HomeMy WebLinkAbout98-03185
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hl'ollllh of f'irluelllry duty IIH HIlt lill'l,h ill IIw I'I,tition IInd SUllllllonH, II elll'Y of whieh
iH IIttllehllClllIlroto IIH 1';Khihil "1",
0, Doli'nrlllnt, Stllvon W, Bott., waH pOI'Honlllly HIlI'vod on 1"ohI'UIII'y ~4, Ill!)!:!,
(A copy of tho Hoturn of Sorviell hOIllIlIltt.lleIwd howto IIH KKhihil "t'),
(l, Defonrlllnt did not I'IlHpond to t!w Potitionllnd thoI'llI' 01'11, in IICcol'dllncll
with MisHouri RuloH of Civil PI'OClJdul,J, on J'vIIIY 1, W!J!:I, tho Circuit COUl't ,Judl{e
ontorod IIn interlocutory Ordor of Dofllult lIgllinst Dofondant IInd sot II hellring on
dllmlllloH Ihl' ,Juno 5, W!J!:I, A copy of tho OI'dcl' iH attached hOl'oto aB lexhihi! "a",
7, In Plaintiff's action IIgainst Defondant, Plaintiff' sooks to recover fmm
Defl'ndant, in part, tho amounts Dolimdllnt gainod from the acquisition,
development and loasinll of I'oal proporty during his contraet with THF RUlllty,
8, Upon information Plaintiff believes that Defendant had substantial
dealings with Rite Aid Corporation and, as a rosult, in preparation for its
pl'esentation of its claim for damages, THF Realty seeks copies of all documents in
the possession of Rite Aid Corporation which refer or relate to Defendant's
relationship with Rite Aid, including but not limited to all documents relating to
Defendant's involvement in Rite Aid's acquisition, development and leasing of real
Pl'Oplll'ty and Defendant's compensntion related thereto,
9, The efforts of Plaintiff's attorneys (both by telephone find in writing) to
obtain the required documonts from Rito Aid without n subpoena have beon
unsuccessful (seo Affidavit of attorney for THF Realty attached hereto as Exhibit
"4"),
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HI, Rito Aid hils not resJlondod to 'l'HF ROIlIt.Y'H rO\I\Wst: fOl' documont.s 01'
nUtnOI'OUH tol(Jphone mllSSIIj.(IlS, AH II l'OHUlt., IJ\lOauB\J '!'In' Helllty hils beon foreod to
petition thifl Court fill' iHSUlll1l:\1 of Iln Ol'dor for Doposition Ilnd iHHullnell of II
subpoena duces teCUI/I, tho MiHsouri eOUl't hilS I'Ollohndulod t.ho hOIlI'ing on 'I'HF'
Relllty'~ dllmllgefl 1'01' July 24, HJ!IH, (Exhibit "fj"),
II. Plaintiff seoks Iln Order from thiH honol'lIhle Court to hflve Rite Aid
COl'pol'llt.ion produce Hill dOf~il'lld documents pUl'sunnt to Huhpoona (a copy of which
is attached hereto as EKhibit "(j") and appOll1' and t.eHtify Ilt depositions on June 2!Jth
or, in the alternative, to provide thoHe documents in lieu of Ilppellring for depoHition
on the said dat.e,
12. Plaintiff, as required by Rule 4009,21 of the PennHylvllnill Rulos of Civil
Procedure, has on this dat.e provided twenty days writ.ten notico upon Defendant of
Plaintiff '8 intention to serve the subpoena on Juno 25, 1998"
13, Attached to t.his Petition is the Certificate prel'equisit.e to Service of
Subpoena required by Rule 4009,22 of the Pennsylvania Rules of Civil Procedure
(Exhibit "7") to which thel'e is attached the Notice of Intent required by Rule
4009,21 (Exhibit "8"),
14, The urgency for scheduling said deposition as early as June 29, and
seeking the production of documents on that day, I'Olates to the upcoming hearing
on July 24, 1998 (see Paragraph 10 above), and becauHe of a deposition in the
Missouri case scheduled for the first week of July in another jurisdiction, It would
not. otherwise be possible to pl'ovide the twenty dflY notice to the Defendant and
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7, THP fuUHled its obligation and paid Bott pursuant to the Contract, THP also
paid Bott for travel and promotional expcnses,
8, THF also agreed to I'ay Butt c,ommissions for property sold or leased by Bott
during the term of the Contract,
9, The terms of the Contract obligated Batt to providc his skHl and expcrtlse cs a
representative of THF, Batt's obligations included using his best efforts and dilIgence to assist
l'HP in entering agreements on behalf of THF for the acquisition and development of real
property,
10, The terms of the Contract also identified any information received by
Defendant Bott .related to a prosepective lessee, seller or purchaser during the term of the
Contract as the property of THF to be used by Bott for sole benefit of THF.
illJINT I - A-CCOill'lTING
Fol' Count 1 of its Petition THF states:
11, THF restates and incorporates paragraphs 1 through 10 by reference as if fully
set forth herein,
12, The Contract created a fiduciary relationship and a relationship of trust and
confidence under which Bott was obligated to develop and procure business opportunities for
THP as THF's representative,
13, THFwas entitled to ownership of the opportunities, expectancies, contacts and
information received by Bott during the term of the Contract.
14, On information and belief, Bott breached his fiduciary duty to THF and
withheld opportunities, expectancies, contacts and information from THF during the term of
the Contract and used these opportunities, expectancies, contacts and information for his own
benefit and to the exclusion of THP.
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15, THF Is entitled to a formal accounting of all opportunities, expectancies,
contacts and Information and any profits generated therefrom received by Bott during the term
of the Contract for one or more of the following reasons:
(a) THF has been wrongfully excluded from opportunities received or
generated by Bott during the term of the Contract and requires an accounting to
discern the nature and extent of Bott's wrongful conduct)
(b) 'Bott has failed to account to THF for all of the opportunities,
expectancies, contacts and information generated by Bott during the tenn of his
Contract with THF and these opportunities, expectancies, contacts and
information are complicated and within the sole control of Bott.
16, THF requests an immediate hearing on their request fora formal accounting, as
such an accounting Is needed for determination of t,he extent of the damages to THF caused by
Bott's breaches of his Contract (as set forth herein) with THF and his breaches of the fiduciary
duty owed to THF,
WHEREFORE, THF respectfully requests that this Court enter its Order (1) granting an ,
immediate hearing to determine whether THF is entitled to a formal accounting) (2,) requiring
Bott to provide a fonnal accounting of all of the opportunities, expectancies, contacts and
information and any equity, capital, consideration and profits generated therefrom relating to
the acquisition, development, and leasing of real propcrty by Bott since the inception of Bott's
Contract with THF) (3) requiring Bott to pay THF's costs incurred in prosecuting this lawsuit
and for such other And further relief as this Court deems just and proper under the premises,
C
For Count 11 of its Petition THF states:
17, THF restates and incorporates paragraphs 1 through 16 by reference as ff fully
set forth herein,
18, Upon information and belief, Bott used the opportunities, expectancies, contacts
and information received by him during the term of the Contract for his own benefit and
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excluded THF from both knowledge of and benefit of those opportunities, expectancies,
contacts and il1formation,
19, Upon information and belief, Dott fallcd to use his best efforts and diligence to
assist THF in the acquisition and development of real property,
20, Bott breached the Contract by failing to use his best efforts and diligence to
assist THF in the acquisition and development of real property,
21. As a direct and proximate result of Bott's breaches of contrllct, THF has incurred
substantial actual damages in the amounts advanced to Dott under the Contract in excess of
$17,000,00,
22, As a direct and proximate result of Bott's breaches of contract, THF has incurred
substantial consequential damages in the form of lost profits, inability to develop Its real estate
business in the area in which Bott was operating, and lost opportunities in excess of
$25,000,00, the exact amount of which is not ascertainable absent a formal accounting of all of
the affairs of Bott since the inception of the Contract.
WFIEREFORE, THF respectfully prays for judgment In Its favor and against Defendant
Steven Bott ill excess of $25,000,00, for Its costs and expenses Incurred herein, and for such
other and further relief as this Court deems just and proper under the premises,
COUNT III - BREACH OF HDJ.lCIARY DUTY
For Count 111 of Its Petition THF states:
23, THF restates and Incorporates by reference paragraphs 1 through 22 as If fully
set forth herein.
24, The Contract Imposed upon Bott a fiduciary duty of the utmost good faith owed
to THF in connection with the obligations Imposed by the Contract.
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~.INC.
lillPRESENTATIVE AGREEl\fENT
This REPRESENTATIVE AGREEM:~T (hereinafter referred to as the
" Agreement ") Is made and entered Into this 12' day of May, 1996 by and between THF
REALTY, INC" a Missouri corporation, (hereinafter referred to as the "Company") and
STEVEN W, BOrr (hereinafter referred to as the "Contractor"),
WITNESSETH:
WHEREAS, Company is engaged in the busine.,s of contracting with the owners
and/or landlords of' commercial properties and investors III commercial prope.rty for the
purposes of: (1) leasing space In or on such properties; and (2) selling, eKchanging,
purchasing or transferring such properties; and
WHEREAS, Contractor possesses the experience, eKpertise, and skills required by
Company; and
WHEREAS, Contractor desires to provide services to Company upon the terms and
subject to the conditions hereinafter described;
NOW, THEREFORE, in consideration of the premises, the payments, promises,
covenants and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Company and Contractor
hereby agree as follows:
1. Term of Al!reer~, This Agreement shall commence the date hereof, and
shall end one (1) year from the date hereof.
2. !:;9mpensation, For services rendered by Contractor hereunder, Contractor
shall receive Sixty Thousand Dollars ($60,000) ("Base Amount") payable in monthly
payments ("Monthly Payment") of Five Thousand Dollars ($5,000) on the first day of each
month, Additionally, Contractor shall be paid commissions (the "Commissions") in
accordance with the fee schedule attached hereto liS pxhibit A ("Fee Schedule") for property
leased or sold by Contractor and for development activities undertaken by Contractor to the
extent the commissions earned during the term of this Agreement exceed the Base Amount.
The Fee Schedule may be modified by Company from time to time in its sole discretion
without prior notice to Contractor,
All Commissions are deemed generated and earned when Company actually receives
payment from the entity with which it has the leasing arrangement, contract, or agreement,
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, Except as stated herein, Contractor shall not be entitled to payment of any expenses
inc\lrred In the perfonnance of his duties hereunder, Including, but not limited to real estate
licenses, dues and professionalllablIlty insurance, nor shall he be entitled to any benefits
provided to Company's employees except as otherwise expressly provided In 13xhiblt A,
Upon tennination of this Agreement for any reason, Contractor only shall be entitled
to any compensation ~arned but unpaid as of the date termination occurs,
Finally, and notwithstanding the tenns and provisions of ElIhilili...A, Company and
Contractor agree that Development Fee transactions for Rite-Aid will be shared as follows:
(I) for the first two transactions, 100% of the Development fee will be paid to Contractor and
(II) thereafter, the Development Fce will be shared 60% by Contractor and 40% by
Company.
3. Imnination of Al!ree!Mlli,
(a) Notwithstanding any other provision of this Agreement, this Agreement
may be terminated by the Company at any time for any or no reason upon thirty (30) days'
written notice of its intention to temlinate this Agreement.
(b) Upon tennination of this Agreement, Contractor shall turn over to
Company all keys and other property of Company and its affiliated entities (hereinafter
dermed) and any copies thereof, Thls includes, but is not limited to, customer mailing and
other customer lists, policy manuals or handbooks, advertising materials and brochures, and
documents and infonnation concerning: (a) clients and customers of Company; (b) client" .
contacts and key conlacts anci decision makers of any customer of Company; (c) pricing
strategies of Company; (d) marketing strategies or techniques of Company, and other
business or confidential infonnatlon of Company, its clients or prospective clients; (e) trade
secrets of Company obtained or developed In the course of Contractor's perfonnance of
services for the benefit of Company or of which Contractor became aware by reason of
Contractor's perfonnance of services for Company hereunder; and (f) any business or
confidential infonnation of any client or other person obtained by Company or Its agents,
All such property, lists, infonnation, and documents shall at all times remain the sole and
exclusive property of Company, which Contractor shall have no right to use (except in the
course of performing Contractor's duties for Company), retain, disclose, divulge to others,
Upon tennination of this Agreement, Contractor and Company shall enter Into a
tennination agreement specifically listing all work in process of Contractor and an agreement
as to Contractor's entitlement to compensation, if any, for transactions completed following
the teonination of this Agreement, Additionally, Contractor shall release Company from any
and allliabiIlty and claims for compensation eKcept with respect to compensation based upon
those specific transactional items agreed upon in the termination agreement. The
detennination of all outstanding matters as of the date this Agreement terminates Is solely
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dependent upon Contractor's full disclosure at the time thIs Agreement terminates,
Contractor shall be entitled to no compensation for transactions 1I0t disclosed in the
termination agreement,
Upon termination of this Agreement for any reason, whether by Contractor or
Company, Contractor wlll cooperate with Company to ensure that all clients of Company
may be retained by Company, including particularly cli~nts for whom Contractor ha~
rendered services hereunder for the benefit of Company,
4, Contractor's Duti~, Contractor is hereby engaged as a Representative.
Company shall from time to time enter into agreements for the acquisition and development
of real property, In his capacity as Representative, Contractor shall use his best efforts and
diligence to assist Company in the acquisition and development of real. property, primarily in
the Northeastern corridor of the United States,
Any information received by Contractor related to a prospective lessee, seller or
purchaser during the term of this Agreement shall be considered the property of Company
and only shall be used by Contractor for the benefit of Company.
Contractor shall not perform any work or other services for any other person or entity
which conflicts with the work required herein or which conflicts in any manner with the
interests of Company,
As an independent contractor, Contractor shall set his own working hours, Company
shall not have the right to, and shall not, control the manner or means by which Contractor
performs his duties hereunder.
5. Indeoendent C.Q!ll.Iactor S~, Contractor shall not be considered an i
employee of Company for federal, state, or local tax purposes, or for any other pu~se,
Neither party hereto shall be considered to be the agent, master, or servant of the other party
for any purpose whatsoever and neither has any authority to enter into any contract, assume
any obligations or make any warranties or representations on behalf of the other. Contractor
shall be solely responsible for the payment of all taxes to any taKing authority on
compensation paid to Contractor and shall nol hold Company liable in any manner for
payment of any such taKes,
6, Covenants of Contractor, Contractor acknowledges and understands that by
'/irtue of the performance of his duties for Company, Contractor will have substantial and
continuous contacts with clients and customers of Company and become acquainted and
intimately familiar with fmancial data, future plans, customers and clients of Company,
marketing strategies, product development, and other confidentlal information of Company.
Contractor further acknowledges that by reason of Contractor's performance of duties for
Company, Contractor will become acquainted and Intimately familiar with confidential and
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proprietary Infonnation of clients of Company disclosed to Contractor in confidence,
confidential and proprietary infonn"tlon of Company concerning Company's clients and
prospective clients, confidential information and trade secrets relating to the marketing of
Company's services to particular clients and prospective clients of such services, names and
Information concerning key contacts, personnel, and decision-makers of or who are
associated with Company's clients and customers, marketing, bidding, and pricing strategies
and techniques of Company, Company's client lists and lists of client contacts, trade secrets
developed by Company concerning its clients and prospective clients, Company's techniques,
materials, methods and programs (the "Infonnation"), all of which only will be disclosed to
Contractor in trust and confidence, and all of which lnfonnatlon Contractor shall keep and
hold in trust and confidence, Contractor recognizes that Company has a valid, protectable
right and interest in preserving its clients, business, customer contacts, and other Inronnation
described above and that each of the covenants and agreements of Contractor contained in
this Section 6, in Section 3, Section 7, and Section 14 of this Agreement, are material and
essential preconditions to Company's agreement to engage Contractor upon'tbe temlS set
forth in this Agreement. '
Accordingly. eKceptin the course of Contractor's perfonnance of services hereunder
for Company's benefit, for the tenn of this Agreement and for a period of six (6) months
after this Agreement tenninates for any reason, Contractor shall not, directly or indit'ectly.
for Contractor's own account or in conjunction with, or for the benefit of or on behalf of,
any person, finn, partnership, corporation, 01' other similar or dissimilar entity encourage or
in any way ind\lce any employee of Company or individual with whom Company has entered
into an independent contractor agreement or other arrangement for the perfonnance of
services for Company's benefit to sever his/her relationship with or commit any act inimical.
to Company, or
Contractor agrees that: (a) the covenants and agreement contained in this Section 6,
and those otherwise set forth in this Agreement, are reasonable and necessary to protect the
interests of Company as described above; (b) such covenants shall survive the termination of
this Agreement; (c) such covenants do not unreasonably impair Contractor's ability to earn a
livelihood; (d) Company will suffer irreparable hann and injury if any of such covenants are
breached; (e) Company will be without an adequate legal remedy in any such case; and (f) by
reason of the foregoing, Company may, in addition to pursuing any other remedy which may
be available to it, maintain a suit to enjoin Contractor from any such breach or threatened
breach,
Each covenant set forth either in this Section 6, or in any other section of this
Agreement, is separate, distinct, and divisible and If anyone or more of such covenants is
deemed invalid or unenforceable in any respect or extent, the valldity and enforceability of
the remaimng covenants shall not be impaired or affected thereby,
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To the extent that any covenant set forth In this Section 6, or In any other section of
this Agreement, shall be determined to be Invalid or unenforceable In any respect, such
covenant shall not be rendered void, but Instead shall automatically be amended for such
les~er tenn or to such lesser extent as may grant Company the maximum protection and
restriction on Contractor's activities permitted by applicable law in said circumstances,
7 . N21l::W~closure of InformatiQo, During and subsequent to the term of this
Agreement, Contractor shall keep and hold in trust and strictest confidence, all Information
revealed or disclosed to Contractor and all Information which Contractor learned of by
reason of the perf Ollila nee of services for Company and shall not, directly or indirectly, use,
communicate, disclose or divulge to others any of sucb Information except in the course of
performing Contractor's duties hereunder for Company's benefit,
8. Office Facilities, Contractor shall be solely responsible for t1je provision of
office facilities, office support staff and equipment,
9, ~rdkeeping Procedures, Contractor shall file on the fust day of each
month a written report of all pending development, brokerage and leasing activities
("Contractor Activities Report"), All fees and commissions or Monthly Advances, due, to be
paid to Contractor may be held by the Company until such time as the Contractor has
submitted to Company's satisfaction the required Agent Activity Report,
10, Amendment, Neither this Agreement nor any of the terms hereof may be amended,
waived, varied, modified, supplemented, or altered except in a writing signed by Contractor
and the President of Company,
11. Notice. Etery notice, request, dtmand and other communication contemplated by this
Agreement shall b~ In writing and deemed to have been made either when personally
delivered to the rQspective palty or deposited In the ordinary V,S, mall, postage prepaid, by
regular or certified mail, return receipt requested, to the address of the respective party
stated below or such changed address as such party may give by written notice to the other,
1'0 Company:
THF Realty, Inc,
955 Executive Parkway
Suite 210
Sl. Louis, Missouri 63141
To Contractor:
Steven W, Bott
215 Lake Ridge Drive
Kalamazoo, Michigan 49006
12, Waiver, Company's failure to exercise or delay in exercising, any right, remedy,
power or privilege hereunder, shall not operate as a waiver thereof, nor shall any single or
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ARTICLE Vl
l'OLlCY ON CO.BROKERAGIj;
1, THF wlll co-broker only with licensed real estate brokers, The company will not
co-broker with employees of business entitles (e,g" corporations, partnership, limited liability
company, etc,) whose job is to negotiate real estate for their employers, even If that person has
a valid real estate license, If you all: ever in doubt as to whether it Is proptr to promise to pay
a co-brokerage commission, check with the President of THF first, Paying or offering a salaried
employee of a business entity with whom we are doing business, whether or not that individual
Is a licensed real estate broker, will result In termination of THF's relationsWp with the
Independent contractor.
2, On in-house properties that we have agreed to co-broker, the commission to be
spilt between THF and the co.broker will be according to our schedule ,and not the co..broker's
schedule. Any deviations from our schedule requires the approval oflbe Pr~sident of THF,
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3, Authorization of Co-op: A broker desiring to cooperate on a THF listing must
first obtain permission from THF before any submissions of property are made, In obtaining
the authorization to cooperate, it is the responsibility of the cooperating broker to obtain the
authorized details on the propert'1 and to verify the commission amount and method of
commission division between the cooperating broker and THIl,
THF, at its sole discretion, will detemllne the acceptability of any prospect submitted for
registration, THF will not cooperate when It Is not in the best Interest of the Sellers (property
owners) to cooperate,
A written confirmation of prospect protection, commISSion amount, division and
recognition should be m~de by the cooperating broker following the inspection of a particular
property .
4. Recognition of a Cooperative Broker: In order for a real estate firm to be
recognized as a cooperating broker for a prospect, the cooperating broker must accompany the
prospect with a THF representative tluough an authorized inside inspection of any improved
property or on an on-site inspection of unimproved property, THF wlll recognize as the
cooperating broker the first broker who accompanies a prospect in this manner.
THF will continue to recogn~e the cooperating broker for a prospect wWch has been
shown property in the manner above, so long as the cooperating broker follows up after the
original inspection with a series of events wWch have continuity and result directly In the
consummation of a deal on that property to tllat specific prospect. II shall be the responsibility
of the cooperating broker to keep THF advised of the continuing negotiation, and a lapse in
continuity of negotiations in excess of thirty (30) days may be deemed to be abandonment of the
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prospect by the cooperating broker, in which case, TIIF shall have the right to terminate the
.protected status" of that prospect with the cooperating broker,
The mere submission of introduction of a property by voice or mail shall not constitute
reason for valid claim to a portion of tlte commission by a cooperating broker, Further, no
cooperating broker Is authorized to submit the property to another broker without first obtaining
THP's permission,
5, Division of Commission: As a general polley, TIIF will divide a commlsslon on
a 50/50 basis with II cooperating broker when that division is verified initially and when the
cooperating broker has been fully involved in the transaction, The portion of the commission
payable to TIIF will be further split 50150 between THP and any Inside salesman who has been
responsible for the listing, TIIF also works on a referral basis with cooperating brokers in such
cases where the cooperating broker wants only to refer a prospect or property to THP with no
further involvement, Again, commission division ahould be verified at the initial contact with
THP,
Lease commissions wlll be paid in full at the time the tenant takes possession of the
leased premises and has paid two (2) months rent, except that THF's share of the commission
payable on a ground lease will be paid in equal monthly installments over the first year of the
groun<llease, Sale commissions wlll be paid in full upon closing of the sale,
ARTICLE VI
f.OUCy ON THE INVOLVEMENT OF
~IDENT IN TMNSACTIO.lm
If Michael H, Staenberg t.akes an active role in, or materially assists a sales person,
broker or agent in, the negotiation or closing of a particular transaction, the President shall
be entitled to a fair and equitable portion of the commission paid to the sales person, broker
or agent involved in the transaction, taking into consideration the type of transaction
involved, the amount of time expended by the President and the nature of the activities
performed by the President
ARTICLE VII
POl.ICY ON THE EOUlTY INTEREST IN TIIF PROJE~TS
In the event a TIIP independent contractor is involved in an in-house transaction,
TIIP may, in its sole and absolute discretion, offer the outside agent an equity interest in the
particular Project. THF shall detennine the amount and nature of any equity interest THP
chooses to offer to an outside agent. THF shall not be obligated under any circumstances to
offer an outside agent such an equity interest, and the sole inducement to the outside agent to
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Local Rule 28, SPECIAL PROCESS SERVErS
(1) The Circuit Clerk may appoint a natural person other than the Sheriff to serve process
in any cause.
(2) Orders appointing a person other than the Sheriff to serve process shall be made at the
risk of the requesting party,
(3) Any person of lawful age, other than the Sheriff, appointed to serve process shall be a
natural person and not a corporation or other business association.
(4) No per30n, other than the Sheriff, shall be appointed to serve any order, writ, or other
process which requires any levy, seizure, sequestration, garnishment, or other taking by an officer,
(5) Requests for appointment of a person other than the Sheriff to serve process shall be
made on a "Request for Appointment of Process Server" form which may be obtained from the
Office of the Circuit Clerk,
(6) This appointment as Special Process Server does not include the authorization to carry
a concealed weapon in the performance thereof,
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NOTICE TO SH'~RIFF . DOCUMENTS TO,BE. (..,1!~VED WITH PETITION
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o Certificate of Dlssolullon of Marriage I]" Fe FIling Certificate
o Financial Statements [J Motion/Affidavit for PDL
[I Notice [] Ordor of Appointment of Next Friend
[I Temporary Reslmlnlng Order [I Request for Produclion
o Interrogatories [J Limited Entry of Appearance
[J Other (Specify) '.."n___ rX Notice of .pareRt EctHeaHoA Cless/Medlatlon
f\Servlces
RETURN OF SERVICE OF SUMMONS
I hereby certify that I have served the within summons:
(1) By delivering on IheZ,tt__ day of u~~,19~9~a copy of the summons,
petition, and any. dqcurni.)Jlt~ checked above to 1~lthln-named defendanVrespondent ,
. ."" . _ >, , ',....~"'of<,...,..' ,
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(2) By leaving on the..,. "..n___' day of ,___n__,._,._,.__"._.19.._.._.lor the within.named
delendant/ respondent .u~..., ,.__,..___.....__.... "..,...________.._____~.,.._._.,,"_.___.___
a copy of the summons, pelltlon, and any documents checked above at the dwelling place or
usual place of allodo of said defendaniJrespondent with some person of his or her family over
the age of 15 years;
(3) By...,.. .,. .", ". ..,_.., '" ___._.__ ___._.. ____."..._._____._._._______...___.__..____...,__..________
All done in. _.. .
,. County, MissourI.
Sheriff's feos:
Summons ....__, .., __. .._...,.__.___..
Non est ___,_.. ........._
Mileage ____" ......". ,~._____.___
Total__,___.._____.c__. .__.__.___
Sheriff of
County, Missouri
By: _._
Depuly Sherilf
'CERTIFICATE OF MAILING
I certify that onlho __.._._____._day 01_. ~,19
I mailed a copy of tile summons, petition and any documents checked above to
defendanVrespondent by (registered) (certified) mail, requesting a return receipt slQned by the
addressee only, lo the defendant/respondent at the address furniShed by
plalnlill( s )/ps tltlon,~ r( s),
GENE OVERALL, Circuit Clerk
Date: _.~,__......_
By: .
Deputy Clerk
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IMPORTANT NOTICE TO NON-MISSOURI SHERIFF
A special return with instructions is attached for your use,
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Thomas W, Sloan
Process Server
10207 Crloklewood
Portage, ...1 49024
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POllmaoter
ClIV. "It.. ZIP Coda
Dale ~- / Z -9/'~
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R.quut 'or Chllng. 0' Addr." or E1oxhold.r
IMonnltlon Nud.d 'or Slrvlce 0' Llga' Procu.
Pi.... ,u~t.::~; ~~I~S or ~: naE' ,~d;Slrj"'l ad~ress (i' a boxholder) 'or the following:
Nam" ~~FJ\I VV".~ .,". .
Addr...: '2., 5' CA/0? R.(:or.x." (J f- ,~ 4 '1 CD (0
NOTE: Th. n.iiie IInd last known addre.. arl required for chlnge 01 address In'ormlllon, 'The name. If known, and
POlt ,OffiCI box addre.. arl required 'or boxholder Informallon, . ' ,
The IlIlIowlng Information Is provided In accordance with 39 CFR 285,8(d)(8)(IQ, There Is no fee for providing
boxhohJe'I'llorm3t1on, ,'j1,lee lor plc:.,'h:.ilnli/chlllge of add'd. tnlormatlor, Is walvlid In IltcllltianCll wilh 39 CFR
ZeU(d)(1) and (2) and corresponding AdminIstrative Support Manual 352.44a and b,
,2, Statute or regulRtlon that empowers me to 5erve process (not required when r~qu'DSler Is an allomey or a party
IICllllg pro $f. excep a corporallon acting pro Sf! must clle
Italule):
3, ThenllnleS~~nown'partlestothel1tlcaU~ ~~h 1...-1, ~_
4. The court In which the case has been or will be heard:~ $$DUVj
5, The docket or other Identllylng number If one has been Issued: ' g &:c..-L:X..X:> '2~1
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e, Thll CII~.MXhIC>>JhiS)f1qlvlduall' \0 be served (e,g, delendanl :.or
wllness):__ V.....~:-f..,' .
WARNING ,
'1'\1111JI"".S10nOF FALSE 1~IFom,I"TIOII TO oaTAHI AIID US! C'WIOE OF ADOFlESS 1~IFOnMATlC'1 OFl aOXliOLOEIl INFORMATION .ti.........
'0" AII'( F'U"rOSE OTH!n TH'N THE SEFlVICE OF LEGAL PROCUS 1'1 comIECTIO~' WITH ACTUAL OR PROSPECTIVE LlrlGATlON '
C-:'JLO "ESULT It! CI1IMII'AL PEN^LlIES IIICLUOI~la A FINE OF UP TO $1 0,000 OR IMPRISONMEIIT c.:'R i:ti 1\) ^VOIO PAY~IWT OF
"t!1 FIE ,on C~IAlIGE OF AOOFlESS I/IFOFlMATIO,1 OF NOT MORE THMI 5 YEARS, OR 80TH (TITLE 18 U,S,C, SECTION 1001)" ,
I C/lI.UfY l"/lllhe al1o.ve InfollnRlion is Irue and Ihallhe IIdrfress Information Is neaded and will be used SOlel~or ~!I.:.
~'lvle.,OI legal process In connection wllh aclual or prospecliva lIt1gRtlon, t NMyJ '.
(~~ ~4- t()21f7Cl1c.t,J~wcOp 0 vJ, IlflM IiMWb "
n tm ~laf1:z'1. Address..y~a;:::;MI', A'lCOZ- l U'O \,\-\'J t
..:.,Inlld I~a,"e City, S~ _ i
FOR POST OFFICE USE ONLY 1\
_ No change or address order, on file, NEW ADDRESS I'
BOXHOLOER'S POSTMARK
_1401 known at address given, NAME and STREE:T AODRESS Z / 8 8 k71\ 1/ i
_ . Move", lell no forwarding address, _ - r ( v I I
_"osuchatJdrlSS 951 &/~ksh"re :j),e 2~ /9 & :tlofhjl;'J
k>. I~M;:Z 'Z 00 )y, I L/ ctpoCo Z.. Z ~; '5Z>. .,
Jill ._"
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THP REALTY, INC"
',"CEIIJEDANO Fll.EO
I' 'CIRCUI1 COURT O~
~ r tOll15 COU"l r ,
IN THE CIRCUIT COURT OF THE COUNTY OF st. 'Wms 8
STATE OF MISSOURI nt) ~~Y21 PI1 410
GENt: O'/LRALL
CIRCUlI CLERK
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Cause No, 98-CC-000254'- .
Plaintiff,
v,
STEVF. W, BOTT,
Division No, 2
Defendant,
MEMORANDUM TO THE COURT
REGARDING CHANGE OF HEARING DATE
On May I, 1998, the Court entered an Interlocutory Order of Default and set an
evJdent;~ry hearing on the Issue of plaintiff's damages for June 5, 1998, At plaintiff's request,
the Court has rescheduled the hearing to July 24, 1998 at 10;30 a,m. in Division No, 2,
Respectfully submitted,
THOMPSON COBURN
By (~
~A
Suzanne au, #45321
One Mercantile Center
St. Loufs, Missouri 63101
314-552.6000
FAX 314.552.7000
Attorneys for Plaintiff THF Realty, Jnc,
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THF REALTY INC..
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY. PA
Plaintiff
v.
: Case No.
STEVEN W. BOTT.
Defendant
SUBPQENA 1'0 PRODUCE DOCUMENTS QR THINGS
EQR DISCO-YERY PUHSUANT TO RULE 4009,22
To: Rite Aid Corporation
30 Hunter Lane
Statler Office Towel'
Camp Hill, PA 17011
On or about June 29, 1998, you are required by the Court to produce the
following documents or things:
1. Any and aU documents from May 1, 1996 to the pl'esent (inclUding
computer files and electronic mail) which refer 01' relate to Stephen W, Bott's
relationship with Rite Aid, including hut not limited to, all documents
relating to Mr, Bott's involvement in Rite Aid's acquisition, development
and/ol' leasing of real property and MI', Bott's compensation related thereto,
EXHIBIT
6
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TIIF REALTY INC.,
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
v.
Case No.
STEVEN W. BOTT.
Defendant
CERTIFICATE
Prereauisite to Service 2fJLSubooenft Pursuant to Rule 400,.W,
As a preruquisito to sel'viee of a subpoena for doeuments and things plU'suant
to Rule 4009.22, THF Roalty, Inc" plaintiff, cOl'tifies that:
(1) A Notice of Intent to Serve the Subpoena with Ii copy of the Subpoena
attached thereto was mailed to the Defendant at least twenty (20) days prior
to the date on which the Subpoena is sought to be served,
(2) A copy of the Notice of Intent, ineluding the pl'oposed Subpoena, is
attached to the Cel'tificate,
(a) No objection to the Subpoena has been received, and
(4) The Subpoena whieh will be sel'ved is identieal to the Subpoena which
is attached to the Notice of Intent to Serve Ii Subpoena,
By:
Richard E, Connell, Esq,
I.D, 21542
2303 Market Stl'eet
Camp Hill, PA 17011
(717) 232-8731
Dflte: June ,1998
Attorneys for Plaintiff THF Realty, Inc.
r,XHIRIT
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'6""26'" 1998 1.65PM
FROM BALLSKELLYMURRENCONN 717 232 2142
P,5
COMMONWEALTH OF PENNSYLVANIA
COUNTY Of' CUMBERLAND
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TO:
. SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANTTO RULE 4009.22
1U.te Aid Corporation
30 Hunter Lane, Statl$r Office T~r, l'-'lIT4? Hill, PA 17011
(Name 01 Person or Entily)
0" c.' ,cb"vr .r~"f.."U JINt}
,
Will,;" lwtlllly (.!O) dayS alter service' vI ll.b. "l.IbPUtll18, you are ordered by the court to produce the following
documents or thlngs:1) KlY. ~d all doc:urmnts !ran May 1 1996 to ~ TJreSent (incl1,ld;1.nil. COlIt>l,lter
files and electrr.mc IIl!i.il) Wl'I1ch refer or relate to SEephen~, Bote s rHatlonsHip loT.l.th ~tt! Aid,
including hl1t ~",. H~t"<l to". aJ~.IP1'lti"'g to M,.. 'Rr."~$ it}u,h1"'"">nt i., Ril-Ill! A,ri', llL.'quiE
1t;icn, developnent and/or leasing of real property and Mr, Bott's coopensar.icn related theI'eto,
2)/lny ana aJ.J. ClOCUlrem:s traIl MaY J., 1990 1:0 t:h~ present: ,including CUUpticst .t'1!es and
electrCl'lic mail) which refer or relate to Rite Aid's business dealings with Steven W, Bott, inc1udi
i l;ut not 11mited to busjness ooaUngs involVlng property in the state ot Mlch1ngan. .
at....the offices q,f Ball. Skelly. Murren & Calnall 2~Q3 Marlcet St~t.. CBIID Hill. PA
(Address)
You may deliver or mail legible caples of the documents or produce things requested by this subpoena, together
with the certificate 01 complianoe, to the party making this request9t the address listed above, You have the right
to seek In advance the reaSonable cost ot preparing the copies or producing the things sOl.lght, .I.
tJ'1 d.... <{...a. .t;:.t~.
If you fall to produce the documents or things requirec: by this sl.Ibpoena '::lllqil'll'''fiAtj' (2Q) says afl", it$ ~e, v;..e,
the party serving Ihls subpoena may seek a Court oreler compelling you to Comply with it,
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name Richard E. Conl1,ell, Esq.
Address: 2303 Market Street, Camp HilL..J'A l'7011
Mai1iqg Address: P, 0, Box 1108, Harrisbure. PA 17108
Telephone:-iJ17) 232=8731
Supreme Court 10 It 21542
Attorney For: -B.!I1ntif~
Date:
--J.w"\J q4l1 i ~._
Seal of the Court
BY THE COURT: . ') V
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--?r'~h~n~ia~y7c1~rk, ~'IVii~Slon -
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EXHIBIT
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