State of Ohio on Relation of 08-1655...see also Affidavit of Wanda Barker/ AKA Wanda Harris at 1I 4,...

IN THE SUPREME COURT OF OHIO

State of Ohio on Relation ofClarence "Gene" Harris,6479 County Road 20West Mansfield, Ohio 43358

08-1655

Relator, . Original Action Seeking Writ of Prohibition

V.

The Honorable Mark S. O'Connor,Logan County Conunon Pleas CourtCourthouse-Room 18101 South Main StreetBellefontaine, Ohio 43311

Respondent.

COMPLAINT SEEKING WRIT OF PROHIBITION

Michael F. Copley (0033796) (Counsel of Record)Mark E. Landers (0026042)Kenley S. Maddux (0082786)The Copley Law Firm, LLC1015 Cole RoadGalloway, Ohio 43119Telephone: (614) 853-3790Facsimile: (614) 467-2000E-mail: [email protected]

COUNSEL FOR RELATOR, CLARENCE "GENE" HARRIS

The Honorable Judge Mark S. O'ConnorLogan County Common Pleas Court101 South Main StreetBellefontaine, Ohio 43311Telephone: (937) 599-7260Facsimile: (937) 292-4175

u u i^^ .lI ^ l1U

l^f)f^ i ^^ 7;^^1^

CLERK oF COURTRESPONDENT SUPREM COUFtfi 0F OHIO

COMPLAINT PETITIONING FOR WRIT OF PROHIBITION

Relator Clarence "Gene" Harris ("Relator") seeks a writ of prohibition against Respondent The

Honorable Mark S. O'Connor ("Respondent") and states as follows:

JURISDICTION

1. This original action is brought pursuant to Rule X of the Rules of Practice of the Supreme

Court of Ohio and Article IV, Section 2 of the Obio Constitution.

2. No prohibition action is pending in any other court regarding the actions that are the

subject of this Complaint.

3. Relator is a citizen of Logan County, Ohio and is a party to an action currently pending

in the Logan County Court of Common Pleas (Affidavit of Clarence "Gene" Harris,

hereinafter referred to as Harris Aff. The Affidavit is attached hereto and labeled Exhibit

A.)

4. Respondent is a judge in the Common Pleas Court of Logan County, Ohio.

STATEMENT OF FACTS GIVING RISE TO COMPLAINT

5. All previous paragraphs of this Complaint are incorporated herein by reference as if fully

stated.

6. In July 2007, Relator and his former wife, Wanda Barker, each owned fifty percent of Hi-

Point Crane Service, Inc.

7. Thomas & Marker Construction Co. (hereinafter referred to as "Thomas & Marker") filed

a complaint against Relator, Ms. Barker, and Hi-Point in the Logan County Court of

Conunon Pleas on July 26, 2007 (hereinafter referred to as the first Logan County

Action). (Harris Affi at ¶ 4, a true and accurate copy of the original complaint is

attached hereto and labeled Exhibit B; however, irrelevant exhibits have been omitted;

I

see also Affidavit of Wanda Barker/ AKA Wanda Harris at 1I 4, hereinafter referred to as

Barker Aff. A copy of Ms. Barker's Affidavit is attached hereto and labeled Exhibit C.)

8. The first Logan County Action was given case number CV 07 07 0350 (Id.)

9. Respondent presided over the original Logan County action. (Harris Aff. at 115; Exhibit

B.)

10. On November 28, 2007, Thomas & Marker dismissed all claims against Relator in the

original Logan County action with prejudice. (The notice of dismissal is hereinafter

referred to as the "Dismissal With Prejudice"). (Harris Aff at ¶ 9; Barker Aff at ¶ 6; a

copy of the Dismissal With Prejudice is attached hereto and labeled Exhibit D.)

11. On November 28, 2007, Thomas & Marker sent a settlement agreement to Ms. Barker's

attorney. (Barker Aff. at 117.)

12. On November 30, 2007, Ms. Barker signed the settlement agreement. (Barker Aff. at ¶

8.)

13. Ms. Barker signed the settlement agreement with the knowledge that Relator had been

dismissed with prejudice and the belief that Relator could not be sued again based on the

same transactions. (Barker Aff. at 1I 9.)

14. On December 3, 2007, Thomas & Marker filed a motion to strike inadvertent filing

(hereinafter referred to as the Motion to Strike) stating that it had "inadvertently signed

and caused to be filed a Notice of Dismissal of Defendant Gene with prejudice." (Barker

Aff. at ¶ 10; a copy of the Motion to Strike is attached hereto and labeled Exhibit E.) The

Motion to Strike further stated that the Dismissal With Prejudice was mistakenly filed by

Thomas & Marker's legal counsel. (Id.)

2

15. The Motion to Strike and the affidavit of Thomas & Marker's counsel attached thereto

inaccurately stated that "Defendant Gene was not represented by counsel at the time the

erroneously filed Notice of Dismissal as he had previously discharged his counsel."

(Exhibit E.)

16. In fact, Mr. Harris's counsel withdrew on October 25, 2007. (Harris Aff. at ¶ 7.)

17. On December 4, 2007, despite lacking subject matter jurisdiction over the case and

without providing any opportunity for Mr. Harris to be heard, Respondent signed a

judgment entry striking the dismissal with prejudice and declaring it void ab initio. (A

copy of the Judgment Entry is attached hereto and labeled Exhibit F.)

18. On December 5, 2007, Thomas & Marker filed a second notice of dismissal (hereinafter

referred to as the Dismissal Without Prejudice) which purported to dismiss Relator

without prejudice under Rule 41(A)(1)(a) of the Ohio Rules of Civil Procedure. (Barker

Af£ at ¶ 11; a copy of the dismissal without prejudice is attached hereto and labeled

Exhibit G.)

19. On May 5, 2008, Thomas & Marker filed a second complaint against Relator asserting

causes of action arising out of the same facts as the original Logan County Action.

(Harris Aff. at ¶ 12; a copy of the second complaint is attached hereto and labeled

Exhibit H.)

20. The second complaint was given case number CV 08 05 0255 (hereinafter referred to as

the Second Logan County Action). (Harris Af£ at 11 10; Exhibit H.)

COUNT ONE: PROHIBITION

21. All preceding paragraphs of this Complaint are incorporated herein by reference as if

fully restated.

3

22. Respondent and the Logan County Court of Common Pleas exercised judicial power over

the First Logan County Action when Respondent signed a judgment entry purporting to

strike the Dismissal With Prejudice and reinstate jurisdiction to the trial court.

23. Respondent and the Logan County Court of Common Pleas are continuing to exercise

judicial power over the Second Logan County Action.

24. Respondent's exercise of judicial power over the First Logan County Action subsequent

to the Dismissal With Prejudice was unauthorized by law as Respondent was divested of

jurisdiction when the case was unconditionally dismissed.

25. Because Respondent lacks subject matter jurisdiction over the case, the availability of a

remedy in the course of the law is irrelevant.

26. Relator is entitled to a writ of prohibition ordering Respondent to vacate and set aside the

Dismissal Without Prejudice.

27. Relator is entitled to an order vacating and setting aside the judgment entry.

28. Relator is entitled to an order reinstating the dismissal with prejudice.

29. Relator is entitled to a writ of prohibition barring Respondent from further exercising

jurisdiction over the Second Logan County Action.

WHEREFORE, Relator is entitled to a Writ of Prohibition ordcring Respondent, The

Honorable Mark S. O'Connor, to do the following: (1) vacate and set aside the purported

dismissal without prejudice; (2) vacate and set aside the Judgment Entry granting the Motion to

Strike Inadvertent Filing; and (3) reinstate the dismissal with prejudice. Relator is additionally

entitled to an order that prohibits Respondent from hearing any additional motions with regard to

the original or pending Logan County actions. In the alternative, Relator seeks a declaration that

the Judgment Entry issued by Respondent allegedly striking the dismissal with prejudice was a

4

de facto nunc pro tunc order issued without providing Relator with notice and an opportunity to

be heard even though Relator was unrepresented at the time the judgment entry was signed.

Relator is also entitled to court costs, reasonable attorneys' fees, statutory damages, and all other

relief this Court deems equitable.

Respectfully submitted,

Michael F. Copley (0033796)Mark E. Landers (0026042)Kenley S. Maddux (0082786)The Copley Law Firm, LLC1015 Cole RoadGalloway, Ohio 43119Telephone: (614) 853-3790Facsimile: (614) 467-2000E-mail: [email protected]

COUNSEL FOR RELATORCLARENCE "GENE" HARRIS

5

IN THE SUPREME COURT OF OHIO

State of Ohio on Relation ofCI arence "Gene" Harris,

Relator,vs.

The Honorable Mark S. O'Connor,

Respondent.

AFFIDAVIT OF CLARENCE ("GENE") HARRIS

STATE OF OHIO

COUNTY OF LOGANSS:

Now comes Affiant, Clarence E. Harris also known as Gene Harris, being duly sworn and

cautioned, and assuring his competency to testify to the matters stated below based on personal

knowledge and states the following:

1. I currently reside at 209 Mianri Avenue, Bellefontaine, Ohio 43311.

2. I was married to Wanda Barker prior to our divorce which became official on October 13,

2005.

3. Pursuant to the Separation Agreement I executed with Wanda Barker, I became a fifty

percent owner of Hi-Point Service, Inc.

4. Hi-Point, Wanda Barker, and myself were sued by Thomas & Marker Construction Co. in

2007 the Logan County Court of Common Pleas case number CV 07 07 0350.

5. Judge Mark S. O'Connor of the Logan County Court of Common Pleas was the judge

assigned to case number CV 07 07 0350.

I 11

6. Wanda Barker and I retained Patrick Smith to represent us individually as well as IE-Point in

the aforementioned litigation.

7, Patrick Smith withdrew his representation of me on October 25, 2007.

8. Attached and labeled Exhibit A is a true and accurate copy of the October 25, 20071etter.

9. Thomas & Marker filed a notice dismissing me from the lawsuit "with prejudice" on

November 28, 2007.

10. On May 5, 2008, Thomas & Marker filed a complaint against my wife, Barbara, and I.

11. This case was given case number CV 08 05 0255.

12. The complaint filed in CV 08 05 0255 was based on the same facts as the previous Logan

County action that was disnrissed.

FURTHER AFFIANT SAYETH NAUGHT.

Clarence E. Harris

Sworn and subscribed to before me this JE day of 2008.

My Commission expires on: (AL69

Notary Public Date

BRENDA G. PETTITNotary Public, State of Ohio

My Commission ExpiresJune 9, 2009

2

,il'}..:^ Lt1J'f^ 1 1

01?P10?1 PLEA5 OOfIRTF'LED

211391 JUL 26 PM !: 36

DOTTIE TUTTLE1;j

IN THE COURT OF COMMON PLEAS OF LOGAN COUNTY,^+Î%

THOMAS & MARKER CONSTRUCTION CO.2084 LJS 68 South, P.O. Box 250Bellefontaine, Ohio 4331 I

Plaintiff, CaseNoCV07070350

vs.

HI-POINT CRANE SERVICE, INC.310 Water AvenueBellefontaine, Ohio 43311

WANDA K. HARRIS aka WANDA K. BARKER2723 Township Road 179Bellefontaine, Ohio 43311

CLARENCE E. HARRIS aka GENE HARRIS209 Miami Aven.ueBellefontaine, Ohio 433 I 1

Defendants.

Judge Mark O'Connor

Complaint for Forcible Entry andDetainer, Replevin, Appointmentof. Receiver, Fraudulent TransfersMoney Damages and Other Relief

COMPLAINT

I. Plaintiff Thomas & Marker Construction Co. ("Thomas & Marker") is an Ohio

corporation with its principal place of business at the address set forth in the caption of the

Complaint.

2. Defendant Hi-Point Crane Service. Inc. ("Hi-Point") is an Ohio cotporation with

its principal place of business at the address set forth in the caption of the Complaint. Defendant

Wanda K. Harris ('`Wanda") aka Wanda K. Barker owns real estate and is believed to reside at

the address set forth in the caption of the Complaint. Defendant Clarence E. Harris ("Gene") aka

flXHIBII

1 '

Gene Harris has one of his principle residences is at the address set forth in fhe caption of the

Complaint.

3. Thomas & Marker and Hi-Point entered into a verbal month-to-month tenancy for

the lease of the real estate owned by Thomas & Marker and located at 310 Water Avenue,

Bellefontaine, Ohio 43311 (the "Premises").

4. The month-to-month tenancy is for commercial property. In exchange for rental

of the Premises, Hi-Point agreed to pay Thomas & Marker Eight Hundred Dollars ($800.00) per

month as rental paymeuts for the Premises.

5. Hi-Point entered into possession of the Premises more than ten years ago. Hi-

Point has unlawfttlly retained possession of the Premises since April 15, 2006. Hi-Point has

failed to make monthly payments since the aforementioned date.

6. Hi-Point has failed to make monthly payments, when due, under the verbal

Commercial Lease.

7. On July 20, 2007, Thomas & Marker, by and through its designated agent, setved

upon Hi-Point a Notice to Leave Premises within 3 days. (A copy of that Notice to Leave

Premises is attached hereto and incorporated herein as Exhibit 1.)

8. Over the span of more than ten years, Thomas & Marker has loaned monies to 1-Ii-

Point to enable I3i-Point to purchase certain trade equipment. Eacli time Thomas & Marker

loaned money to Hi-Point, Hi-Point granted Thomas & Marker a Security Agreement relative to

the specific equipment, together with a Demand Protnissory Note.

9. The table set fortli below identifies specific pieces of equiptnent (collateral)

purchased by Hi-Point and financed by Thomas & Marker, together with the date of the Security

Agreement executed therewitli, as well as the amount of the Promissory Note in comiection with

2

said transaction. The table also ideutifies Thomas & Marker's designated exhibit number for the

referenced documents that are attached hereto and incorporated herein by refereuce.

ExhibitNumber

Security AgreementEquipment/Collateral Date

Promissory NoteAmount

2 One (1) 20' A-Fratne Jib, Four (4)23' A-Frame Jibs, One (1) 24'A-Frame Jib and One (1) 26'Swingaway Jib July 18, 1991 $7,500.00

3 32' Boom Section for 50 Ton Crane Attgust 2, 199 t $2,900.00

4 Two (2) 28' Jib Sections November 18, 1991 $3,500.00

5 One (1) Trailmobile 40' Trailer withtandem axle, S/N TR171320 and20' Storage Container with misc. tools August 10, 1992 $9,000.00

6 1987 Grove TMS250C, 35 tonhydraulic truck crane, 80' boom,26' Jib and One (1) winch January 19, 2000 $25,000.00

7 Five (5) PAT Computer Systems May 25. 1994 $22.204.27

8 1985 Grove Model AP308. 8%2 toncapacity 24' Bootn, 10' Jib and One(1) winch, ball, powered with CumminsDiesel . August 13, 1996 $6,000.00

9 One (1) 1970 Grove TM275, 30 tonhydraulic truck crane, 80' boom, 24' Jib,Two (2) winches and block and ball

10. Hi-Point has failed to meet its obligations to pay amounts due and owing, on

demand, under the Promissory Notes, including interest and principle.

11. Upon information and belief, Idi-Point has moved equipment subject of the

Security Agreements to locations beyond 310 Water Avenue, Bellefontaine. Ohio, without the

consent of Thomas & Marker as required under the Security Agreements.

3

12. As of June 30, 2007, Hi-Point owed Thomas & Marker One Hundred Eighty-

Eight Thousand Three Hundred Ten Dollars and Twenty-Two Cents ($188,310.22) in interest

alone on the equipment loans referenced above. (A copy of Thomas & Marker's statement and

summary interest due calculations is attached hereto and incorporated herein as Exhibit 10.)

Li. On June 11, 2007, Thomas & Marker met with officials or representatives of Hi-

Point at 310 Water Avenue in an attempt to reorganize the debts to the reasonable satisfactiou of

Thomas & Marker, and to consolidate certain debts and update obligation papers. Hi-Point. by

and through its officers or representatives, rejected those attempts.

14. By letter dated June 22, 2007, Hi-Point admitted its defatdts relative to the loan

obligations and made fiuther promises and representations to Tliomas & Marker. The proinises

and representations have since been breached.

FIRST CAUSE OF ACTION: FORCIBLE ENTRY AND DETAINER

16. Thomas & Marker hereby incoiporates all preceding paragraphs as if fully

restated herein.

17. As alleged above, Hi-Point lias unlawfully retained possession of the Premises

since on or about April 15, 2006.

18. Hi-Point's unlawful possession is predicated on its failure to make rent payment

when due, as required under the month-to-month verbal tenancy.

19. Thomas & Marker has dtdy caused a Notice to Leave Premises to be served upon

Hi-Pointin accordance with Ohio Law.

20. Hi-Point has remained in possession of the Premises and the 3 day period as

required under the 3 Day Notice has lapsed.

21. Thomas & Marker is entitled to restitution of the Premises.

4

SECOND CAUSE OF ACTION: BREACH OF CONTRACTS (MONEY DAMAGES)

22. Thomas & Marker hereby incoiporates all preceding paragraphs as if fully

restated herein.

23. As alleged above, Hi-Point has failed to make payments for rent of the Premises

when due, and has also failed to malce interest and principle payments relative to the Demand

Promissory Notes and Commercial Security Agreements related thereto. With respect to rent for

the Premises, Hi-Point currently owes Thomas & Marker Thirteen Thousand Eight Hundred

Eight Dollars and Forty-Nine Cents ($13,808.49).

24. With respect to the equipment loan transactions, all of which are secured and

subject to the Demand Promissory Notes, Hi-Point owes Thomas & Marker One Hundred

Eighty-Eight Thousand Three Hundred Ten Dollars and Twenty-Two Cents ($188,310.22).

THIRD CAIISE OF ACTION: REPLEVIN

25. Tliomas & Marker hereby incorporates all preceding paragraphs as if fully

restated lierein.

26. As alleged above, the Demand Promissory Notes and Security Agreements

attached hereto artd incorporated herein by specific reference as set forth above, provide, among

other things, that if Hi-Point defaults on its obligations there under, Thomas & Marker has the

right to repossess collateral. Hi-Point has failed to reniit to Thomas & Marker required payments

under the Promissory Notes and Sectirity Agreements. The collateral is either locked up or has

been relocated to unlaiown places.

27. Thomas & Marker has declared the entire unpaid balance of the Promissory Notes

now due payable, and those Notes are secured by the Commercial Security Agreements.

5

28. Tliere is now due and owing Thomas & Marker the net sum of One FItmdred

Eighty-Eight Thousand Three Hundred Ten Dollars and Twenty-Two Cents ($188,310.22)

relative to the Promissory Notes secured by the Security Agreements.

29. Hi-Point has wronghillv detained the collateral.

30. Plaintiff demands that the collateral be recovered and possession thereof be

returned to Thomas & Marker and for such otlter fttrtlter relief as may be appropriate under the

circumstances.

FOURTFI CAUSE OF ACTION: APPOINTMENT OF RECEIVER

31. Thomas & Marker hereby incorporates all preceding paragraphs as if Ililly

restated herein.

32. Thomas & Marlcer, as a creditor of Hi-Point, requests appointment of a receiver.

33. A receiver is warranted and justified pursuant to RC §2735.01(A) and (E) and (F).

34. Any delay in appointing the receiver will risk irreparable harm to Thomas &

Marker because the petsonal property subject of the Security Agreements will be ftirther wasted,

dissipated, j-emoved or damaged; thus, appointment of the receiver must be immediate.

FIFTH CAUSE OF ACTION: FRAUDULENT TRANSFERS

35. Th.omas & Marker hereby incorporates all preceding paragraplis as if fully

restated lierein.

36. Hi-Point is insolvent as defined under RC § 1332.02.

37. Wanda is insolvent as defined under RC § 1336.02.

38- Gene is insolvent as defined underRC §1336.02.

39. Wanda is believed to be the President and alter ego of Hi-Point.

40. Wanda is an "insider" of Hi-Point pursuant to RC § 1336.01(G).

6

41. Gene is an "insider" of Hi-Point pursuant to RC §1336.01(G).

42. Hi-Point, Wanda and Gene have transferred assets or interests in assets; that is,

Hi-Point, Wanda and Gene have disposed of or parted with assets or an iuterest in an asset

subject of the loan transactions and Security Agreements granted to Thomas & Marker without

Thomas & Marker's consent, iuthority or acquiescence. Hi-Point, Wanda and Gene have made

the transfers or incurred other obligations in the following ways:

i. With actual intent to hinder, delay, or defraud Thomas & Marker; atid

ii. Without receiving a reasonably equivalent value in exchange for the

transfer or obligation, under the circumstances where Hi-Point, Wanda and Gene

were engaged or about to engage in a business for transaction for which the

remaining assets of Hi-Point or its directors, officers or insiders were

uttteasonably small in relation to the business or transaction, or Hi-Point, Wanda

or C'rene intended to incur, or believed or reasonably should have believed that

they would incur debts beyond their ability to pay as it became due.

43. Hi-Point, Wanda and Gene's actual intent alleged in the previous paragraph are

evidenced by, among other things, the tollowing:

i. "lhe transfer was to an insider as certain transactions have taken place

under a dba or other entity formed by Gene;

ii. Wanda or Gene, or both, retained possession or control of certain property

transferred to another entity, whether a formal statutory entity or "doing business

as" on behalf of one of the insiders;

iii. The transfers or obligations were disclosed or concealed fronl Thomas &

Marker;

7

iv. The transfers or obligations were incurred after Hi-Point, Wanda and Gene

had been sued in another inatter, and had been threatened to be sued by Thoinas

& Marker;

v. The transfers were substantially all of the assets of debtor;

vi. I-li-Point, Wanda or Gene, or all of them, absconded;

vii. Hi-Point, Wanda of Gene, or all of them, removed or concealed assets;

viii. The value of consideration received by Wanda, Hi-Point or Gene, or all of

them, was not tlie reasonable equivelant to the value of the asset transfen-ed or

the amount of the obligatioil incurred;

ix. Hi-Point, Wanda and Gene were all insolvent or became insolvent sliortly

aftcr the transfer or transfers were made or the obligation or obligations were

incLUred;

X. The transfers occurred shortly before or after a substantial debt was

incurred; and

xi. Hi-Point, Wanda or Gene, or all of them, transferred the essential assets of

the business to a lien holder who transferred the assets to an insider of the debtor.

44. Thomas & Marker is entitled to damages in the amount of Two Hundred and "l'wo

Thousand One Hundred Eighteen Dollars and Seventy-One Cents ($202,118.71) in connection

with the fraudulent transfers, together with punitive damages of Twenty Five Thousand Dollars

($25,000.00) and attorney fees associated therewith.

SIXTH CAUSE OF ACTION: UNJUST ENRICHMENT (QUANTUM MERUIT)

45. Tlxomas & Marlcer hereby incorporates all preceding paragraphs as if fully

restated herein.

8

46. To the extent any of the commercial rental or loan transaetions by and between

Thomas & Marker and Hi-Point are deenled to be not subject to either written or vcrbal

agreetnents, Thomas & Marker is entitled to equitable relief ttnder the theory of quanttttn meriut

(unjust enrichment).

47. Thotnas & Maker loaned monies to Hi-Point and otherwise extended trade credit

and tinancing to Hi-Point.

48. The loans and financing and other trade credit were extended at the request of Hi-

Po

49. Hi-Point has benefited frotn the commercial transactions alluded to in the

previous two paragraphs.

50. Hi-Point has failed to compensate Tliomas & Marlcer for the loans and other trade

credit extended.

51. It would be unjust for Hi-Point to retain the benefrt of the valuable consideration

paid or provided by Thomas & Marker due to Hi-Point's default on its quasi-contractual

obligations.

DEMAND FOR JUDGMENT

WHERF,FORE, Thomas & Marker demands judgment against Hi-Point as follows:

A. Restitution of the Premises;

B. Monetary damages in the amot.mt of Thitteen Thousand Eiglrt Hundred Eight

Dollars and Forty-Nine Cents ($13,808.49) in connection with the breach of the

month-to-month tenancy for the Premises as well as damages in the amount of

One Hundred Fighty-Eight Thousand Three Hundred Ten Dollars and Twenty-

Two Cents ($188,310.22) with respect to breach of the Demand Promissory Notes

secured by the Security Agreements relative to the trade equipment/collateral;

9

C. An Order mandating Thonias & Marker be entitled to recovery and possession of

the equipment/trade collateral, and that Hi-Point cause delivery of samc to

Thonias & Marker's principle place of business or other location designated by

Thomas & Marker;

D. Appointment of Williatn T. Goslee as receiver pursuant to RC §2735.01 e[ seq.;

and

E. Reasonable attorney fees pLUsuant to the plain language of the Conunercial

Promissory Notes and Security Agreements;

F. An order finding Hi-Point, Wanda and Gene fraudulently transferred assets.

judgnient in favor of Tllomas & Marker against Hi-Point. Wanda and Gene.

jointly and severally, for the following:

1) Compensatory daniages of Two Hundred Two Thousand One Hundred

Eighteen Dollars and Seventy-One Cents ($202,118.71);

2) Punitive damages of Twenty-Five Tliousand Dollars ($25,000.00);and

3) Reasonable attorney fees;

G. Judgment in favor of Thomas & Marker against Hi-Point in the amoLUit of Two

Hundred Two Thousand One Hundred Eighteen Dollars and Seventy-One Cents

($202,118.71) under the theory of unjust enrichment (quantum meruit); and

H. Pre and post-judgment interest at the prevailing statutory rate, costs in this action,

and all other legal and equitable relief to which 1'homas & Marker is entitled.


THOMPSON, DUNLAP & HEYDINGER, LTD.

By: .Q Lû GTerren G. Stolly (#00734)1111 Rush Ave., P.O. Box 68Bellefontaine, OH 43311-0068Telephone: (937) 593-6065Facsimile: (937) 593-9978E-Mail: [email protected]

A'fTORNEYS FOR PLAINTIFF

10

IN THE COURT OF COMMON PLEAS OF LOGAN COUNTY, OffiO

THOMAS & MARKER CONSTRUCTION CO.

Plaintiff,Case No. CV 08 05 0255

vs.Judge Mark O'Connor

CLARENCE E. HARRIS, et al.

Defendants.

AFFIDAVIT OF WANDA BARKER/AKA WANDA HARRIS

STATE OF OHIO

COUNTY OF LOGANSS:

Now comes Affiant, Wanda Barker, being duly sworn and cautioned, and assuring her

competency to testify to the matters stated belowbased on personal knowledge and states the

following:

1. I currently reside at 2723 Township Road 179, Bellefontaine, Ohio 43311.

2. i was man•ied to Clarence "Gene" Harris until our divorce which became official on October

13, 2005.

3. I was a fi8y percent owner of Hi-Point Crane Services, Inc.

4. Hi-Point, Gene Harris, and I were sued by Thomas & Marker Construction Co. in 2007,

Logan County Court of Common Pleas case number CV 07 07 0350.

5. Gene Harris and I retained Patrick Smith to represent us and Hi-Point in the aforementioned

litigation.

6. On November 28, 2007, Thomas & Marker dismissed Gene Harris with prejudice.

7. On November 28, 2007, Thomas & Marker sent a settlement agreement to my attorney.

8. I signed the settlement agreement with Thomas & Marker on November 30, 2007.

„ EXHIBIT

gg c8

9. I agreed to and signed the settlement agreement with the understanding that Gene Harris had

been dismissed from the litigation with prejudice meaning he could no longer be sued for the

same subject matter.

10. Without my knowledge, on December 3, 2007, Thomas & Marker filed a Motion to Strike

Inadvertent Filing striking the dismissal with prejudice.

11. Without my lmowledge, on December 5, 2007, Thomas & Marker filed a motion dismissing

Gene Harris without prejudice.

FURTIER AFFIANT SAYETH NAUGHT.

Wanda K. Barker, AKA Wanda K. Hacns'

Sworn and subscribed to before me this day of 2008.

6

Corpmission expires on:

'pV

N*q PcDte, SYaofWks MyCommWnlmsssodhpA&

= Seriam147.D30,R.C.

^ ; ioxanu^s tw^ w^y:^t^= Date

2

IN THE COMMON PLEAS COURT OF LOGAN COUNTY, OHIO


Plaintiff,

v. . Case No. CV 07 07 0350

HI-POINT CRANE SERVICE, INC., et al., . Judge Mark S. O'Connor

Defendants.

NOTICE OF DISMISSAL

Plaintiff Thomas & Marker, by and through its undersigned counsel, hereby provides

notice of dismissal of its claims against Clarence E. Harris aka Gene Harris asserted herein,

WITH PREJUDICE, pursuant to Ohio Rule of Civil Procedure 41(A)(1)(a).


THOMPSON, DUNLAP & HEYDINGER, LTD.f ^^,Q /̂^^,^

G. S1^""'^By: lC^^Terrence ti. Stolly (#0073266)1111 Rush Avenue, P.O. Box 68Bellefontaine, Ohio 43311Telephone: (937)593-6065Facsimile: (937)593-9978E-mail: [email protected]

ATTORNEY FOR PLAINTIFFS

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of the foregoing Notice was served via U. S.tr

Mail upon the following this aE day of SOveyv,b?l , 2007:

William T. Goslee, Receiver (and via Facsimile)Goslee & Goslee114 SouthMainStreetBellefontaine, Ohio 43311

Patrick K. Smith, Esq. (and via Facsimile)120 West Second Street, Suite 1300Dayton, Ohio 45402

Gene Harris209 Miami AvenueBellefoiitaine, Ohio 43311

Terrence G. Stolly (#007 6)

2



Plaintiff,

Case No. CV 07 07 0350

HI-POINTT CRANE SERVICE, INC., et al., . Judge Mark S. O'Connor

Defendants.

MOTION TO STRIKE INADVER'TENT FILING

Plaintiff Thomas & Marker Construction Co. ("Thomas & Marker"), by and through its

undersigned counsel, hereby moves the Court to strike an inadvertently filed Notice of Dismissal

of Defendant Clarence E. Harris aka Gene Harris ("Defendant Gene"). The reasons in support of

this Motion are set forth in the Memorandtim below.

Respectfully stibmitted,


Terre4e G. Stolly (#00736b)I 111 Rush Avenue, P.O. Box 68Bellefontaine, Ohio 43311Telephone: (937)593-6065Facsimile: (937)593-9978E-mail: [email protected]

ATTORNEY FOR PLAINTIFF

MEiVIORANDUM IN SUPPORT

Thomas & Marker's undersigned counsel inadvertently signed and caused to be filed a

Notice of Dismissal of Defendant Gene with prejudice. The erroneously filed Notice of

Dismissal is attached hereto and incorporated herein as Exhibit A. The filing of the Notice of

Dismissal, with prejudice, was a mistake by Thomas & Marker's counsel. (See Affidavit of

Terrence G. Stolly attached hereto and incorporated herein as Exhibit B.) The erroneously filed

Notice of Dismissal was not bargained for by Defendant Gene Harris. (Id. at ¶5.) Indeed,

Defendant Gene was not represented by counsel at the time the erroneously filed Notice of

Disnussal was filed as he had previously discharged his counsel. (Id.)

The best evidence of the unintentional and inadvertent filing of the Notice of Disniissal is

correspondence by and between Thomas & Marker's counsel and counsel for Defendant Hi-

Point Crane Service, Inc. ("Hi-Point") and Wanda K. Harris aka Wanda K. Barker ("Defendant

Wanda"). (See Affidavit of Terrence G. Stolly at 1[6 and Exhibit 1 attached thereto.) The

correspondence from Stolly to Smith and Goslee demonstrates that Thomas & Marker negotiated

a resolution and a ixiaterial term of that resolution was a dismissal WITHOUT PREJUDICE of

Defendant Gene. (Id. at ¶16 and 7.) Defendant Gene had no involvement in these neptiations,.

and has failed to have any communications with any of the parties in this litigation since he

discharged his counsel. (Id. at ¶5.) The filing of the Notice of Dismissal, with prejudice, was an

eiror and mistake by attorney Stolly; two (2) different Notices of Dismissal existed in the

computer systenl and the Notice, with prejudice, was presented to attomey Stolly who simply

failed to recognize the critical error before signing and causing same to be filed.

Thomas & Marker respectfully prays that the Court order the Notice of Dismissal, witli

prejudice, filed on November 28, 2007, to be stricken from the record and declared void ab

initio. A proposed Judgment Entry granting this Motion is tendered herewith for the Court's

consideration.

2



Terrence G. Stolly (#00732y)1111 Rush Avenue, P.O. Box 68Bellefontaine, Ohio 43311Telephone: (937)593-6065Facsimile: (937)593-9978E-mail: [email protected]

ATTORNEY FOR PLAINTIFF


The undersigned hereby certifies that a copy of the foregoin^ Motion to StrikeInadvertent Filing was served via U. S. Mail upon the following this ^ day of December,2007:

William T. Goslee, ReceiverGoslee & Goslee114 South Main StreetBellefontaine, Ohio 43311

Patrick K. Smith (#0011208)120 West Second Street1300 Liberty TowerDayton, Ohio 45402

Gene Harris209 Miami AvenueBellefontaine, Ohio 43311

Terrence . Stolly (#0073266)

3

" - 28 ML

IN THE COMMON PLEAS COURT OF LOGAN COUNTY, (3f^liC^,^ i^^^ 1^^CLEi;t`^


Plaintiff,

V.

HI-POINT CRANE SERVICE, INC., et al.,

Defendants.

Case No. CV 07 07 0350

Judge Marlc S. O'Connor

NOTICE OF DISMISSAL

Plaintiff Thomas & Marker, by and througll its undersigled counsel, hereby provides


WITH PREJUDICE, pursuant to Ohio Rule of Civil Procedure 41(A)(1)(a).

Respectfiilly submitted,


Terrence U. Stolly (#0073266)1111 Rush Avenue, P.O. Box 68Bellefontaine, Ohio 43311Telephone: (937)593-6065Facsimile: (937)593-9978E-mail: [email protected]

eVA-k G. '



The undersigned hereby certifies that a copy of the foregoing Notice was served via U. S.nil-,

Mail upon the following this ^ day of Npvembll , 2007:

William T. Goslee, Receiver (and via Facsimile)Goslee & Goslee114 South Main StreetBellefontaine, Ohio 43311



Terrence G. Stolly (#007 6)



Plaintiff,

v. Case No. CV 07 07 0350

HI-POINT CRANE SERVICE, INC., et al., Judge Mark S. O'Connor

Defendants.

AFFIDAVIT OF TERRENCE G. STOLLY

STATE OF OHIO )) SS:

COUNTY OF LOGAN )

Now comes Terrence G. Stolly, being first duly cautioned and swom, deposes and says asfollows:

1. I am over the age of eigllteen (18) years and have personal knowledge of all matterstestified to herein.

2. I am the attorney representing Thomas & Marker Construction Co. ("Thomas &Marker") in the above-referenced lawsuit.

3. I was authorized by my client, Thomas & Marker, to resolve its dispute withDefendants Hi-Point Crane Service, Inc. ("Hi-Point") and Wanda K. Harris akaWanda K. Barker ("Defendant Wanda") under certain temis and conditions.

4. The terms and conditions of the dispute resolution included the dismissal ofDefendant Gene Harris ("Defendant Gene") without prejudice.

The dispute i-esolution, including dismissa] of Defendant Gene, was not bargained forby Defendant Gene as he had discharged his counsel prior to the filing of the Noticeof Dismissal.

By letter dated November 13, 2001,, I infonned Patrick K. Smith, counsel for Hi-Pointand Defendant Wanda of Thomas & Marker's decision to dismiss Defendant Genewithout prejudice. (A copy of my November 13, 2007 letter is attached hereto andincorporated herein as Exhibit 1.) Dismissal of Defendant Gene was a material termto global resolution of this case.

1

7. By letter dated November 27, 2007, I followed up with Mr. Smith, as well as theReceiver in this action, William T. Goslee, and confirmed that Thomas & Markerwould dismiss Defendant Gene, without prejudice, prior to the execution ofthedocuments in connection with the settlement between Thomas & Marker and Hi-Point and Defendant Wanda. (A copy of my November 27, 2007 letter is attachedliereto and incorporated herein as Exhibit 2.)

Further affiant saith naught.

];^7Terrede G. Stolly

Subspxib^d a^ d swom before me this^ day of December, 2007.1:^P^....^..5

ANGELA D. ROBINSON, Notaty PultHa-InandfortheStaleofotno:MVCommissionExpiresDacemher7b,20

or^âs....a.e

otary Public

2

THOMPSON, DUNLAP & HEYDINGER, L

Edward C. Thompson (1907-1978)Robert E. Dunlap (1929 - 2005)

MEMBERS

Thomas A. Heydinger

Robert B. MacDonald Jr.David R. Watkins

Howard A. Traul IIDane M. HannaChad A. RossTerrence G. Stolly

ASSOCIATES

Gabriel D. WicklineJohn D. BodinBrent G. Walters

Patrick K. Smith, E,sq.Attomey at Law120 West Second Street, Suite 1300Dayton, Ohio 45402

November 13, 2007

BELLEFONTAlNE

1 I 11 Rush Avenue, P.O. Box 68Bellefontaine, Ohio 433 11- 0068

Main: (937)593-6065Fax: (937)593-9978

INDIAN LAKE

Main: (937)843-4040Fax: (937) 843-3024

WEBS/TE

www.tdh-law.com

Via Facsimile

Re: Thomas & Marker Construction Co. v. Hi-Point Crane Service, Inc., et al.Logan County Common Pleas Court Case No. CV 07 07 0350TDH File No.: 4934

Dear Mr. Smith:

This is a follow up to your November 12, 2007 letter to me, and our telephone conferenceon November 13, 2007, with respect to the above-referenced matter.

The requested changes to the notary sections of the documents have been made. Withregard to Gene Harris, I have conferred with my client about Mr. Harris and his involvement inthe matter. Thomas & Marker is not willing to dismiss Mr. Harris, with prejudice, or have himas a signatory to the Agreement and related agreed motions. Mr. Harris is not represented in thismatter, as I understand it, and he is a 50% shareholder of Hi-Point Crane Service, Inc. WandaHarris is also a 50% shareholder and is the President of the corporation. In that capacity, she isauthorized and empowered to make all decisions for the corporation, and execute any documentson behalf of the corporation, without the consent, approval or ratification by Mr. Harris.

I understand that Thomas & Marker's position is somewhat complicated by the fact thatMr. Harris was originally joined in this action as a paity defendant. Therefore, Thomas &Marker has instructed me to dismiss Mr. Harris immediately from the action. The Rule 41(A)(1)dismissal will be without prejudice. Thus, Mr. Harris will be dismissed from the action beforeany documents are executed and he, therefore, would have no standing in this litigation tocomplain. This would also eliminate any problem associated with him somehow arguing that thecorporation's counsel, or the President and other 50% shareholder of the corporation, somehowowed him a duty.

ATTORNEYS AND COUNSELORS AT LAW

Patrick SmithNovember 13, 2007Page 2 of 2

Thomas & Marker remains ready, willing and able to reach the substantial compromise ofits claims against the corporation and Wanda Harris personally. Please confirm that thecorporation and Mrs. Harris are willing to proceed forward with execution of all of the settlementdocuments, and upon such acknowledgment from you,.the dismissal of Mr. Harris, withoutprejudice, will be filed. Thank you for your attention to this matter.

Sincerely,

^ G.Terrence G Stolly

TGS:adrCopy: Randy Marker

THOMPSON, DUNLAP & HEYDINGER, LATTORNEYS AND COUNSELORS AT LAW

Edward C. Thompson (1907-1978)Robert C. Dunlap (1929 - 2005)

MEMBERS

Thomas A. HeydingerRobert B. MacDonald Jr.David R. WatkinsHoward A. Traul 11Dane M. HannaChad A. RossTerrence G. Stolly

ASSOCIATES

Gabriel D. Wickline,lohn D- Bodin

Brent G Walters

Patriclc Smith120 West Second Street1300 Liberty TowerDayton, Ohio 45402

William T. Goslee, Esq.Goslee & GosleeAttorneys at Law114 South Main StreetBellefontaine, Ohio 43311

November 27, 2007

BELLEFONTA[NE

I 1 I I Rush Avenue, P.O. Box 68Bellefontaine, Ohio 43311 - 0068

Main: (937)593-6065Fax: (937)593-9978

lNDIAN LAKE

Main: (937)843-4040Fax: (937) 843-3024

WEBSITE

www.tdh-law.com

Via Facsimile

Via E-Mail

Re: Thomas & Marker Construction Co. v. Hi-Point Crane Service, Inc., et al.Logan County Common Pleas Court Case No. CV 07 07 0350TDH File No.: 4934

Dear Mr. Smith and Mr. Goslee:

This is a.follow up to Mr. Smith's voice mail message to me on November 26, 2007. Inthat voice mail, Mr. Smith confirmed that his clients, Hi-Point Crane Service, Inc. and WandaHarris, have agreed to execute the documents previously distributed to both of you by way of mytwo (2) November 9, 2007 letters. The only apparent hold up was consideration by Mr. Smith'stwo (2) clients as to whether they would agree to sign the docutnents absent Gene Harris. Pleaserecall that my November 13, 20071etter explained that Thomas & Marker will dismiss Mr.Harris, without prejudice, prior to execution of any of the doannents. In light of the voice mailfrom Mr. Snuth, and my earlier conversation with Mr. Goslee, my client shall now dismiss Mr.Harris so that he is no longer a party to the action and to facilitate execution of the documents bythe remaining parties and their counsel, as well as the receiver.

Enclosed are the following documents, whicli you both previously received, which nowneed to be executed:

1. Settlement Agreement';2. Cognovit Promissory Note;

I Mr. Sniith pointed up a shortcoming in the notary section of this document, and modifications have been made tothe notary section of the document in line with his request.

Patrick Stnith, Esq.William T. Goslee, Esq.November 27, 2007Page 2 of 2

3. Consent OrderZ; and4. Agreed Motion to Discharge Receiver, together with Order Discharging Receiver.

Set forth below is a summary of what needs to be done with respect to each of the documentslisted above:

SETTLEMENT AGREEMENT

Mr. Smith needs to have Wanda Harris sign the Settlement Agreement in her personalcapacity and in her capacity as President of Hi-Point Crane Service, Inc. She needs to sign in thepresence of a notary public. I am following up with my client to have him sign the document aswell.

COGNOVIT PROMISSORY NOTE

Wanda Harris also needs to sign the Cognovit Pronussory Note before a notary public.The date in the ttpper right comer needs to be filled in, as well as the date immediately above thesigiiature section.

CONSENT ORDER

Mr. Smith must sign this document. I have signed the documents as indicated in theenclosures herewith.

AGREED MOTION TO DISCHARGE RECEIVER ANDORDER DISCHARGING RECEIVER

Mr. Sniith must sign this document. As yott will see, I have already signed the Motionand Meniorandum in Support thereof.

The only affirmative action Mr. Goslee must take is to file his Supplemental Application. I amasking Mr. Smith to fax all executed documents to me, and send the originals by regular mail.

Please contact me if you have any questions regarding this letter or the enclosuresherewith. Thank you for your cooperation in resolving this matter.

Sincerely,

TGS:adrCopy: Randv Marker V'

Terrence G. Stolly

2 Mr. Goslee, if you have not already done so, please submit your Supplemental Application as referenced in thisproposed Consent Order,

A;°11 I : 23

UOl liE ifJ; TLF.r^^t(..'€ Ê> >



Plaintiff,

v. Case No. CV 07 07 0350

H1-POINT CRANE SERVICE, INC., et al., Judge Mark S. O'Connor

Defendants.

JUDGMENT ENTRY

This matter came on before the Court upon the Motion of Plaintiff Thomas & Marker

Construction Co. to strike inadvertently filed Notice of Dismissal of Defendant Gene Hanis with

prejudice. The Court fnds the Motion WELL TAKEN. It is, therctore, ORDERED, that t1.tc

\otice of Dismissal of Defendant Gene Harris filed on November 28. 2007 be and herehv is

strickei) from the record and declared void ab initio.

IT IS SO ORDERED.

C upy ? errence G. StollyPatrick K. Smith

W illiani T. Goslee

Gene Harris

Judge Mark S. O'Connor

EXHIBITr i]

F"C.I=-.A S LCt3fli-.-

2D37 ?Ei.-5 AM ff: Q;

IN THE COMMON PLEAS COURT OF LOGAN COUNTY, OHISOTf I" TUTTLEcÊmkTHOMAS & MARKER CONSTRUCTION CO.

Plaintiff,

V. . Case No. CV 07 07 0350

HI-POINT CRANE SERVICE, INC., et al., . Judge Mark S. O'Connor

Defendants.

NOTICE OF DISMISSAL

Plaintiff Thomas & Marker, by and through its undersigned counsel, hereby provides


WITHOUT PREJUDICE, pursuant to Ohio Rule of Civil Procedure 41(A)(1)(a)'.


)UNLAP & HEYDINGER, LTD.THOMPSON^^y

By: ^,t 6Terrence L. Stolly (#0073266)1111 Rush Avenue, P.O. Box 68Bellefontaine, Ohio 43311Telephone: (937)593-6065Facsimile: (937)593-9978E-mail: [email protected]


' A previously tiled Notice of Dismissal was sh-teken from the record by way of Judgment Entry dated December 4.

`0o7. EXHIBR

$ G


The undersigned hereby certifies that a copy of the foregoing Notice was served via U. S.

Mail upon the following this ^^day of j)tt¢^W , 2007:

William T. Goslee, Receiver (and via Facsimile)Goslee & Goslee114 South Main StreetBellefontaine, Ohio 43311



Terrence 6. Stolly (#0073266)f

:CUi I Y.a.S COJR T

#':..FD

2vHu IRY -5 Pi3 3: 3 7

D OiT;Y 1lat 1L ECL^,),KIN THE COURT OF COMMON PLEAS OF LOGAN COUNTY, OHIO

THOMAS & MARKER CONSTRUCTION CO.2084 US 68 South, P.O. Box 250Bellefontaine, Ohio 43311

Plaintiff,

vs.

CLARENCE E. HARRIS aka GENE HARRIS209 Miami AvenueBellefontaine, Ohio 43311

and

BARBARA J. HARRIS209 Miami AvenueBellefontaine, Ohio 43311

Defendants.

Case NG.U08050255Judge Mark O'Connor

Complaint for Money Damages

COMPLAINT

1. Plaintiff Thomas & Marker Construction Co. ("Thomas & Marker") is an Ohio

corporation with its principal place of business at the address set forth in the caption of the

Complaint.

2. Defendant Clarence E. Han-is ("Gene") aka Gene Harris has one of his principle

residences at the address set forth in the caption of the Complaint and was, at all times relevant

hereto, an officer, shareholder and/or employee of Hi-Point Crane Service, Inc. ("Hi-Point").

I C EXHIBIT

H i]

3. At all times material hereto, Defendant Barbara J. Harris ("Barbara") was married

to Gene and has one of her principle residences at the address set forth in the caption of the

Complaint.

4. Hi-Point is an Ohio corporation in the business of purchasing various types of

cranes and other related trade equipment in order to rent the aforementioned equipment to its

customers and/or refurbish and resell same at a profit.

5. Approximately ten years ago, Thomas & Marker and Hi-Point entered into a

verbal month-to-month tenancy (the "Lease") for the lease of certain real estate owned by

Thomas & Marker and located at 310 Water Avenue, Bellefontaine, Ohio 43311 (the

"Premises").

6. Over the span of several years, Thomas &. Marker loaned monies to Hi-Point in

order to facilitate the purchase of certain trade equipment. Each time Thomas & Marker loaned

money to Hi-Point, Hi-Point granted Thomas & Marker a Security Agreement relative to the

specific equipment, together with a Demand Promissory Note (collectively referred to as the

"Promissory Notes").

7. In the spring of 2006, Hi-Point experienced increased difficulty in satisfying and

staying current on its numerous obligations to various creditors, including Thomas & Marker.

Specifically, Hi-Point failed to meet its obligations to pay amounts due and owing, on demand,

under the Promissory Notes and the Lease.

8. Hi-Point's financial situation continued to deteriorate througllout the summer and

into the fall of 2006 as it was increasingly unable to pay its taxes and bills as they normally

became due and its liabilities exceeded its assets.

2

9. In or about September or October of 2006, Gene began doing business as United

Crane and Equipment Sales ("United Crane")' in order to usurp Hi-Point's business

opportunities while utilizing its equipment, employees, accounts and commercial facilities

without paying Hi-Point any or insufficient consideration for same.

10. From September or October of 2006 until August of 2007, Gene used Hi-Point's

facility located on the Premises in fiutherance of United Crane's operations and to the exclusion

and detriment of Hi-Point without paying any rent to Hi-Point despite it detnanding same.

11. The fair market rental value of the Premises is $800 a month based upon the

amount of Hi-Point's monthly rent owed to Thomas & Marker which remained unpaid from

April 15, 2006 until Hi-Point's eviction in August of 2007 by Thonias & Marker.

12. Upon the eviction of Hi-Point from the Premises in August of 2007, Gene

transferred United Crane's operations to Hi-Point's storage facility located on 336 Water

Avenue, Bellefontaine, Ohio, 43311 (the "Storage Facility") from which he contin.ued to operate

United Crane until October of 2007 without paying any rent to Hi-Point despite it demanding

same.

13. The fair market rental.value of the Storage Facility is $500 a month based on the

amount of Hi-Point's monthly rent which remained unpaid during the entirety of United Crane's

possession of the Storage Facility.

14. From September or October of 2006 until October of 2007, Gene usurped Hi-

Point's business opportunities and profits for his own personal gain by purchasing approximately

10 separate cranes which were refurbished using Hi-Point's facilities, supplies, utilities,

1 United Crane and Equipment Sales was formed as an Obio limited liability coinpany on or about Noventber 2.2007.

3

equipment and employees for resale by United Crane at an estimated profit of $15,000.00 to

$40,000.00 per crane.

15. Gene used Hi-Point's accounts with various suppliers and creditors to purchase

miscellaneous items and equipment for use in his operations as United Crane for which Gene has

refused to reimburse Hi-Point in the atnount of $2,056.00.

16. In addition to operating out of Hi-Point's facilities, Gene obtained the benefit of

Hi-Point's utiliries and used various equipment and supplies including oxygen, welding tools,

sand paper, filters, grease, oil and other itenrs resulting in Hi-Point incurring expense in the

approximate amount of $1,500.00 a nionth during United Crane's possession of the Premises and

Storage Facility for wliich it has not received any compensation despite Hi-Point demanding

same.

17. During the foregoing time periods, Gene usurped Hi-Point's employees by hiring

these individuals to work as einployees for United Crane and, upon information and belief,

subjected Hi-Point to potential legal exposure by failing to: (1) withhold taxes from these

employees' payroll; (2) contribute toward these employees' payroll taxes (FICA); and (3) pay

any worker's compensation premiums; all in violation of federal and Ohio civil and criminal law.

18. On July 26, 2007, Thomas & Marker filed a Complaint against Hi-Point, Wanda

K. Harris a.k.a. Wanda K. Barker ("Wanda") and Gene for forcible entry and detainer, replevin,

appointment of receiver, and monetary daniages in the amount of $188,310.22 relative to the

Promissory Notes and $13,808.49 relative to the Lease. This action was styled as Thomas &

Marker v. Hi-Point Crane Service Inc. and assigned Case No. CV-07-07-0350 in the Logan

County Court of Common Pleas (referred to herein as the "First Lawsuit").

4

19. Upon information and belief, several days after the receipt of the Complaint in the

First Lawsuit in August of 2007, Gene transferred substantially all of his assets, including those

assets held in the name of United Crane, to Barbara without receiving fair compensation for

same in an attempt to evade the legitimate debts held by his creditors, including Thomas &

Marker.

20. Thomas & Marker dismissed without prejudice its claims against Gene on

December 5, 2007 and dismissed its claims against Hi-Point and Wanda with prejudice on

December 12,2007.

21. In connection with the resolution of the First Lawsuit, Hi-Point and Waiida

assigned to Thomas & Marker all of their rights, remedies and causes of action against Gene

arising out of his above-referenced conduct.

FIRST CAUSE OF ACTION: PIERCING THE CORPORATE VEIL (GENE)

22. Thomas & Marker hereby incorporates all preceding paragraphs as if fully

restated herein.

23. Gene exercised such control and domination over Hi-Point that it had no separate

mind, will or existence of its own.

24. Gene's control of Hi-Point was used to commit fraud and/or illegal acts by

usurping Hi-Point's business opporhuiities/profits and dissipating its assets in an effort to

frustrate Thomas & Marker's attempts to collect upon the Promissory Notes and Lease.

25. As a direct and proximate result of Gene's fraud and illegal acts, Thomas &

Marker incurred damages in the amount of $202,118.71.

SECOND CAUSE OF ACTION: FRAUDULENT TRANSFERS (GENE and BARBARA)

5


restated herein.

27. At all tiines material hereto, Hi-Point was insolvent as defined under the Ohio

Revised Code.

28. At all times material hereto, Gene was insolvent as defined under the Ohio

Revised Code.

29. At all times material hereto, Gene was an "insider" and/or "transferee" as defined

under the Ohio Revised Code.

30. At all times material hereto, Barbara was an "insider" and/or "transferee" as

defined under the Ohio Revised Code.

31. Gene transferred assets or interests in assets in the following manner:

i. With actual intent to hinder, delay, or defraud Thomas & Marker as that

intent may be inferred fi•om the circumstances under the Ohio Revised Code;

and/or

ii. Without receiving a reasonably equivalent value in exchange for the

transfer or obligation, under the circumstances in which Hi- Point or Gene was

engaged or about to engage in a business or transaction for which the remaining

assets of Hi-Point or its directors, officers or insiders were unreasonably small in

relation to the business or transaction, or Hi-Point or Gene intended to incur, or

believed or reasonably should have believed that they would incur debts beyond

their ability to pay as they became due.

32. Thomas & Marker is entitled to damages in the amount of $202,118.71 in

6

comiection with the fraudulent transfers, together with punitive damages and attorney fees

associated therewith.

TIIIRD CAUSE OF ACTION: FRAUD (GENE)


restated hereiii.

34. From May, 2006 until July, 2007, Gene made repeated verbal and written

representations to Thomas & Markers' representatives, including without limitation its president,

Randy Marker, that Hi-Point would satisfy its obligations under the Lease and Promissory Notes

if it was allowed additional time in which to pay off its debts.

35. Gene made the forgoing representations even though he had already formed a new

competing business venture in order to use and deplete Hi-Point's assets and operate out of

Thomas & Marker's facility while usurping Hi-Point's business opportunities and profits for his

personal gain.

36. Thomas & Marker reasonably relied upon the aforementioned representations by

delaying the commencement of legal collection efforts relative to the amounts due under the

Lease and Promissory Notes.

37. Thomas & Marker's relied upon the aforementioned representations to its

detriment as Gene continued to usurp Hi-Point's business opportunities/profits and use the leased

Premises and Hi-Point's equipment, enrployees, accomits, and supplies in furtherance of a

competing business during the requested teniporary abeyance of collection efforts.

38. The aforementioned representations were made with malice and knowledge of

their falsity, or with such utter disregard and recklessness as to whether they were true or false,

that knowledge may be inferred.

7

39. Thomas & Marker incurred daniages in the amount of $202,118.71 as a direct and

proximate result of Gene's fraud and is entitled to the recovery of its attoiaey fees and punitive

damages.

FOURTH CAUSE OF ACTION: UNJUST ENRICHMENT (GENE: PURSUANT TOASSIGNMENT)


restated herein.

41. Gene usurped IIi-Point's business opporhznities/profits and utilized I-Ii-Point's

facilities, equipment, employees, accounts, and supplies in furtherance of a competing business

for his own personal gain and to the detriment of Hi-Point.

42. Gene derived substantial benefit from the transactions alluded to in the previous

paragraph in an amount in excess of $313,056.00.

43. Gene failed to compensate Hi-Point for the benefit received.

44. It would be unjust for Gene to retain the above referenced benefit under the

circumstances entitling Thomas & Marker to the recovery of $313,056.00.

FIFTH CAUSE OF ACTION: BREACH OF FIDUCIARY DUTIES/DUTYOFLOYALTY AND GOOD FAITH (GENE: PURSUANT TO ASSIGNMENT)

45. Thomas & Marker hereby uicorporates all preceding paragraphs as if fully

restated herein.

46. At all times relevant hereto, Gene was an employee, officer and/or shareholder of

Hi-Point.

47. Gene owed Hi-Point and Wanda a duty to act. in their best interests and in good

faith with loyalty.

8

48. Gene breached his fiduciary duties, duties of good faith and loyalty and engaged

in self-dealing by starting a competing business venture in order to usurp Hi-Point's business

opportunities and profits while utilizing its equipment, employees, accounts and connnercial

facilities without paying compensation for same.

49. Thomas & Marker is entitled to damages in excess of $313,056.00 as a direct and

proximate result of Gene's breach of faduciaiy duties and duty of good faith and loyalty.

SIXTH CAUSE OF ACTION: CONVERSION (GENE: PURSUANT TO ASSIGNMENT)

50. Thomas & Marker hereby incorporates all preceding paragraphs as if firlly

restated herein.

51. Gene converted and used Hi-Point's business opportunities/profits, facilities,

equipment, employees, accounts, and supplies without paying consideration and in a manner

inconsistent with Hi-Point's ownership and control of the aforementioned assets.

52. Thomas & Marker is entitled to damages in excess of $313,056.00 as a direct and

proximate result of Gene's conversion of assets.

DEMAND FOR JUDGMENT

WHEREFORE, Thomas & Marker demands judgment as follows:

A Monetary damages against Gene and Barbara in the amount of $202,118.17 in

connection with the breach of the month-to-month tenancy for the Premises and breach of

the Promissory Notes relative to the trade equipment;

B. Monetary damages against Gene in an amount in excess of $313,056.00 pursuant

to Wanda and Hi-Point's assigmnent of claims to Thomas & Marker;

and

C. Reasonable attorney fees pursuant to statute and the plain language of the Promissory

Notes and related security agreements; punitive damages in the amount of $50,000.00,

together with reasonable attQmey fees; pre and post judgment interest at the prevailing

9

statutory rate, as well as all costs; and all other legal and equitable relief to which

Thomas & Marker is entitled.

Respectfully subinitted,

THOMPSPffiLDUNLAP & HEYDINGER, LTD.e/ FI _tg n

By: l9 .Terrence G. Stolly (#0073266)7olui D. Bodin (#0076356)1111 Rush Ave., P.O. Box 68Bellefontaine, OH 43311-0068Telephone: (937) 593-6065Facsimile: (937) 593-9978E-Mail: [email protected]: [email protected]

ATTORNEYS FOR PLAINTIFF

10

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