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CABANA CLAIMS AGAINST CM PUNK DISMISSED, CABANA FILES AMENDED LAWSUIT

By Mike Johnson on 2018-12-10 15:21:00

Note: This article has been amended to reflect that the lawsuit ongoing still remains the same lawsuit.  The initial claims were thrown out but the lawsuit is still considered one ongoing case, not two separate claims as initially written.  My apologies for any confusion.

The claims in the lawsuit brought by Scott “Colt Cabana” Colton filed this past August against Phil “CM Punk” Brooks, alleging unpaid legal fees and breach of contract (stemming from the lawsuit that WWE physician Doctor Chris Amann filed against the two in regard to Punk's appearance on Cabana's Art of Wrestling podcast) were completely thrown out last month by Judge Daniel Kubasiak of the Cook County Circuit Court in Illinois, leading to Cabana filing a second, amended lawsuit against the former WWE Champion.

As previously reported, Cabana's 15-page lawsuit alleged that "Brooks acted with fraud, malice and oppression toward Colton, with the deliberate intention of causing Colton harm."  Cabana is alleging that when Dr. Amann's attorneys contacted him with a cease and desist letter related to the podcast in December 2014, Punk told him not to respond.  When Amann filed his lawsuit against them, Cabana alleged that Punk told him, via text, that his legal bills would be covered.   Cabana had been asking for $1 Million in punitive and exemplary damages and $200,000 (aka the cost of his representation during the Amann lawsuit) in general damages. 

On 10/25, Punk’s attorneys responded to the lawsuit, filing an argument that noted, “At the outset, Plaintiffs Response inappropriately references allegations as "uncontested" facts, not simply in brazen mischaracterization of the record, but also  apparent regard to the substantive questions of law which are the subject of Defendant's Motion to Dismiss. Then, building on the shaky foundation of these presumed "facts," Plaintiff doubles down on the very arguments that demonstrate the deficient pleadings contained throughout the

Complaint: first, that Defendant's text messages to Plaintiff regarding the status of and potential response to a demand letter constituted an to pay hundreds of thousands of dollars in legal fees in a protracted litigation for  defamation; second, that as consideration, in return for Defendant "offering" to pay for hundreds of thousands of dollars in legal fees, Plaintiff' would not remove his own podcast episode for which Plaintiff, and not the Defendant, makes money; and finally, that defendant’s conduct rose to the level of fraud based on the fact that he later stopped paying for Plaintiff’s legal fees.”

On 11/26, The court sided with Punk’s attorneys, ruling that in his original lawsuit, Cabana “has failed to allege that Brooks provided an offer that was definite and certain enough to support an enforceable contract.”  The court also ruled that Cabana had not alleged that the two parties agreed that Cabana would not comply with Dr. Amann’s legal demands as consideration for Punk to pay his legal fees.  The Court also agreed that Cabana failed to allege “Brooks’ knowledge and intent in making alleged misrepresentations” about paying Cabana’s legal bill.  The court also ruled Cabana “has not alleged that Brooks’ representations were part of a scheme to defraud.”

Basically, the court determined that Cabana’s allegations did not meet the standard required by law in the State of Illinois and that he failed to show that anything Punk had done was done with deliberate intent to defraud him.  The court also ruled that nothing Cabana had shown was a contract that could be enforceable by law, therefore there were no damages he could go after.

The dismissal of the claims were not done with prejudice, allowing Cabana the chance to re-file with an amended complaint and once again attempt to sue Punk for damages.  That happened ten days later, again before the Cook County Circuit Court in Illinois on 11/26.

In the new 14-page filing, Cabana again alleges that after the now legendary podcast with CM Punk, he received a demand letter from attorneys representing Dr. Chris Amann, noting, “The Demand Letter asserted that Colton had caused the dissemination of certain false statements to the general public regarding Amman and demanded that Colton immediately remove the Podcast from further distribution and "within fourteen (14) days of the date of this letter you execute a retraction of the false and defamatory statements, in a manner and form to be agreed upon."

As previous reported, Cabana went to Punk and Punk informed him he would have his attorney “handle it.”  The amended lawsuit noted that Cabana “is informed and believes, and based thereon alleges, that Brooks believed that the Demand Letter was initiated at the behest of the WWE in retaliation for various adverse actions Brooks had taken against, and threats that Brooks had made about, the WWE and its management during Brooks' career with the WWE.  Colton is further informed and believes, and based thereon alleges, that Brooks also believed that Brooks' statements about the WWE during the Podcast were likely to lead to litigation against Brooks.”

So, Cabana is now alleging that on that podcast episode, Punk made his statements knowing that WWE would likely come after him legally.

Cabana also noted that after he was told that Punk’s attorney would “handle it” and that Cabana would be “100% covered” (as seen in text messages that Cabana brought forth as evidence):

“Colton notified Brooks of Colton's acceptance of Brooks' offer and agreement to cover 100% any and all liability, attorneys' fees and costs Colton might incur as a result of Colton's failure or refusal to comply with the demands contained in the Demand Letter, in consideration for which Colton agreed that he would: (i) not comply with the demands contained in the Demand Letter and (ii) assist and cooperate with Brooks' defense in any related litigation against Brooks.”

So, Cabana is now claiming that he agreed to assist Punk in the legal battle against Amann in exchange for Punk paying his legal bill and as part of that agreement, agreed not to cooperate with any of Amann’s demands.

Cabana said he did not cooperate with Amann, leading to the lawsuit filed against himself and Punk, which they later won successfully in court via a jury decision.  He took on Punk’s attorneys, The Loeb Firm, who noted in writing they "will bill (Brooks) for all of the legal services and expenses that we incur with respect to the Amann Lawsuit" and that "It is our understanding that Phil will be responsible for paying these invoices."  Cabana filed copies of those communications with the court.

In the amended lawsuit, Cabana states that Punk paid all the legal bills through late April 2016 (during which Cabana claims that he did everything expected of him, per his agreement with Punk), at which point Cabana alleges that he received an April 2016 email from Punk regarding a financial billing Punk had received from his legal representatives, Loeb & Loeb, with Punk writing, "To date I have spent $513,736 dollars on this Amman lawsuit.  My outstanding bill is at least 300K.  Half of all this is yours.  Divide the 513,736 by 2 that is what you owe me and what I expect you to pay me.  Starting now, I will no longer be paying your bills.  You are on your own.  Whatever my bill is currently, will be cut in half and half will be yours.  If you choose to make this all ugly, that's fine too.  I hope you won't, but I gave up on you doing what is right a long time ago."

Obviously, there was a schism here between Punk and Cabana for something, but as of this writing, there is nothing filed with the court to explain what happened and obviously, neither side is going to comment while there is ongoing litigation.

Cabana states in the new lawsuit, he informed Loeb & Loeb that he intended to bring on  a different attorney to represent him, alleging, “Colton is informed and believes, and based thereon alleges, that Brooks was thereupon advised and knew that if Colton substituted counsel in the Amman Lawsuit, Colton would likely attempt to enter into a separate settlement agreement to terminate the Amann Lawsuit as to Colton and that if such a settlement could be effectuated, Colton would no longer assist or cooperate in Brooks' defense in the Amman Lawsuit.”

So, Cabana is now stating that if Punk wasn’t going to pay his legal fees and if he was going to have to get his own attorney, Punk allegedly knew that Cabana would settle with Amann and no longer assist Punk’s own defense.  

Cabana is also alleging that when he was later told by Punk's attorney that he would continue to represent Cabana, even if Cabana wasn't paying the fees, as long there "is no conflict between you and Phil that prevents me from morally and ethically representing you.”, that was allegedly something the attorney did at the behest of Punk in order to protect Punk’s own legal case.

Cabana retained Loeb & Loeb until March 2017, when he claimed that he was forced to hire his own representation.  In the lawsuit, Cabana stated he was "informed and believed" that Punk caused Loeb & Loeb to withdraw as Cabana's attorney and that it was done after all discovery regarding Cabana had been completed in the lawsuit and done even though there was nothing that prevented Punk’s attorneys from representing Cabana morally and ethically.

After their courtroom victory over Amann's lawsuit, Cabana's attorneys approached Punk, seeking payment of $200,000, the cost of Cabana's legal fees post-Loeb & Loeb.  Punk turned that overture down, leading to Cabana's now amended breach of contract lawsuit.   

In the amended lawsuit, Cabana now alleges that had Brooks not entered into an agreement with him, Cabana would have “complied with each of Amann’s demands in the Demand Letter” and would not have assisted or cooperated in Brooks’ defense in the Amann lawsuit.   He also claims that had it not been for the agreement between the two, he would have hired his own lawyer to pursue a settlement with Amann and “in the event such a settlement agreement was effectuated, would have ceased to assist or cooperate in Brooks’ defense in the Amann lawsuit.”

Cabana also stated that per his obligations to Punk, he “later assisted and cooperated in Brooks’ defense” of the Amann lawsuit and per a “renewed Indemnity Agreement” (which he is claiming was created when Punk’s attorneys agreed to keep him on without Cabana having to pay them), “ Colton did not substitute counsel in, or attempt to enter into a separate settlement agreement to terminate, the Amman Lawsuit as to Colton.”

Cabana also stated that he is “informed and believed” that had he just complied with the Amann demand letter, he never would have been a defendant and never would have suffered any costs over the defense of the lawsuit, costing him personally more than $200,000.

Cabana’s lawsuit claimed, “Brooks breached each of the Indemnity Agreement and the Renewed Indemnity Agreement by failing to cover any of Colton's costs, expenses and attorney fees incurred in connection with defending against the claims made against Colton in the Amman Lawsuit after March 10, 2017.”

Noting that Brooks has refused to reimburse those costs, Cabana is now asking for damages of at least $200,000 from Punk.  He was asking for $1 Million in punitive and exemplary damages and $200,000 (aka the cost of his representation during the Amann lawsuit) in general damages in the original lawsuit.  He is seeking a jury trial. 

In speaking to a lawyer who follows professional wrestling, he estimated that Punk’s own total legal bill for the Amann lawsuit is likely in the high-six figure or low-seven figure range, based on the amount of time and work that went into building the case.    The same source stated that the new suit that is filed is very similar to the first, just worded differently and now alleging that Cabana wouldn't have helped Punk at all had they not come to the now-disputed agreement over Punk paying the legal fees.  

Punk is required to respond to the latest lawsuit by 12/28. 

There will be a case conference before the court on 1/4/19 to see where things stand.

Thanks to Billy Krotchsen for all his help and assistance with this story.

 

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