Omega Lift will go to court after failing to deliver a telescopic forklift

Omega Lift Distributors Inc, Greg Pannia, Cathy Visco and Shaun Casement are scheduled to face a jury trial beginning on 20 April before Judge Jorge A Solis in the US District Court in Dallas.

LoneStar Forklift Inc of Garland, Texas sued three Omega Lift entities and the three individuals for fraud and misrepresentation, initially on 16 September 2013 in the 95th civil district court for Dallas County. The entities were Omega Lift Distributors Inc, Omega Lift Manufacturing Inc and Omega Lift International Inc, all based in Bolton, Ontario, Canada.

At Omega Lift's request, the case transitioned to the federal court for the northern district of Texas on 18 October 2013. In a court filing, LoneStar says "Omega Lift has failed and refused to refund USD101,000 or deliver the (arm telescopic forklift model ARM 10T55-E) to LoneStar as it promised to do." Along with the three individuals, the Omega Lift Distributors entity remains as the lone corporate defendant in the federal case.

Speaking to Forkliftaction.com News, Pannia blamed the problems on delays in international fund transfers and what he called LoneStar's unreasonable deadlines for delivery of the machine to Texas from Ontario.

Pannia says he offered a 10% refund to compensate LoneStar for the delay and to pay any outstanding LoneStar lawyer fees. "We cannot be setting a precedent for people ordering machines and changing their mind," Pannia notes. "We stepped up to the plate. The machine always has been available for them to pick up."

Representing LoneStar are three attorneys for the Horton & Archibald PC law firm: Garon Ray Horton and Richard T Archibald in Rockwall, Texas and Beth Upchurch in Heath, Texas.

"It is a pretty clear-cut case," Horton says. "What Omega did to LoneStar Forklift is improper."

Pannia says in a statement: "Omega Lift does not discuss the particulars of matters before the courts. Omega Lift has retained lawyers in Texas and is vigorously defending the allegations against Omega Lift and its representatives. Omega Lift adamantly denies any fraud or wrongdoing. This is simply a business dispute, and Omega Lift is confident it will ultimately be vindicated. It is unfortunate that it has come to this as Omega Lift has tried a number of times to settle any outstanding issues in relation to this case."

Omega Lift's corporate attorney is Bobby H Sachdeva, a partner with the law firm of Pallett Valo LLP in Mississauga, Ontario, Canada.

LoneStar has a different version. The LoneStar litigation says Omega Lift regional sales manager Tim Hayes contacted LoneStar in mid-2012 regarding dealer licensing opportunities. Hayes provided a sales quote on a machine in November 2012 and directed LoneStar to contact Omega inside sales manager Casement for additional assistance with any order.

In February 2013, LoneStar ordered the Omega Lift forklift and related accessories, according to court records. Omega Lift promised delivery within 18 to 20 weeks, "which was critical to LoneStar's decision to purchase the machine given delivery deadlines imposed by LoneStar's customer and ultimate end-user of the machine". As requested, LoneStar paid a deposit of USD10,099.99 by wire transfer.

In June, the litigation says Visco represented that the machine was "in the final stages of production" and could be shipped after payment of the final balance. LoneStar paid the remainder of USD90,899.99 by wire transfer on 10 June 2013. The two amounts total USD100,999.98.

Excuses ensued during June and July. "Omega Lift continued to change its story about the completion and shipment date of the machine until, finally, Omega Lift quit responding to any of LoneStar's inquiries." LoneStar's counsel contacted Pannia in late July, and the parties went through a series of unfruitful negotiations and exchanges. Pannia is listed as Omega Lift president and chief executive officer.

The law suit says: "As a direct and proximate result of Omega Lift's failure to perform under the contract, LoneStar was caused to incur costs and expenses including, but not limited to, the USD101,000 payment paid to Omega Lift by LoneStar for a machine that was never completed, shipped and/or provided to LoneStar; and lost profits as a result of LoneStar's customer cancelling the order for the machine (due) to the delay in delivery."

LoneStar alleges breach of contract against the corporation and both violation of the Texas deceptive trade practices act and material misrepresentation fraud against each defendant.

Horton notes: "We ordered. We paid. We laid it straight out there (in the law suit)."

Horton says that Omega Lift "is now on its third set of counsel" in defending the actions. "The current indication is they are still trying to protect something," he says.

Pannia says a pending motion would remove Visco and Casement as defendants. "They are merely employees," he notes.

Judge Solis has ordered completion of discovery documents by 11 November, filing of motions by 28 November and completion of pretrial materials by 8 April in advance of the expected two-week jury trial.

Pannia hopes "to make concessions" to avoid a trial. "We have offered the machine and certain refunds."

Omega Lift is the subject of several reader complaints to Forkliftaction.com News and a number of disgruntled buyers will be watching the action with interest.