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HomeMy WebLinkAbout12-1111/a-//// , CivilTerm STATE OF TENNES F,L C ` F 1 COUNTY OF KNOXy-1 H? PROTjj")NUTA" 2012 FEB 21 PM 3: 0 + I, HOWARD G. HOGAN, Cle ter of the Chancery Court of Knox County, Tennessee, do hereby ce printing and typewriting is a true, full, correct, and complete copy of the FII ACT AND CONCLUSIONS OF LAW on file and remaining of record in my office in the cause of Raymond A. Brown and Judith M. Snyder vs Allazzar J. Cato and Kenneth E. Brown, Docket Number 179156-1, Book 1192, Pa 785. In testimony whereof, I have hereunto set my hand and seal of office this lay of 12011. Clerk and Master STATE OF TENNESSEE COUNTY OF KNOX I, John F. Weaver, Chancellor of the Chancery Court, Part I, of Knox County, Tennessee the same being a court record within and for said State and County, do hereby certify that HOWARD G. HOGAN is Clerk and Master of said Court and was such Clerk and Master at the time of making and subscribing to the foregoing certificate attached to certified copy of the Order and that the attestation of said Clerk is in due form of law and by the proper offices. In testimony whereof, I do hereby subscribe my name at Knoxville, Tennessee, this ?^-day ofc? ..., 1, 2011. C ancell , Part I -?? STATE OF TENNESSEE COUNTY OF KNOX I, HOWARD G. HOGAN, Clerk and Master of the Chancery Court of Knox County, Tennessee, do hereby certify that John F. Weaver, whose name is subscribed to the foregoing certificate, was, at the time of subscribing same, Chancellor of the Chancery Court, Part I, within and for said County, duly commissioned and qualified and that full faith and credit are due to all his official acts as such. In testimony, whereof, I have hereunto set my hand and seal of office this ./9-9*-ay of 12011 C Clerk and Master J33•50 PQ P "Dw 193q-,,,srgf 501 HL ED IN RAYMOND A. BROWN and JUDITH M. SNYDER, individually And in the right of One Tree Grille Of Knoxville, LLC, Plaintiffs, V. ALLAZZAR J. CATO and KENNETH E. BROWN, Defendants. 0 2011 2611 JELL 2 9 PH 19 iOWARD Q HOCAW ° ",, ? V 2? xG No 179156-1 Cn N '- C:) r'3 . r vc= w A FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. Plaintiffs Raymond Brown ("R. Brown") and Judith M. Snyder ("Snyder") (collectively, "Plaintiffs") filed this lawsuit on November 17, 2010. On the same date, Defendants Allazzar J. Cato ("Cato") and Kenneth E. Brown ("K. Brown") (collectively, "Defendants") were personally served with copies of the Summons and Complaint. 2. On November 18, 2010, Plaintiffs filed their amended complaint. On the same date, Defendants were served with copies of the Amended Complaint by hand delivery and by U.S. mail. 3. Defendants have failed to plead or otherwise defend themselves against the claims stated in the Amended Complaint and are in default. 4. On February 23, 2011, Plaintiffs filed their Motion for Default Judgment (the "Motion") 5. The Court heard the Motion upon notice on March 25, 2011. The Court granted the Motion and directed Plaintiffs' counsel to submit proposed findings of fact and conclusions of law to support Plaintiffs' claim of compensatory and punitive damages. 6. The record evidence includes the Affidavit of Raymond A. Brown of February 12, 2011, the Affidavit of Raymond A. Brown of May 24, 2011, the Affidavit of Judith M. Snyder of February 12, 2011, the Affidavit of Judith M. Snyder of May 24, 2011, and the original verified Complaint. 7. Based on the record evidence, with regard to Count II of the Amended Complaint, the Court finds as follows. a. R. Brown, Snyder, Cato, K. Brown, and nonparty Christopher Zielonis formed One Tree Grille of Knoxville, LLC ("One Tree Grille") for the purpose of opening and operating a restaurant known by the same name. K. Brown is the son of Snyder and the brother of R. Brown. Defendants managed the LLC and had control over its finances. Defendants also had control over the restaurant and its finances. b. One Tree Grille owned deposit accounts at Regions Bank and ORNL Credit Union (the "Deposit Accounts"). Defendants had sole control over the Deposit Accounts. The statements for the Deposit Accounts, which are in the Court record, show that Defendants used One Tree Grille funds for payments of personal expenses, payments to themselves, and transfers to personal deposit accounts in amounts totaling $108,954.50. The personal expenses included payments for such things as gasoline, housing expenses, moving expenses, eating out, hotels, and numerous ATM withdrawals. c. R. Brown obtained a credit card to use for One Tree Grille expenses, and he was personally responsible for payment of all charges on the card. Cato had use of the credit card and charged $4,043.26 in personal expenses to it. Those personal expenses included such things as gasoline, housing expenses, moving expenses, eating out, hotels, music, and clothing. 2 d. In August, 2010, R. Brown contributed $130,000 towards the operation of One Tree Grille. e. Defendants have denied Plaintiffs access to the records of One Tree Grille, and Defendants have refused to provide Plaintiffs an accounting of the expenditures of One Tree Grille. f. One Tree Grille closed its restaurant in November 2011. It closed a few months after it opened with debts to outside vendors of approximately $106,000 and debt to Ray Brown of $280,000. g. The facts show that Defendants' use of One Tree Grille's resources for their personal expenses, instead of for business expenses, was not a one-time occurrence. Rather it was on-going. The facts literally are that Defendants used the company's Deposit Accounts as their personal ATM. By converting the company's assets to their personal use, the Defendants left the company without money to operate or pay its obligations. Based on these facts, the Court finds that Defendants' conduct was not just reckless, but also was willful, intentional, and fraudulent. 8. Based on the record evidence, with regard to Count II of the Amended Complaint, the Court concludes as follows: a. Defendants have appropriated $112,997.76 of One Tree Grille's funds to their own use and benefit, by exercise of dominion and control over those funds, in defiance of One Tree Grille's right. b. Pursuant to Tenn. Code Ann. § 48-249-801, R. Brown and Snyder, in the right of One Tree Grille, are entitled to recover the funds converted by Cato and K. Brown in the amount of $112,997.76. 3 c. Defendants' conversion was intentional, fraudulent, malicious, and reckless, entitling R. Brown and Snyder, in the right of One Tree Grille, to an award of punitive damages. d. Pursuant to Tenn. Code Ann. § 48-249-804(b), R. Brown and Snyder, in the right of One Tree Grille, are entitled to recover their expenses, including attorney fees, incurred in prosecuting this action. 9. Based on the record evidence, with regard to Count III of the Amended Complaint, the Court finds as follows. a. On March 15, 2010, R. Brown loaned K. Brown $5000. b. The $5000 loan is memorialized by check endorsed by K. Brown. c. K. Brown was to repay the $5000 loan at a rate of $224 per month plus interest, beginning immediately. d. R. Brown has demanded payment. e, K. Brown has made no payments on the $5000 loan. 10. Based on the record evidence, with regard to Count III of the Amended Complaint, the Court concludes as follows: a. K. Brown has appropriated the $5000 to his own use and benefit, by exercise of dominion and control over it, in defiance of R. Brown's rights. b. Thus, K. Brown has converted $5000 from R. Brown. 11. Based on the record evidence, with regard to Count IV of the Amended Complaint, the Court finds as follows. a. Snyder loaned K. Brown $43,075. 4 b. Snyder's loans to K. Brown were interest free and due on demand or upon Snyder's seventieth birthday, whichever occurred first. c. Snyder demanded payment in September 2010, but K. Brown has not repaid the loans. 12. Based on the record evidence, with regard to Count IV of the Amended Complaint, the Court concludes as follows: a. K. Brown has breached his agreement with Snyder by failing to repay his debt upon demand. b. Snyder has been damaged in the amount of $43,075 by K. Brown's breach. c. Further, K. Brown's appropriation of the $43,075 to his own use and benefit, by exercise of dominion and control over it, in defiance of Snyder's rights constitutes conversion. d. Snyder has been damaged in the amount of $43,075 by K. Brown's conversion. 13. For the foregoing reasons, the Court ORDERS as follows: a. R. Brown is awarded damages from K. Brown in the amount of $5000. b. Snyder is awarded damages from K. Brown in the amount of $43,075. c. Pursuant to Tenn. Code Ann. § 48-249-801, R. Brown and Snyder, in the right of One Tree Grille, are jointly awarded damages for conversion from Cato and K. Brown in the amount of $112,997.76. d. R. Brown and Snyder, in the right of One Tree Grille, are jointly awarded punitive damages from Cato and K. Brown in the amount of $112,997.76. 5 e. Pursuant to Tenn. Code Ann. § 48-249-801, R. Brown and Snyder are jointly awarded their reasonable expenses, including attorney fees, in the amount of $17,539.89, to be paid out of the $225,995.52 awarded to them in the right of One Tree Grille. f. Pursuant to Tenn. Code Ann. § 48-249-805, the Court grants as equitable relief to R. Brown and Snyder, individually, the amounts they recover in the right of One Tree Grille, after their reasonable expenses are paid and after any amounts still owing by One Tree Grille are paid. g. The first $48,075 collected on this judgment shall go to pay the damages awarded in the Parts (a) and (b) of this Paragraph 13. h. Court costs are taxed to K. Brown and Cato, for which execution may be had. P- ENTERED this tJ day of August, 2011. ancellor John . Weaver PREPAREI-'OR ENTRY BY: John T. Winemiller (021084) MERCHANT & GOULD, P:C. 110 Tyson Blvd., Ste 203 Alcoa, Tennessee 37701 865.380.5960 Counsel for Raymond A. Brown and Judith M. Snyder 6 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served this 29th day of July 2011, upon the following by leaving a copy with the Clerk of the Court and by placing a copy in the United States Mail, first-class postage pre-paid: Allazaar J. Cato, pro se Kenneth E. Brown, pro se 100 Horseshoe Loop, Mountville, PA 19554 Allazaar J. Cato, pro se Kenneth E. Brown, pro se 106 Lancaster Blvd., Mechanicsburg, PA 17050 Allazaar J. Cato, pro se Kenneth E. Brown, pro se 1199 Cross Creek Road Mechanicsburg, PA 17050 Allazaar J. Cato, pro se Kenneth E. Brown, pro se 3001 U.S. Hwy., #130 South Delran, NJ 08075 Allazaar J. Cato, pro se Kenneth E. Brown, prose 808 West Mount Drive, Apt. 5 West Hollywood, CA 90069-4671 Y` 7 IN THE CHANCERY COURT FOR KNOX COUNTY, TENNESSEE RAYMOND A. BROWN and JUDITH M. SNYDER, individually And in the right of One Tree Grille Of Knoxville, LLC, Plaintiffs, V. ALLAZZAR J. CATO and KENNETH E. BROWN, Defendants. No. 179156-1 AFFIDAVIT OF JOHN T. WINEMILLER C--) o s ;. =rn z= r n CD -<> N ?c r-X - ' zCD a a ern --? © ' rv I, John T. Winemiller, declare under penalty of perjury that the following facts are true and correct to the best of my information and belief: 1. My name is John T. Winemiller. I am above the age of 18 and am competent to testify. I am an attorney with the law firm of Merchant & Gould, P.C., and am counsel of record for Plaintiffs Raymond A. Brown and Judith M. Snyder, individually and in. the right of One Tree Grille of Knoxville, LLC, in this action. I have personal knowledge of the matters in this affidavit. 2. To the best of my knowledge, I affirm that the Findings of Fact and Conclusions of Law entered in this matter on August 5, 2011, is valid, enforceable and unsatisfied. 3. The address of Plaintiffs Raymond A. Brown and Judith Snyder is 4553 New Holland, Mohnton, PA 19540. 4. The last known addresses of the Defendants Kenneth Brown and Allazzar Cato are: 100 Horseshoe Loop, Mountville, PA 19554; 106 Lancaster Blvd., Mechanicsburg, PA 17050; 1199 Cross Creek Road, Mechanicsburg, PA 17050; 3001 U.S. Hwy., #130 South, Delran, NJ 08075; and 808 West Mount Drive, Apt. 5, West Hollywood, CA 90069-4671. Further this affiant saith not. John T. Winemiller Sworn and subscribed before me this .(? day f , 2012. Notary ublic My Commission expires: (/• Zq'• /S t „ sfi,, =sir C. (r a ??1d1,#ff.gt;t,11. 2 t IN THE CHANCERY COURT FOR KNOX COUNTY TENNESSEE RAYMOND A. BROWN and JUDITH M. SNYDER, individually And in the right of One Tree Grille Of Knoxville, LLC, Plaintiffs, V. ALLAZZAR J. CATO and KENNETH E. BROWN, Defendants. No. 179156-1 AFFIDAVIT OF KIM GRIFFIN-MILLSAPS c ? ?1 w r .T =C =rn rn co r -V M m _ CD-n CDC% K N -r" I, Kim Griffin-Millsaps, declare under penalty of perjury that the following facts are true and correct to the best of my information and belief: 1. My name is Kim Griffin-Millsaps. I am above the age of 18 and am competent to testify. I am a paralegal with the law firm of Merchant & Gould, P.C., and our firm is counsel of record for Plaintiffs Raymond A. Brown and Judith M. Snyder, individually and in the right of One Tree Grille of Knoxville, LLC, in this action. I have personal knowledge of the matters in this affidavit. 2. On January 27, 2012, I spoke with the Knox County Chancery Court Clerk's office requesting a certified copy of the Court's docket entry of the Findings of Fact and Conclusions of Law that was entered on August 5, 2011. I was told that the Knox Chancery Court does not offer docket entries as a certified document. 3. I was told by a clerk that the Knox County Chancery Court could provide a certified a copy of a document, but not of a docket entry. Thus, I obtained a certified copy of the Findings of Fact and Conclusions of Law entered by Chancellor Weaver in this case. r Further this affiant saith not. Sworn and subscribed before me this day of VP , 2012. otary PMy Commission expires: Kim Griffin-Millsaps \\\\?IIIIIIff1///// STATE % OF TENNESSEE: _ NOTARY PUBLIC