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K & K Recycling11/14/2003
this dredge and would only fit this dredge. These items should be fairly easy to identify." This description of "equipment and related facilities" plainly excludes the Old Town buildings.
Moreover, sometime before October 16, 1998, Karl walked through the Old Town and identified equipment he thought was associated with the dredge. Richard Haggart, attorney for Seuffert, faxed Sheehan a letter suggesting that now that the dredge was moved as well as all of the materials identified in court, a stipulation dismissing the case would be appropriate. Sheehan faxed back on October 16 as follows:
In response to your October 15, 1998, correspondence, you are correct, the Dredge move has been completed. As of yet, not all of the equipment and related facilities have been moved. I cannot give you a list of items left to be moved, however, I am told that there are a number of items, some of which are in the warehouse, blacksmith shop, machine shop, and parts in the vicinity of these buildings. K&K;has not moved any of these items, because Mr. Seuffert was not available when K&K;was ready to make the move. K&K;has since demobilized for the winter. K&K;will complete the movement of the remaining equipment and related facilities as soon as the spring weather permits.
K&K;is not prepared to dismiss the pending litigation until all of the property is moved. I will be filing a status report with the court advising my understanding of where we are.
(Emphasis added.)
The language of this letter makes it clear that what is in dispute are the items contained within and in the vicinity of these buildings, not the buildings themselves. An affidavit signed by Bernie Karl, president of K&K; dated October 30, 1998, also makes clear that what is in dispute is "a substantial amount of equipment and related facilities located in the warehouse, blacksmith shop, machine shop, and in the vicinity of these buildings" not the buildings themselves. Karl continues in his affidavit:
Previously, when I had discussions with Mr. Seuffert concerning the equipment and related facilities, no mention was made of the items in the warehouse, blacksmith shop, machine shop, and the vicinity of these buildings. I do not know if Mr. Seuffert is aware of what is in these buildings, or whether he is aware that these items are only usable with the dredge owned by K&K;
On November 9, 1998, Haggart on behalf of Seuffert again inquired of K&K;s counsel as to what K&K;was "now claiming with respect to `related equipment and facilities' ":
I have reviewed the tape of proceedings before Judge Funk on September 21, 1998, and it appears quite clear that the parties placed a settlement on the record stating that all issues relating to identification and division of the "related equipment and facilities" had been resolved. It now appears that K&K;is taking the position that additional material is due them under the contract, which would be a change from what was stated in court.
This does not seem appropriate given the fact that K&K;presumably had ample opportunity to inspect the property it was buying at the time it negotiated the sale with AGC, it had an opportunity to identify all property claimed prior to the court hearing of September 21st, and the settlement placed on the record in open court clearly specified that the issue had been entirely resolved between the parties.
If we are talking a matter of a few feet of pipe, then obviously Mr. Seuffert is not interested in returning the matter to full scale litigation. If K&K;s claims are more extensive, please provide a specification of exactly
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