyer in early March, 2000, but they would not sign a contract until the flooding problem was repaired.

48. Mrs. Heffington repeatedly contacted Cook, Lusk, Mr. Weast, Preferred Properties, and Baughman for their assistance in a resolution of the flooding problem. Time was of the essence, and plaintiffs did not want to lose the impending sale of their property.

49. The aforementioned parties ignored Mrs. Heffington's requests.

50. Plaintiffs paid $750 to have numerous small trees removed, but were refused a $4000 loan to bring in 50 loads of fill dirt as a possible solution. Mrs. Heffington advised Cook and others that they did not have the money to bring in fill dirt.

51. On or about March 13, 2000, plaintiffs lost the impending sale of their property due to the flooding. Plaintiffs lost several more prospective buyers later on.

52. Cook, Lusk, Mr. Lusk, Mr. Weast, Baughman, Preferred Properties, and Mr. Galyon continued to ignore Mrs. Heffington's requests for assistance in this matter. These parties also denied the existence of a drainage plan for the Huckleberry Estates Addition.

53. On or about 4/4/2000, Mrs. Heffington contacted WABA concerning possible legal action as a resolution of the flooding problem. WABA advised that Mr.Galyon would come out that day to review the situation.

54. Mr. Galyon reviewed the flooding of Lot 9, Block D, of the Huckleberry Estates Addition with Mr. Mitch Mitchell, WABA member and former Flood Control Coordinator for Sedgwick County. He told Mrs. Heffington that there was no drainage plan for Huckleberry Estates.

55. On 4/5/2000, Sedgwick County Inspector Dale Wasinger provided Mr. Galyon and plaintiffs with a copy of the drainage plan for the Huckleberry Estates Addition.

56. Plaintiffs did not believe that fill dirt was an adequate solution. Both city and county inspectors felt that in a 7-10 inch rain, the basement of the residence constructed by plaintiffs on Lot 9 would flood.

57. At a WABA Awards Banquet on 4/5/2000, Mr. Galyon advised Mrs. Heffington that when such problems occur, WABA tries to find the least expensive solution, advising her to just bring in fill dirt. Mrs. Heffington stated that the plaintiffs did not have the money, and that Mr. Heffington was refused a $4000 signature loan at his credit union. Mr. Galyon offered to convince Haysville Intrust Bank to loan them additional money, or other financial assistance to bring in fill dirt.

58. Mrs. Heffington advised Mr. Galyon that the responsible parties (Cook and the Lusk entities) needed to bring in the dirt, and to fix the problem correctly. Inspectors were recommending the installation of catchbasins (drains) at the back of Lot 9, with excavation under the road and into the pond to the west, to ensure that the basement of the residence constructed by plaintiffs would not flood in a 7-10 inch rain. They had told her it was the only proper repair, and it was very expensive.

59. Mr. Galyon asked for a few more days to try and work the problem before Mrs. Heffington would send a demand letter to Lusk and Cook. Mrs. Heffington concurred.

60. On 4/7/2000, Mrs. Heffington met with Roger Sherwood, an attorney who was referred to her by Mr. Galyon. Mr. Sherwood stated that this was only a $5000 case, and that plaintiffs should just bring in fill dirt. Mr. Sherwood stated that when Lusk found out the plaintiffs had no money, they would just drag the matter out.

61. On the way home from this meeting, Mrs. Heffington stopped by to see Mr. Galyon. He confirmed Mr. Sherwood's advice, stating, "We just need to get you on your way." Mr. Galyon told Mrs. Heffington that Lusk was not responsible, and that the problem was between her and Mr. Cook.

62. Mrs. Heffington was not in agreement with Mr. Galyon and Roger Sherwood's legal advice, and contacted Mr. Ayesh for a second opinion. Mr. Ayesh stated that there were numerous claims involved, including willful and wanton negligence, trespass, and others.

63. Mrs. Heffington met with attorney Mark Ayesh on 4/10/2000, and he verbally approved the demand letter she had written to Lusk and Cook.

64. On 4/11/2000, Mrs. Heffington sent certified mail the demand letter to Lusk and Cook, and copies to Baughman, Mr. Ayesh and Mr. Galyon.

65. On the night of 4/11/2000, prior to when the parties would have received the demand letter, defendant Cook contacted Mrs. Heffington at her residence. Cook stated that he had 85 loads of dirt coming to fill in both the plaintiffs' Lot 9 and Cook's Lot 10.

66. Mrs. Heffington was relieved for the offer. She asked Mr. Cook if he had ever seen the drainage plan for the Huckleberry Estates Addition, and he said no. Mrs. Heffington showed the drainage plan to Mr. Cook, and told him she thought that Lusk had left a drainage easement off the plat on the east side of their lots. Mr. Cook advised that he was going to "fall back on Lusk", then, to pay for some of the fill dirt, that it shouldn't be all on him.

67. Cook, having full knowledge of the plaintiffs' desperate financial situation, failed to bring in the fill dirt he had promised for plaintiffs' Lot 9. Cook, Baughman and the Lusk entities made no further gestures or contact with plaintiffs in regard to this matter.

68. On 4/13/2000, Mrs. Heffington observed two men walk to the backyard of plaintiffs' property on Lot 9. Mrs. Heffington approached the individuals, recognizing them as Roger Weast, Vice-President of Lusk and Huckleberry, and possibly Mr. Lusk.

69. Mr. Weast, stated to Mrs. Heffington that they had just come out to look things over. Mrs. Heffington departed without further comment.

70. On 4/14/2000, Mrs. Heffington noticed activity by Cook on Lot 10, and observed Mr. Galyon drive through the area. Mr. Galyon cell-phoned Mrs. Heffington and advised her that the proposed repair of the drainage was to remove numerous 50-year old trees and bring in several hundred loads of fill dirt, thereby devaluing plaintiffs' property and others. Mr. Galyon stated that plaintiffs and Cook would be entirely responsible for these repairs and the expense involved.

71. Mrs. Heffington stated that Mr. Galyon's proposed solution was unacceptable, since inspectors were saying that in a 7-inch rain, the property would still flood. Mrs. Heffington suggested that publicity may be necessary to achieve proper repair of the flooding situation on Lot 9.

72. On or about 4/18/2000, Baughman took elevations of Lots 6-10, Block D, of the Huckleberry Estates Addition. This was done at the request of Mr. Galyon to confirm WABA's proposed solution to the flooding problem on plaintiffs' Lot 9. Baughman's report was never revealed to plaintiffs by any of the defendants.

73. Building inspectors and several drainage experts agreed that the Baughman Company failed to include a a necessary drainage easement on the east side of Lots 6-11, Block D, of the Huckleberry Estates drainage plan and area plat.

74. As a result of the flooding and ponding, plaintiffs' lost additional prospective sales of the home they had constructed on Lot 9. On or about 4/22/2000, one prospective buyer of plaintiffs' property sought a discount of $50,000 in order to accommodate devaluation of the property and the rectification of the flooding and ponding problem.

75. On or about 4/24/2000, Mrs. Heffington contacted Mr. Ayesh to file a lawsuit in regard to this matter. Due to the plaintiffs' financial state, Mr. Ayesh agreed to a contingency basis.

76. Plaintiffs entered into a contingency contract with Mr. Ayesh to represent them on or about 4/28/2000.

77. After reviewing Mrs. Heffington's documents, notes and other correspondence, Mr. Ayesh sent a petition and demand letter to defendants Cook, Lusk and Baughman. The demand letter requested a response by 5/9/2000, or the lawsuit, in the name of the plaintiffs' business, Heffington Homes, Inc., would be filed.

78. A copy of the petition and demand letter was received by plaintiffs on or about 4/28/2000. Plaintiffs reviewed the petition, but were unclear as to the amount of damages Mr. Ayesh was requesting. Mrs. Heffington called Mr. Ayesh, who stated: "We're gonna sue them for a million dollars! We're gonna take them for their mother, and their brother and their sister, and… I'm gonna get you enough money to retire!"

79. On or about 5/1/2000, Mrs. Heffington notified Mr. Galyon by telecon that she had found an attorney to represent plaintiffs on contingency. Mr. Galyon asked who the attorney was, and Mrs. Heffington told him it was Mr. Ayesh.

80. Plaintiffs heard nothing from Mr. Ayesh until Mrs. Heffington contacted him by telecon on 5/9/2000. At that time, Mrs. Heffington inquired as to whether the impending lawsuit would be filed. Mr. Ayesh stated: "Well, now,… I just think we need to get you on your way… I'm going to ask for $5000 in damages." Plaintiffs were bewildered.

81. From 5/9/2000 until 11/2000, Mr. Ayesh continued to try and convince Mrs. Heffington to drop the suit; it was only a $5000 matter, that Cook, Lusk and Baughman owed no legal or financial responsibility; and that the plaintiffs could not win because they had no money.

82. Mr. Ayesh never told the plaintiffs that they could file a liability insurance claim in regard to this matter. In May or June, 2000, Mrs. Heffington asked Mr. Ayesh if he needed a list of their damages, he said no, that it was too much trouble and would take too long.

83. Mr. Ayesh, the defendants and their counsel had full knowledge that plaintiffs were incurring financial hardship and that their property would not sell, and they agreed to willfully and intentionally drag the matter out to plaintiffs' detriment. In July, 2000, Mr. Ayesh told Mrs. Heffington that her problem was that she believed there was justice in the justice system, but there wasn't.

84. The defendants' acts and failures to act resulted in defamation, a detriment to plaintiffs' business, continuing financial hardship, health problems and emotional distress to plaintiffs and their children.

85. Plaintiffs and their children suffered extreme emotional distress. Mrs. Heffington's 17-year old son left home in May, 2000 to live with relatives. He told his mother he thought it would be easier for plaintiffs to take care of three kids, instead of four.

86. As a result of her stress, Mrs. Heffington experienced headaches, chest pains, neurodermatitis, and serious skin cancer requiring Mohs surgery in Kansas City in August, 2000.

87. The plaintiffs were forced to cash in savings bonds, draw unemployment, and charge groceries, with almost 94% of their monthly income used to pay bills. They resorted to drinking heavily and sought counseling and prayers at their church for months in regard to this matter.

88. Flooding of the plaintiffs' property remained from late February, 2000, until approximately mid-May, 2000. It rained again in June, and flooding and ponding remained on Lot 9 until approximately mid-July, 2000. During this time, numerous potential buyers declined to make offers because of the flooding.

89. From late February to late August, 2000, plaintiffs made various attempts to sell the property in question, with and without a realtor, but to no avail. One prospective buyer stated to Mrs. Heffington that she heard the property in question "had major drainage problems".

90. In late May, 2000, a prospective buyer offered a contingency contract for the plaintiffs' property at a discounted price "as is", intending to bring in their own fill dirt. The buyer believed the flooding was reparable with fill dirt; however, this contract eventually fell through.

91. Plaintiffs contacted several authorities in the building/real estate industry in an effort to determine whether they could sell the home on Lot 9 in good faith. They knew that there might be a subsequent flooding problem if fill dirt was not an adequate repair.

92. The City of Derby was negligent for approving the Huckleberry Estates Final Plat without the necessary drainage easement across the east side of Lots 6-11, Block D.

93. Mrs. Heffington met with Derby mayor and WABA builder Richard Standrich on or about July 7, 2000. He stated that after annexation of Huckleberry Estates, Derby would repair the drainageproblem, but that Huckleberry residents would have to incur the cost as a special assessment.

94. Mrs. Heffington asked Mayor Standrich if he felt she could sell her property in good faith, knowing there might be a potential flooding problem in the future. He told her that he felt she did not have to disclose a potential drainage problem which may or may not exist.

95. Mrs. Heffington called Mr. Galyon in late July, 2000, and he agreed with Standrich, stating that "no one can tell the future." Toward the end of the conversation, Mr. Galyon stated to Mrs. Heffington: "You won't make those mistakes again, will you?"

96. Mrs. Heffington had successfully completed real estate courses and obtained a temporary license in the summer of 2000; however, she could not find an agency or broker who would hire her.

97. Sedgwick County was also negligent, since they approved the Huckleberry Estates drainage plan as well as the setback for Cook's home on Lot 10. Telephone calls and meetings by plaintiffs asking for repair assistance by the county proved futile.

98. In late August, 2000, Mrs. Heffington sent a letter to Mr. Galyon at WABA, requesting WABA's assistance in finding an investor to purchase their property. No response was received from Mr. Galyon or WABA.

99. Exhausting nearly all efforts to make payments on their construction loan, plaintiffs were nearing bankruptcy and foreclosure of the home they had hoped to sell on Lot 9. They put their own residence on the market in late August, 2000, hoping to sell one or the other.

100. Mrs. Heffington's mother had passed away in May, 2000, and plaintiffs received a $6000 death benefit in September, 2000. They used this money to bring in fill dirt as a proposed remedy, and the home on Lot 9 sold a week later for $240,000 (less $4,500 in changes).

101. In October, 2000, Mr. Ayesh convinced plaintiffs to sign a release and settlement agreement with Cook, Lusk and Baughman for $10,000, stating that "it's all you're going to get". The agreement stated that there was no liability for defendants Cook, the Lusk entities or Baughman in regard to the flooding of plaintiffs' property.

102. Due to the intense emotional distress caused by the flooding, and the acts and failures to act, by Mr. Ayesh and the other defendants, plaintiffs were near to a divorce. Mrs. Heffington was extremely distrusting of Mr. Ayesh's actions, while Mr. Heffington, not having been directly involved in attempts to resolve this matter, was convinced that the actions of Mr. Ayesh, because he was an attorney, must be ethical.

103. In an effort to avoid further distress to Mr. Heffington and their marriage, Mrs. Heffington signed the agreement for $10,000 in early October, 2000, and returned it to Mr. Ayesh.

104. Shortly thereafter, Mr. Ayesh sent plaintiffs a revised release and settlement agreement. The revised agreement stated that the plaintiffs would agree to sign for the buyers of their property, that they would not sue the defendants either. In addition, the dollar amount of the settlement had been changed from $10,000 to "one dollar, and other valuable consideration."

105. Mrs. Heffington contacted Mr. Ayesh in regard to such outrageous changes, and he advised her to "sign it anyway, we all know it's really $10,000."

106. On November 8, 2000, Mrs. Heffington disengaged the services of Mr. Ayesh, fully convinced that he had conspired against them with defendants Cook, the Lusk entities, Baughman and Galyon.

107. Mr. Ayesh had ethically breached his duty to plaintiffs as their attorney, and also breached a duty to them to disclose the fact that the defendants had liability insurance to cover this matter.

108. On November 9, 2000, plaintiffs received a routine phone call from an insurance representative who told them that an insurance claim could be filed in regard to the flooding caused by the defendants. Mrs. Heffington contacted Kevin Van Nostrand with Cook's insurance company, Continental Western Ins. in Nebraska.

109. In early December, 2000, Continental Western had their adjuster, John Adams, contact plaintiffs regarding their claim. Plaintiffs' list of damages were ignored, and they were advised that the $10,000 settlement was all they could get.

110. Defendants Cook, the Lusk entities and Baughman are extremely wealthy, and had the money to pay for the drainage repair even without insurance.

111. Plaintiffs were refused another construction loan by Instrust Bank in Haysville to continue building on another lot. From September to December, 2000, Mrs. Heffington contacted nine banks in three months before finding one that would give them a construction loan to continue their business.

112. In January, 2001, Mrs. Heffington wrote to Kathleen Sebelius with the Kansas Insurance Commission in regard to plaintiffs' damages, but were advised that the Courts would have to decide the matter.

113. Mrs. Heffington drew up a petition similar to the one Mr. Ayesh had intended to file, and filed the suit pro se on March 12, 2001 (Case No. 01 C 0771 - hereinafter referred to as "the previous lawsuit.") The parties named as defendants were Cook, the Lusk entities and Baughman. Plaintiffs hoped that they would soon be able to find an attorney to take their case on contingency.

114. Although there had been somewhat of a drought for months, it rained approximately 2-3 inches in March, 2001, and severe flooding occurred to the backyard of the home on Lot 9.

115. Mrs. Heffington observed the flooding at that time, which was approximately 15 feet from the foundation of the home on Lot 9. Herta Grandsault, who lived in the residence at that time with her husband and two children, stated to Mrs. Heffington: "I'm scared."

116. The problem had further escalated by the subsequent construction of another residence by Cook on Lot 8 adjacent to plaintiffs' Lot 9 and directly to the north of Lot 9. This property was also severely flooded in both the backyard and front ditches.

117. Plaintiffs contacted numerous attorneys for legal assistance in this matter; however, it was the strategy of the defendants and their counsel to influence attorneys not to represent them, so that they would lose their case. This violated plaintiff's Fifth Amendment right to due process of law.

118. Mrs. Heffington's son, Garrison, was depressed and distraught over his parent's continuing financial problems. On April 30, 2001, he ran away from school and was suicidal. When he wasfound, he told plaintiffs he just "didn't want to have to worry about money any more."

119. The following week, he wrote a poem at school called "Money, Money."

120. In May, 2001, plaintiffs had consulted with attorney John Womack to assist them. He told Mrs. Heffington that she needed to contact Mr. Galyon to acquire some information for the case. On or about May 15, 2001, Mrs. Heffington sent a fax to Mr. Galyon.

121. On or about May 16, 2001, Mr. Galyon called Mrs. Heffington and asked what she needed the information for. He demanded to know who her attorney was, and when she refused to tell him, he stated: "Well, when you file it, we'll know who it is."

122. From December, 2000 until approximately October, 2001, plaintiffs made numerous attempts to contact attorneys, the media, public figures, other local and state agencies, hoping it would bring them legal assistance, but to no avail.

123. The defendants and their counsel continued to cause plaintiffs intentional emotional distress. In June, 2001, attorney Randy Rathbun made the remark to Mrs. Heffington in the presence of witnesses that "they're just going to keep beating you up until they wear you down."

124. Mr. Spahn filed a motion for summary judgment which the district court denied in the summer of 2001. While doing research at the law library in May-June, 2001, Mrs. Heffington discovered claims of civil conspiracy/collusion and fraud. The district court allowed plaintiffs to revise their petition, and they added these claims and Mr. Ayesh and Mr. Galyon as defendants in the previous lawsuit.

125. In plaintiffs' Third Amended Petition, they stated that defense counsel had assisted their clients in carrying out the schemed plan.

126. From approx. May to November, 2001, Mr. Spahn, counsel for the Lusk entities, caused plaintiffs continued mental anguish by sending them threatening and harassing letters in an effort to get them to drop the suit or get his clients dismissed.

127. Plaintiffs made repeated attempts to try and settle or mediate their previous litigation, all of which were ignored by the defendants and their counsel.

128. The stress of her business deteriorating, marriage and financial difficulties, watching her children suffer, trying to find an attorney and trying to continue the previous lawsuit without one continued to cause Mrs. Heffington health problems. This included a severe anxiety attack on October 15, 2001, after working on a court brief and conducting two depositions.

129. During discovery in the previous lawsuit, Mr. Spahn told plaintiffs that the Lusk entities did not have insurance in regard to this matter. Mr. Gunderson revealed a certificate of liability insurance for the Baughman Co., which showed that Baughman's insurance company was Continental Ins.(CNA).

130. Plaintiffs had been advised by attorney Jeff Willis that unless they had an affidavit from someone who agreed with them that civil conspiracy/collusion and fraud had occurred, they would lose at the hearing to dismiss these claims. In late August, 2001, Dale Wasinger, Sedgwick County building inspector, signed an affidavit to this effect, stating that he had told Mrs. Heffington in May, 2001, that "she should just be careful while she's driving."

131. Mr. Galyon appeared at the hearing on August 29, 2001, and claims of civil conspiracy/ collusion and fraud were quickly dismissed. The following week, Mr. Wasinger was told by his boss that Mr. Galyon was going to have him fired or sue him for defamation if he did not change the statements he made in his affidavit.

132. Mr. Wasinger's deposition was taken in October, 2001. At that time, he admitted that he had had conversations with defendant Cook in November, 1999, when he began building the home on Lot 10. Mr. Wasinger stated that Cook knew prior to construction that he was going to cause a flooding problem to plaintiffs' Lot 9, but he didn't care who got hurt.

133. During discovery in October, 2001, Mrs. Heffington was allowed by Cook's new counsel to review his client's insurance files. He told her that "even though the other attorneys said the files were attorney-client privileged, they really weren't."

134. At that time, Mrs. Heffington discovered the letter from Cook's previous counsel, Mr. Rumsey, to defendant Cook (Attachment C). This letter was the "smoking gun" to convince Mrs. Heffington that conspiracy and fraud had occurred among all of the defendants in this matter, to convince them that their claims were only worth $10,000 so that neither the defendants or their insurance companies would have to pay a huge claim amount.

135. Mrs. Heffington discovered additional correspondence from approximately April, 2001, between Kevin Van Nostrand and John Adams, representatives of Continental Western Ins., which showed their involvement in trying to convince plaintiffs of the same.

136. Plaintiffs' claims were dismissed at the summary judgment hearings on December 20-21, 2001. Plaintiffs believed the district court judges had also been influenced by the defendants and theircounsel in this matter.

138. Between December, 2001 and April, 2002, evidence tampering occurred to the plaintiffs' court file in their previous lawsuit. Mrs. Heffington noticed that evidence was missing, and other court documents and transcripts had been altered. Since only attorneys are allowed to check out court files, it followed that Mr. Spahn, Martin-Pringle, Mr. Gunderson, Nelson & Gunderson, Mr. Ayesh or other court officials must have been responsible for the evidence tampering in an effort to cause plaintiffs to lose their appeal.

139. During this time, Mrs. Heffington noticed inaccuracies in the transcripts from depositions taken by Mr. Spahn and Mr. Gunderson. She recalled they had insisted on bringing their own court reporters with them to these depositions.

140. At the Motion to Reconsider in January, 2002, Mrs. Heffington stated in her arguments that the defendant's intent to cause them financial hardship had been extremely distressing to her family. She commented to the court that "grownups can have their issues, but you don't hurt the children." The Motion to Reconsider was denied, and plaintiffs filed a Notice of Appeal on or about February 25, 2002 (Court of Appeals Case No. 02-88617-A.)

141. Mr. Spahn had been "spearheading" the harassment efforts against them during litigation, and Mrs. Heffington felt he then identified plaintiffs' weakness as their children. In July, 2002, emotional distress and harassment continued against plaintiffs when unwarranted charges were brought against Mrs. Heffington's 14-year old son, Garrison.

142. Mrs. Heffington was legally advised that the charges of Filing a False Alarm brought against Garrison were without merit and should just be dismissed; however, the Derby police and Sedgwick County District Attorney's office refused. Letters to government officials proved futile, and the litigation toward an impending trial has continued for nine months.

143. The charges and impending trial have caused Garrison to feel destined for a life of crime. He was involved in more incidents with police, continues in therapy since September, 2002, and was given depression medication.

144. In March, 2002, Mrs. Heffington was expelled from the Wichita Area Builders Association. This was due to a grievance that she had filed "false litigation" in their previous lawsuit.

145. Plaintiffs continued to suffer defamation. Mrs. Heffington was labeled "Sue-crazy" and "Typhoid Mary" by professionals in the building and real estate industry. Close friends would not associate with plaintiffs because of the previous lawsuit.

146. Plaintiffs' construction business continued to suffer, such that they were only able to build three spec homes and no customs between 1999 and 2003. In four years of business, Mrs. Heffington was never able to draw a salary as President of Heffington Homes, Inc.

147. Mrs. Heffington wrote to President Bush twice in 2002 regarding the lack of justice in the justice system. On November 18, 2002, he wrote to thank her for her concern about "corporate fraud."

148. Mrs. Heffington continued to suffer health problems due to the stress of the litigation and trying to handle the previous lawsuit pro se. These included depression, suicidal thoughts, anxiety attacks, paranoia, back and neck pain, digestive problems, eye ulcers, contact dermatitis, a recurring virile infection in both eyes, and osteoarthritis. Mr. Heffington continued to drink heavily.

149. The overt acts of all of the defendants which constitute fraud in this matter included telephone calls, communications, meetings and "mental processes" from approximately March, 2000 to April, 2001, and up to the present. The defendants engaged in these acts to induce the plaintiffs to believe they had no responsibility for repair, to drop the suit, their claims were only worth $5000 - $10,000, and to hide the fact they had insurance so they would not have to pay a huge claim amount.

150. Plaintiffs contend that this matter is "res ipsa loquitor" - it speaks for itself.

151. Rather than repair the drainage problem they caused, the defendants chose to ruin the plaintiffs' business, hurt their family, run them out of money, fool them into believing they had no responsibility to repair the drainage problem, and cause them to go through a lawsuit for over two years without an attorney. Such conduct warrants a tort of outrage in this matter.

D. FACTS PERTAINING TO "THE SCHEMED PLAN"

152. On or about May 1, 2000, defendants Galyon devised a schemed plan with Lusk and the other defendants to convince the plaintiffs that their previous pending lawsuit had no merit, that their claims were only worth $5000, and that defendants Cook, the Lusk entities and Baughman were not legally or financially responsible for the flooding of plaintiffs' property. The overt acts of the defendants which constitute fraud in this matter include telephone calls, communications, meetings and using "mental processes." Mr. Galyon had already made false statements to Mrs. Heffington on or about April 4, 2000, that there was no drainage plan, and on or about April 7, 2000, that Lusk had no responsibility for repairing the drainage problem. The schemed plan included hiding the fact that their was liability insurance to cover this matter. All of the defendants agreed upon a failure to act in this matter, either to repair the drainage problem or to offer plaintiffs an equitable settlement. In late spring-early summer, 2000, defendants Cook, the Lusk entities and Baughman met at Baughman's office and agreed to take no action to assist plaintiffs in repair of the drainage problem they had caused. It was their intention to ignore the plaintiffs'claims, having full knowledge that plaintiffs were incurring financial hardship due to the flooding of their property, and that they did not have the money to repair it themselves or try and pursue litigation. All of the defendants agreed to willfully and maliciously cause injury to the plaintiffs' reputation and business, continuing financial hardship, intentional emotional distress to plaintiffs and their children, and continuing detriment to the plaintiffs. The defendants' acts, and failures to act, constituted a meeting of the minds on the part of all defendants to defraud and defame the plaintiffs to their detriment, and is hereinafter referred to as "the schemed plan."

153. Defendants Spahn, Martin-Pringle, Gunderson, Nelson & Gunderson, Rumsey, Rumsey & Cleary (representing Cook, the Lusk entities and Baughman from approx. March, 2000 until April, 2001) had full knowledge of the schemed plan entered into by their clients. Attorneys Spahn, Gunderson and Rumsey participated in carrying out the schemed plan for their clients.

154. All of the defendants' involvement in "the schemed plan" interfered with the attorney/client contractual relationship between plaintiffs and Mr. Ayesh.

155. Mr. Ayesh violated his own attorney/client contractual relationship he had with the plaintiffs by participating in the schemed plan.

156. All of the defendants' involvement in the schemed plan interfered with plaintiffs' prospective business advantage with Haysville Intrust Bank and others in the building and real estate business.

157. The schemed plan included the influencing of numerous attorneys contacted by Mrs. Heffington to assist or represent them in their previous lawsuit, thereby depriving plaintiffs of proper legal representation and violating their 5th & 14th Amendment Right to due process of law.

158. The schemed plan included influencing Cook's, Lusk's and Baughman's insurance companies, several local, state and national organizations, and the news media not to assist plaintiffs in their efforts to pursue justice and/or acquire legal representation, thereby depriving plaintiffs of their 5th & 14th Amendment Right to due process of law under the U.S. Constitution.

159. The schemed plan included implementation of a method or procedure to prevent plaintiffs from acquiring any publicity of their previous lawsuit that might negatively affect public opinion of WABA, the National Association of Home Builders, or the legal profession as a whole.

160. The defendants' participation in the schemed plan was intentional and willful, and under color of state law @ 18 USC 242, deprived plaintiffs of their 5th Amendment right to due process of law protected by the U.S. Constitution protected by the due process clause of the 14th Amendment.

161. Acting under color of state law @42 USC 1983, the conduct of the defendants in participating in the schemed plan to influence state actors, including but not limited to, employees of the Kansas Insurance Commission, Kansas Securities & Exchange Commission, the Derby mayor, Sedgwick County District Attorney's Office, and Sedgwick County District Court employees, was with malice and infringed on the plaintiffs' Civil Rights under their 5th & 14th Amendment right to due process of law protected by the U.S. Constitution.

162. All of the defendants' participation in the schemed plan was dishonest, unreasonable and in bad faith.

163. All of the defendants' participation in the schemed plan was outrageous and atrocious.

164. Although the schemed plan was devised on or about May 1, 2000, it continues to the present. The defendants continue to maintain their position, and have yet to offer plaintiffs an equitable settlement or repair of the drainage problem.

165. As part of the schemed plan, defendants Spahn, Martin-Pringle, Gunderson, Nelson & Gunderson, and Ayesh induced court employees and officials to tamper with evidence in plaintiffs' previous lawsuit in an effort to cause them to lose their appeal.

166. Because of the defendants' acts and failures to act in association with the schemed plan, and as a result of the flooding and ponding, plaintiffs have suffered damages, including, but not limited to: devaluation of the property, removal of trees which enhanced the property's value, additional repair work and excavation, the incurrence of additional loan interest, expenses and charges for maintaining the property, loss profits from the sale of the property, loss profits from plaintiffs' current and future business operations as both a builder and realtor, defamation of business, damage to plaintiffs' reputation, intentional emotional distress (tort of outrage) caused to the plaintiffs and their children, and severe mental anguish and suffering caused by plaintiffs having to represent themselves (tort of outrage).

167. Plaintiffs have demanded that defendants rectify the flooding and ponding problem, take action to restore the plaintiffs' business reputation, and make plaintiffs whole for their losses. Defendants have refused plaintiffs' demands.

E. LAW AND ANALYSIS

167. Defendants the Lusk entities failed to duly register 64 lots in the Huckleberry Estates Addition to the City of Derby in Sedgwick County with the Kansas Securities Commission as required by the Kansas Uniform Land Sales Practices Act. In doing so, they failed to provide plaintiffs and other persons/purchasers with the necessary public offering statement to disclose to them accurate property characteristics, drainage information and advertising materials which were not false and misleading. Defendants the Lusk entities, Baughman and Cook violated numerous city, county, state and national laws, statutes,ordinances and regulations, including but not limited to: Kansas Consumer Protection Act (the Lusk entities and Baughman), Clean Water Act (the Lusk entities and Baughman), Kansas Department of Agriculture Division of Water Resources Rules and Regulations - K.S.A.82a-301 to 305A (Cook), Kansas Real Estate Laws (the Lusk entities), Uniform Building Code (Cook), Derby and Wichita/Sedgwick County Subdivision Regulations (the Lusk entities and Baughman), and the State Board of Technical Professions (Baughman). All of the defendants violated plaintiffs' rights under the 5th and 14th Amendments to the U.S. Constitution, as well as 18 USC 1963 and 42 USC 1983.

F. CAUSES OF ACTION AGAINST ALL DEFENDANTS

1. Intentional Fraud

169. Plaintiffs incorporate by reference paragraphs 1 through 168 of this Petition.

170. At all relevant times, defendants Cook, the Lusk entities, Baughman and Galyon were experienced in the building industry and recognized that their fraudulent overt acts (communications, telephone calls, meetings and "mental processes") concerning this matter, from March, 2000 until April, 2001, and to the present, to cover up their wrongdoing would cause severe financial hardship and emotional distress to plaintiffs, their family and their business.

171. At all relevant times, defendants Cook, the Lusk entities, Baughman and Galyon were experienced in the building industry and recognized that their failures to act (from March, 2000 through April, 2001, and to the present) to repair the drainage problem would cause severe financial hardship and emotional distress to plaintiffs, their family and their business.

172. A t all relevant times, defendants Cook, the Lusk entities, Baughman and Galyon were experienced in the building industry (from March, 2000 through April, 2001, and to the present) and recognized the fact that plaintiffs'claims were valid and that liability insurance existed to cover their claims. Defendants Cook, the Lusk entities, Baughman and Galyon acted in bad faith toward plaintiffs as new builders by failing to reveal this to them.

173. At all relevant times, defendants Mr. Ayesh, Mr. Spahn, Mr. Gunderson and Mr. Rumsey were licensed practicing attorneys experienced in the legal field and recognized that they were engaging in fraudulent overt acts of communications, telephone calls, meetings and "mental processes" (from March, 2000 through April, 2001, and to the present) in the schemed plan to cause plaintiffs to believe that Cook, the Lusk entities and Baughman had no responsibility for repair, plaintiffs' claims were only worth $5000- $10,000, that their clients were not responsible for plaintiffs' damages. At all relevant times, these four attorneys and their respective law firms knew that their actions would cause severe financial hardship and emotional distress to plaintiffs, their family and their business.

174. At all relevant times, defendants Martin-Pringle, Nelson & Gunderson, and Rumsey & Cleary were law firms experienced in the legal field and recognized that their employees were engaging in fraudulent overt acts of communications, telephone calls, meetings and "mental processes" (from March, 2000 through April, 2001, and to the present) in the schemed plan in the schemed plan to cause plaintiffs to believe that Cook, the Lusk entities and Baughman had no responsibility for repair, plaintiffs' claims were only worth $5000- $10,000, that their clients were not responsible for plaintiffs' damages.

175. At all relevant times, defendants Continental Western Insurance Company and Continental Insurance Company (CNA), were experienced in the insurance industry and recognized that their representatives were engaging in fraudulent overt acts of communications, telephone calls, meetings and "mental processes" (from April, 2000 through April, 2001 and to the present) in an effort to hide the fact that defendants Cook and Baughman had insurance to cover plaintiffs' claims and to convince them that their claims were only worth $10,000 at best, would cause severe financial hardship and extreme emotional distress to plaintiffs, their family and their business.

176. At all relevant times, all of the defendants (i) acted with the purpose and intent of causing plaintiffs' severe financial hardship and extreme emotional distress; (ii) knew that the overt acts and failures to act resulting from their conduct was certain to cause plaintiffs severe financial hardship and extreme emotional distress; (iii) knew that the overt acts and failures to act resulting from their conduct would force plaintiffs to have to act as their own attorney; and (iv) recognized that their conduct involved a serious risk and likelihood of causing plaintiffs, their family and their business to suffer severely to their detriment.

177. The conduct of all defendants constitutes intentional fraud.

178. As a result of all defendants' intentional fraud, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney's fees, for this action; (iv) injunctive relief enjoining all defendants from continuing the intentional fraud; and (v) any other relief deemed just and equitable by the court.

2. Tortious Interference with Prospective Business Advantage

179. Plaintiffs incorporate by reference paragraphs 1 through 178 of this Petition.

180. By engaging in the schemed plan, all of the defendants acts and failures to act interfered with plaintiffs' reasonable expectancy of economic gain resulting from the sale of the home on Lot 9.

181. By engaging in the schemed plan, all of the defendants engaged in conduct that had an adverse affect on plaintiffs' business relationship with Haysville Intrust Bank and other lending institutions.

182. All of the defendants involvement in the schemed plan intended to cause destruction of and harm to plaintiffs' business relationship with Haysville Intrust Bank and other lending institutions.

183. All of the defendants acts and failures to act were a proximate cause of the destruction of and harm to plaintiffs' business relationship with Haysville Intrust Bank and other lenders. The defendants had full knowledge that their acts and failures to act would would result in injury to the plaintiffs. The resulting injury was serious and substantial.

184. The conduct of all of the defendants constitutes tortious interference with prospective business advantage.

185. As a result of all of the defendants' interference with prospective business advantage, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all of the defendants awarding to plaintiffs (i) damages in excess of $75,000.00; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney's fees, for this action; (iv) injunctive relief enjoining all defendants from continuing interference with plaintiffs' prospective business advantage; and (v) any other relief deemed just and equitable by the court.

3. Bad Faith

186. Plaintiffs incorporate by reference paragraphs 1 through 185 of this Petition.

187. By participating in the schemed plan, all of the defendants acted in bad faith, with willful rendering of imperfect performance in their respective occupations.

188. At all relevant times, defendant Cook had a legitimate insurance contract with Continental Western Ins. Co. who intentionally refused to pay plaintiffs, as third party beneficiaries, a reasonable offer of settlement.

189. At all relevant times, defendant Baughman had a legitimate insurance contract with Continental Ins. Co. who intentionally refused to pay plaintiffs, as third party beneficiaries, a reasonable offer of settlement.

190. At all relevant times, there was no legitimate or arguable reason for defendants Continental Western Ins. and Continental Ins. to refuse to pay plaintiffs a reasonable settlement offer, and intentionally failed to determine whether there was one.

191. At all relevant times, defendant Ayesh had a duty to act in good faith toward plaintiffs with whom he had a legal contract with to represent them.

192. All of the defendants' participation in the schemed plan constitutes bad faith.

193. As a result of the defendants' bad faith, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all defendants awarding to plaintiffs (i) damages in excess of $75,000.00; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney's fees, for this action; and (iv) any other relief deemed just and equitable by the court.

4. Estoppel by Conduct/Negligence/Representation/Silence

194. Plaintiffs incorporate by reference paragraphs 1 through 193 of this Petition.

195. All of the defendants' participation in the schemed plan constitutes a knowing misrepresentation of the truth and concealment of material facts to induce plaintiffs to act to their detriment.

196. At all relevant times, plaintiffs were inexperienced small business owners, and were without knowledge or means of knowing the related aspects of the building trade, including, but not limited to, the fact that a drainage plan existed and that liability insurance existed to cover their claims.

197. At all relevant times, plaintiffs believed and relied that their attorney, defendant Ayesh, was acting in good faith as their legal representative, believing his statements that their claims were only worth $5000 and that defendants Cook, Lusk and Baughman had no responsibility for damages or repair.

198. At all relevant times, plaintiffs were unaware of the defendants' participation in the schemed plan as they acted with willful rendering of imperfect performance in their respective occupations.

199. The defendants participation in the schemed plan was with the intent and full knowledge that their conduct was substantially certain to result in injury and detriment to the plaintiffs.

200. By participating in the schemed plan, the conduct of all of the defendants constitutes estoppel by conduct/negligence/representation/silence.

201. As a result of the defendants' estoppel by conduct/negligence/representation/silence, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all defendants awarding to plaintiffs (i) damages in excess of $75,000.00; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney's fees, for this action; and (iv) any other relief deemed just and equitable by the court.

5. Violations of Plaintiffs' 5th Amendment Rights
(as incorporated to the States through the 14th Amendment)

202. Plaintiffs incorporate by reference paragraphs 1 through 201 of this Petition.

203. The conduct of all defendants in acting to deprive plaintiffs of life, liberty and property without due process of law, and causing the State of Kansas to deprive them of such, constitutes a violation of the plaintiffs' rights under the Fifth Amendment to the United States Constitution, as incorporated to the States through the 14th Amendment to the United States Constitution.

204. All of the defendants owed plaintiffs a duty under the 5th and 14th Amendments not to violate their rights under the United States Constitution as citizens of the United States.

205. All of the defendants breached the duty owed to plaintiffs.

206. As a result of all of the defendants' conduct in depriving plaintiffs of life, liberty and property without due process of law, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all of the defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post-judgment interest; (iv) costs, including reasonable attorney fees for this action; and (v) any other relief deemed just and equitable by the court.

6. Denial of Plaintiffs' Rights Under Color of Law
18 USC 242

207. Plaintiffs incorporate by reference paragraphs 1 through 206 of this Petition.

208. Under 18 USC 242 color of law, the defendants' participation in the schemed plan was intentional and willful, and caused plaintiffs as citizens of the United States to be deprived of their 5th Amendment right to life, liberty and property without due process of law protected by the U.S. Constitution protected by the due process clause of the 14th Amendment.

209. All of the defendants owed plaintiffs a duty under 18 USC 242 not to violate plaintiffs' 5th Amendment right to due process of law under the United States Constitution as citizens of the United States.

210. By participating in the schemed plan, all of the defendants breached their duty owed to plaintiffs.

211. As a result of all of the defendants' conduct in causing plaintiffs to be deprived of life, liberty and property without due process of law, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all of the defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post-judgment interest; (iv) costs, including reasonable attorney fees for this action; and (v) any other relief deemed just and equitable by the court.

7. Denial of Plaintiffs' Rights Under Color of Law
42 USC 1983

212. Plaintiffs incorporate by reference paragraphs 1 through 211 of this Petition.

213. Under 42 USC 1983 color of law, the conduct of all defendants participation in the schemed plan under the color of law caused plaintiffs as citizens of the United States to be deprived of their right to life, liberty, and property without due process of law under the 5th and 14th Amendments secured by the U. S. Constitution.

214. Acting under the color of state law @42 USC 1983, the defendants' participation in the schemed plan included influencing state actors to infringe on the plaintiffs' civil rights protected by the 5th Amendment right to due process of law protected by the U.S. Constitution.

215. The defendants' participation in the schemed plan involved influencing state actors, including, but not limited to, employees and representatives of the Kansas Insurance Commission, the Kansas Securities & Exchange Commission, the City of Derby, the Sedgwick County District Attorney's Office, and the Sedgwick County District Court not to assist plaintiffs in obtaining legal assistance and/or representation or to assist them in their quest for justice.

216. Between January and March, 2001, the defendants'participation in the schemed plan caused state actors employed by the Kansas Insurance Commission to act in bad faith by refusing to assist plaintiffs in their quest for justice.

217. In late spring, 2001, the defendants' participation in the schemed plan caused state actors employed by the Sedgwick County District Attorney's Office to act in bad faith by refusing to legally assist plaintiffs in legally pursuing their claims under the Kansas Consumer Protection Act.

218. In the summer of 2001, the defendants participation in the schemed plan caused state actors employed by the Kansas Securities & Exchange Commission to act in bad faith by refusing to legally assist plaintiffs in pursuing their claims under the Kansas Uniform Land Sales Practices Act.

219. The aforementioned state actors had a duty to plaintiffs to pursue legal and/or administrative action against the defendants for violations of local, state and national laws, statutes, ordinances and regulations and thereby protect plaintiffs 5th Amendment Right to due process of law protected by the 14th Amendment to the U.S. Constitution.

220. By participating in the schemed plan to violate plaintiffs' rights, the defendants' conduct caused the aforementioned state actors to breach their duty owed the plaintiffs. The defendants' conduct was grossly disproportionate under such circumstances, and must have been inspired by malice, so as to amount to abuse of official power that shocks the conscience of a reasonable person.

221. The defendants' conduct constitutes liability to the plaintiffs for their injuries.

222. As a result of the defendants' conduct which infringed on plaintiffs' civil rights protected by the 5th Amendment right to due process of law under the U.S. Constitution, by causing the state actors to breach their duty owed the plaintiffs, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all of the defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post- judgment interest; (iv) costs, including reasonable attorney fees for this action; and (v) any other reliefdeemed just and equitable by the court.

8. Outrageous Conduct Causing Severe Emotional Distress
(TORT OF OUTRAGE)

223. Plaintiffs incorporate by reference paragraphs 1 through 222.

224. All of the defendants conduct in participating in "the schemed plan" to defraud and defame plaintiffs was extreme and outrageous.

225. At all relevant times, the defendants participation in "the schemed plan" was intentional, and with full knowledge that their conduct was substantially certain to result in severe emotional distress and bodily harm to plaintiffs and their family.

226. Due to the defendants acts and failures to act, plaintiffs suffered defamation and were subjected to public hatred, contempt and ridicule. Mrs. Heffington was told she was "Typhoid Mary" and "Sue-Crazy" by other experienced professionals in the real estate industry.

227. Mrs. Heffington suffered severe emotional distress and bodily harm as a result of all the defendants participation in "the schemed plan,"including, but not limited to: depression, anxiety attacks, suicidal thoughts, headaches, back and neck pain, severe skin cancer, neurodermatitis, eye ulcers, contact dermatitis, digestive problems and osteoarthritis. Mr. Heffington continues to suffer from depression and drinks heavily.

228. By participating in the schemed plan, all of the defendants' conduct was in bad faith, and violated the duties of good faith and fair dealing toward the plaintiffs in this matter.

229. The conduct of all defendants was so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Reciting the facts in this matter to an average person would cause resentment toward all defendants, and lead them to exclaim: "Outrageous!"

230. The conduct of all of the defendants by participating in the schemed plan to cause plaintiffs to act to their detriment constitutes intentional infliction of emotional distress.

231. As a result of the outrageous conduct intentional infliction of emotional distress by all defendants, plaintiffs and their family have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against all of the defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post- judgment interest; (iii) costs, including reasonable attorney fees, for this action; (iv) injunctive relief enjoining all defendants from continuing the intentional infliction of emotional distress; and (v) any other relief deemed just and equitable by the court.

G. ADDITIONAL CAUSES OF ACTION AGAINST DEFENDANTS
SPAHN, MARTIN &endash;PRINGLE, GUNDERSON, NELSON & GUNDERSON, CONTINENTAL INS. (CNA), RUMSEY,
RUMSEY & CLEARY,AND CONTINENTAL WESTERN INS.

1. Civil Conspiracy/Collusion

232. Plaintiffs incorporate by reference paragraphs 1 through 231 of this Petition. The conduct of the above named defendants in agreeing with defendants Cook, Lusk, Baughman, Galyon and Ayesh to participate in the schemed plan to defraud and defame the plaintiffs (approx. March, 2000 until April, 2001 and beyond) constitutes civil conspiracy/collusion.

233. By participating in the schemed plan, the above named defendants participation in the schemed plan acted with the intent of ruining plaintiffs' business, having full knowledge that such acts, and failures to act, were substantially certain to result in injury and detriment to the plaintiffs and their family.

234. The conduct of the above named defendants constitutes civil conspiracy/collusion.

235. As a result of the above named defendants' fraud by commission, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against the above named defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney fees, for this action; (iv) injunctive relief enjoining all defendants from continuing the civil conspiracy/collusion; and (v) any other relief deemed just and equitable by the court.

2. Fraud by Commission

236. Plaintiffs incorporate by reference paragraphs 1 through 235 of this Petition.

237. All of the above named defendants participation in the schemed plan constitutes a knowing misrepresentation of the truth and concealment of material facts to induce plaintiffs to act to their detriment.

238. At all relevant times, the above named defendants participation in the schemed plan was willful, and with full knowledge that such conduct was substantially certain to result in injury and detriment to the plaintiffs and their family.

239. The conduct of the above named defendants constitutes fraud by commission.

240. As a result of the above named defendants' fraud by commission, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against the above named defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney fees, for this action; (iv) injunctive relief enjoining all defendants from continuing the fraud by commission; and (v) any other relief deemed just and equitable by the court.

3. Negligence

241. Plaintiffs incorporate by reference paragraphs 1 through 240 of this Petition.

242. By participating in the schemed plan, the above named defendants' conduct in failing to provide adequate professional services required of their respective occupations to their clients, and to plaintiffs, as third party beneficiaries, constitutes negligence.

243. As a result of the negligence of the above named defendants, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against the above named defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney's fees, for this action; and (iv) any other relief deemed just and equitable by the court.

4. Detrimental Reliance

244. Plaintiffs incorporate by reference paragraphs 1 through 243 of this Petition.

245. In entering into a legal contract with defendant Ayesh to represent them as counsel, plaintiffs relied upon the representations of Ayesh that he was an accomplished attorney with considerable legal experience.

246. Plaintiffs relied in good faith upon representations of Mr. Ayesh that their claims against Cook, the Lusk entities and Baughman (including, but not limited to, negligence, trespass and breach of contract) were valid and supported, that he was suing for "a million dollars", and that he would file the petition he had prepared.

247. Plaintiffs were justified in their reliance.

248. Plaintiffs relied to their detriment, and as a result, suffered damages in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against the above named defendants awarding to plaintiffs (i) damages in excess of $75,000.00; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney's fees, for this action; and (iv) any other relief deemed just and equitable by the court.

H. ADDITIONAL CAUSE OF ACTION AGAINST DEFENDANTS COOK, THE LUSK ENTITIES, BAUGHMAN, GALYON, AYESH, SPAHN,MARTIN-PRINGLE, GUNDERSON & NELSON & GUNDERSON

1. Outrageous Conduct Causing Severe Emotional Distress
To Third Persons &endash; Immediate Family

249. Plaintiffs incorporate by reference paragraphs 1 through 248 of this Petition.

250. The conduct of the above named defendants in participating in the schemed plan to defraud and defame plaintiffs and induce them to drop their previous lawsuit (from approx. March, 2000 to April, 2001 and beyond) was extreme and outrageous.

251. In July, 2002 the outrageous conduct of the above defendants in the schemed plan led them to bring unwarranted charges against a third person, plaintiff's 15-year old son, Garrison Moore.

252. On January 10, 2002, Garrison told plaintiffs that someone intended to"shoot up" the Derby Middle School the next day. Ascertaining that her son was telling the truth, Mrs. Heffington called the police who took a report. The Derby police did not believe Garrison, however, a JYAC officer told Mrs. Heffington that night that she felt the police had made a mistake. A student was investigated and arrested by Derby police the next morning as the alleged shooter; however, criminal charges were brought against Garrison months later for Filing a False Alarm.

253. The charges against Garrison by the Derby police and the Sedgwick County District Attorney were brought in July, 2002, six months after the incident occurred and several months after plaintiffs had filed a Notice of Appeal in their previous lawsuit. Garrison had no previous record.

254. As a result of the defendants' conduct in causing unwarranted charges to be brought against Garrison Moore, plaintiffs and their son suffered severe emotional distress and bodily harm from July, 2002 to the present while waiting for the impending trial.

255. Due to the defendants' conduct, Garrison felt destined for a life of crime. He became involved in more incidents with police as the trial date neared in February, 2003, has been in therapy since September, 2002, and was prescribed depression medication.

256. The conduct of the above named defendants in causing severe emotional distress to plaintiffs and their son was reckless and intentional, and with a high degree of risk of harm to Garrison and other schoolchildren.

257. The above named defendants were indifferent to the consequences of their conduct under circumstances which involved danger to life or safety of plaintiffs' son and other schoolchildren. They had reason to know of the facts, were indifferent to the harm that could result, and brought meritless charges against Garrison anyway.

258. The above named defendants were substantially certain that their conduct would result in severe emotional distress to plaintiffs and their son.

259. The conduct of the above named defendants in causing meritless charges to be brought against Garrison Moore constitutes outrageous conduct causing severe emotional distress to a third person in plaintiffs' immediate family.

260. As a result of the outrageous conduct causing severe emotional distress to Garrison Moore, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request judgments of the court against the above named defendants awarding to plaintiffs (i) damages in excess of $75,000.00 for each defendant; (ii) pre-and post-judgment interest; (iii) costs, including reasonable attorney's fees, for this action; (iv) injunctive relief enjoining all defendants from continuing the outrageous conduct causing severe emotional distress to all third persons in plaintiffs' immediate family; and (v) any other relief deemed just and equitable by the court.

I. ADDITIONAL CAUSE OF ACTION
AGAINST DEFENDANT AYESH

1. Fraud Through Silence

261. Plaintiffs incorporate by reference paragraphs 1 through 260 of this Petition.

262. Ayesh's conduct in participating in the schemed plan represents a knowing misrepresentation of the truth and concealment of material facts to induce plaintiffs to act to their detriment.

263. At all relevant times, Ayesh' participation in the schemed plan was willful, and with full knowledge that such conduct was substantially certain to result in injury and detriment to the plaintiffs and their family.

264. Defendant Ayesh had a legal contract to represent plaintiffs (from approx. April 27, 2000 until November 8, 2000) and had a duty to tell plaintiffs that defendants Cook, Lusk and Baughman had insurance to cover their claims.

265. Defendant Ayesh breached his duty to the plaintiffs.

266. The conduct of defendant Ayesh constitutes fraud by silence.

267. As a result of defendant Ayesh's fraud by omission, plaintiffs have been damaged in excess of $75,000.00.

WHEREFORE, plaintiffs respectfully request a judgment of the court against defendant Ayesh awarding to plaintiffs (i) damages in excess of $75,000.00; (ii) pre- and post-judgment interest; (iii) costs, including reasonable attorney fees, for this action; and (iv) any other relief deemed just and equitable by the court.

Respectfully submitted,

MARK AND JOAN HEFFINGTON
7145 Blueberry Lane
Derby, Kansas 67037

By________________________________
Mark W. Heffington

By________________________________
Joan E. Heffington

DEMAND FOR JURY TRIAL

Plaintiffs respectfully request that the issues in this matter be heard by a jury.

Respectfully submitted,

MARK AND JOAN HEFFINGTON
7145 Blueberry Lane
Derby, Kansas 67037

By________________________________
Mark W. Heffington

By________________________________
Joan E. Heffington

Attachment A

Attachment B

Attachment C

Attachment D (final page):