Fill and Sign the 102611 by the Vicksburg Post Issuu Form

IN ThE CIRCUIT COURT OF RANKIN COUNTY, MISSISSIPPI THOMAS G. TULLOS PLAINTIFF VS. CAUSE NO. ______________ DAVID W. JACKSON, Individually, and DAVID W. JACKSON D.B.A. PREMIER LAWN SERVICES DEFENDANT COMPLAINT COMES NOW Plaintiff Thomas G. Tullos, by and through counsel, and files this Complaint against Defendant, David W. Jackson, individually and against David W. Jackson D.B.A. Premier Lawn Services, and, in support hereof, states as follows: PARTIES 1. Plaintiff Thomas G. Tullos is an adult resident citizen of Rankin County, Mississippi. 2. Defendant David W. Jackson is an adult resident citizen of Rankin County, Mississippi who may be served with service of process by this Court at the following address: 110 Hunters Oak Place, Brandon, MS 39042. RELEVANT FACTS 3. Some time prior to November 19, 1993, Defendant David W. Jackson began doing business as Premier Lawn Services and engaged in the lawn maintenance business for commercial and residential clients. 4. During the same approximate time frame, Plaintiff Thomas G. Tullos was engaged in the operation of a lawn maintenance and landscaping business commonly known as Tullos Landscaping and Maintenance Service. 5. On or about November 19, 1993, the Mississippi Secretary of State accepted Articles of Incorporation for Premier Lawn Services, Inc. ("Premier"). Premier's officers were as follows: Robert D. Smith, President/Secretary and David W. Jackson, Vice President/Treasurer. In addition, Premier's registered agent was David Smith who utilized the following address in his capacity as registered agent: 204 Azalea Court, Brandon, MS 39042.6. On or about October 6, 1994, Robert B. Smith, President/Secretary of Premier, withdrew from the corporation. However, on October 6, 1994, a Bill of Sale was executed between David W. Jackson ("Jackson") and Thomas G. Tullos ("Tullos") which effectively transferred to Tullos the one-half (½) interest in Premier formerly owned by Robert B. Smith. Tullos transferred to Jackson, Vice President of Premier, the sum of $7,500.00 for this one-half (½) interest in Premier. A true and correct copy of the Bill of Sale is attached hereto as Composite Exhibit "A". 7. In return for Tullos' capital contribution, Jackson represented to Tullos that Premier would immediately issue an appropriate amount of Premier common stock to Tullos in order that Tullos' $7,500.00 investment would be officially recognized in Premier's corporate records. Jackson refused/failed to issue any Premier common stock to Tullos even though Tullos made numerous demands on Jackson to do so. 8. In addition to the cash involved in the purchase of the interest of Premier, Tullos also agreed to merge his existing lawn and landscape business with Premier. To effectuate such agreement, Tullos brought his clients, equipment and goodwill into the corporation and allowed Jackson, as a principal of Premier, a one-half (½) interest in all of the clients, assets, equipment, accounts and goodwill Tullos brought into the corporation. Jackson, at all times pertinent hereto, shared in the income generated from the Tullos' business. Jackson, in return for Tullos' actions, agreed to cause a cash payment of $12,500.00 to be made to Tullos. As with the corporate stock, Jackson failed/refused to make any payments toward the $12,500.00 owing to Tullos although Jackson, as a principal of Premier, accepted, used and exercised general control over the customer list and all the assets Tullos placed at Jackson's disposal. 9. Although Tullos operated in good faith by honoring all written and oral agreements with Jackson, Jackson successfully created and operated a scheme whereby Jackson represented that Premier would take the above described actions regarding Tullos' business interests when no such actions were ever contemplated by Jackson or authorized by Premier. Actually Jackson, as the only remaining principal of Premier, failed to maintain any corporate formalities as required by law including but not limited to the failure to file annual franchise taxes, maintain corporate minutes and the failure to execute any corporate resolutions giving Jackson the power to buy and sell assets on behalf of Premier or to enter into contracts on its behalf. Furthermore, Jackson was responsible for withholding employee taxes which directly created a tax liability in the approximate amount of $8,000.00 for Premier and, in addition, Jackson established separate bank accounts other than that maintained by Premier in which Jackson placed corporate and/or partnership funds which were never accounted to Tullos although Tullos owned a one-half (½) interest in the assets of Premier.10. On July 3, 1995, Jackson communicated with Tullos and defined their prior business relations as those relative to a general partnership, not a corporation. Furthermore, Jackson declared the partnership to be dissolved and that he would continue the lawn maintenance business as "David W. Jackson D.B.A. Premier Lawn Services" without the assistance of Tullos. 11. Jackson's fraudulent conduct forced Tullos to withdraw from his association with Jackson/Premier and, on July 26, 1995, demanded by and through his attorney that he be repaid his initial investment of $7,500.00, together with a share of the profits, receivables, and other corporate assets existing at the time of his withdrawal. In addition, certain equipment, accounts and goodwill for which Tullos was to be compensated in the amount of $12,500.00 remained with Jackson/Premier and, accordingly, Tullos requested payment of reasonable compensation based on the influx of clients, assets and equipment to Jackson, as a principal of Premier. Jackson failed and/or refused to meet any of Tullos' demands. 12. On or about November 17, 1995, the Mississippi Secretary of State administratively dissolved Premier Lawn Services, Inc. and on this date, Jackson was the only principal holding any position and/or title with Premier. 13. To date, Jackson has failed/refused to honor any and all contracts/agreements with Tullos, failed and/or refused to repay any sums demanded by Tullos and has failed and/or refused to return any equipment rightfully owned by Tullos subsequent to the upon the dissolution of Premier and/or any alleged general partnership. COUNT I BREACH OF CONTRACT 14. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-13 of this Complaint. 15. The above and foregoing actions of Defendant David W. Jackson give rise to a cause of action for breach of contract as Jackson breached his contract with Tullos by failing to issue to Tullos corporate stock in Premier to officially reflect Tullos' capital contribution to Premier. In addition, Jackson breached his oral contract with Tullos by accepting a one-half (½) interest in Tullos' equipment, accounts, customer lists, etc. without the commensurate payment of $12,500.00 to Tullos as due and owing under their contract. 16. All of the foregoing conduct constitutes a breach of contract which has resulted in damages to Tullos. COUNT II BREACH OF GOOD FAITH AND FAIR DEALING 17 Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-16 of this Complaint. 18. The above and foregoing actions of Defendant David W. Jackson give rise to a cause of action for breach of fiduciary duty, good faith and fair dealing as Jackson was principal of Premier and/or was a general partner with Plaintiff in a lawn and landscaping business. 19. Jackson has intentionally breached all contracts with Tullos and in so doing evidenced an intent never to have honored his agreements with Tullos in spite of direct, affirmative, representations to Tullos that those agreements should be honored, all of which has resulted in damage to Tullos. COUNT III TORTIOUS INTERFERENCE 20. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-19 of this Complaint. 21. The above and foregoing actions of Defendant David W. Jackson give rise to a cause of action for tortious interference with prospective business relations and/or tortious interference with contract as Jackson intentionally misrepresented his relationship with Tullos in order to gain an interest in Tullos' customer list, Tullos' equipment, accounts and inventory. All of the foregoing has specifically caused Tullos damage, including but not limited to, monetary damages in an amount not less than $20,000.00. 22. Jackson has misappropriated and converted Tullos' clients, physical assets and funds and in so doing interfered with Tullos' ability to serve clients generated, maintained and serviced by Tullos prior to his association with Jackson. COUNT IVFRAUD 23. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-22 of this Complaint. 24. The above and foregoing actions of Defendant David W. Jackson gives rise to a cause of action for fraud due to the knowing and intentional misrepresentations made by Jackson to Tullos regarding the issuance of Premier corporate stock and also regarding Jackson's misrepresentations concerning the $12,500.00 payment for Jackson's interest in Tullos' equipment in the following particulars: (a) On or about October 6, 1994, Tullos was offered an interest in a business represented by Jackson to be a Mississippi corporation; (b) On or about October 6, 1994, Tullos was told that he would be issued stock in the corporation; (c) On or about October 6, 1994, Tullos was induced to pay $7,500.00 based on an affirmative representation that the payment would cause the purchase of assets and issuance of stock of the company to Tullos; (d) On or about October 6, 1994, Tullos was promised that Premier Lawn Services, Inc. would purchase one-half (1/2) of the assets of Tullos Landscaping for $12,500.00; (e) All of the foregoing representations were made by Jackson to induce Tullos to furnish $7,500.00 in cash, physical assets, client list, good will and all other assets of Tullos' business;(f) All of the foregoing affirmative representations caused Tullos to share one-half (1/2) of all profits and were generated by Tullos Landscaping business with Jackson; (g) At the time of the foregoing affirmative representations, Jackson had no intention of meeting his obligations to Tullos; (h) At the time of affirmative representations, Jackson misrepresented the corporate status of Premier and Premier's value as a going concern and /or Premier's ability to issue stock; (i) All of the foregoing representations were for the sole purpose of enticing Tullos to transfer his interest in cash and other assets to Jackson; and (j) All of the foregoing representations constitute fraud and have resulted in damages to Tullos. COUNT V CONVERSION 25. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-24 of this Complaint. 26. The above and foregoing actions of Defendant David W. Jackson give rise to a cause of action for conversion of Tullos' ownership interests regarding the subject equipment, accounts and related monetary proceeds as Jackson forced Tullos out of his association with Premier and/or the general partnership and caused such business organizations to be dissolved without any payment and/or return of equipment to Tullos and as Jackson retained such proceeds and equipment irrespective of Tullos' one-half (½) interest in such assets. 27. Jackson has continued to use assets, equipment, capital and goodwill of Tullos to generate income to himself, having appropriated these assets to his own use and benefit. Tullos is entitled to an award of one-half (1/2) of the income generated by Jackson since Tullos was forced from the business association, plus an award of punitive damages and attorney's fees. COUNT VI 28. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-27 of this Complaint. 29. The above and foregoing actions of Defendant David W. Jackson give Tullos the remedy of 'accounting" against Jackson for the converted proceeds and/or equipment by Jackson individually and/or David W. Jackson D.B.A. Premier Lawn Services. COUNT VII 30. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-29 of this Complaint. 31. The above and foregoing actions of Defendant David W. Jackson constitute a violation of the Mississippi Uniform Trade Secrets Act, Miss. Code Ann. Sec. 75-26-1, et seq., as Jackson's misrepresentations were calculated to and did cause Tullos to disclose to Jackson a customer list which was not generally known to the public or ascertainable by proper means and because said list derives independent economic value in the marketplace. 32. The violation of the Mississippi Uniform Trade Secrets Act has resulted in damages to Tullos. COUNT VIII 33. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-32 of this Complaint. 34. In the alternative, the above and foregoing actions of Defendant David W. Jackson justify this Court's order that Tullos has all rights and remedies defined in Miss. Code Ann. Sec. 79-12-79 as Tullos was forced out of the partnership with Jackson due to Jackson's fraud and misrepresentations. COUNT IX 35. Plaintiff Tullos adopts, realleges and incorporates his allegations set forth in Paragraphs 1-34 of this Complaint. 36. The above and foregoing actions of Defendant David W. Jackson constitute an independent tort justifying the imposition of exemplary and/or punitive damages. 37. David W. Jackson should be adjudged liable to Tullos for exemplary and/or punitive damages in an amount to be set at the trial of this cause but believed not to be less than $50,000.00. WHEREFORE, PREMISES CONSIDERED, Plaintiff Thomas G. Tullos demands judgment of, from and against Defendants David W. Jackson, Individually and David W. Jackson d/b/a Premier Lawn Services in the following particulars: A. For monetary damages arising from a breach of contract in an amount to be set at the trial of this cause; B. For an order requiring a $12,500.00 payment plus legal interest running on and after July 1, 1995 arising from Defendants retention of Plaintiff's equipment, inventory, accounts and other additional assets; C. For payment(s) constituting Plaintiff's one-half (1/2) interest in Premier, the general partnership or David W. Jackson d.b.a. Premier Lawn Service regarding any retained and unpaid profits, receivables or other liquidated corporate assets; D. For the return of Plaintiff's $7,500.00 initial investment plus interest in Premier and/or the partnership; E. For an Order requiring the return of the equipment owned by Plaintiff yet retained by Defendants; F. Prejudgment and postjudgment interest, along with attorney's fees to be set by the Court at the trial of this cause; G. For civil damages for Defendants knowing violations of the Mississippi Uniform Trade Secrets Act, Miss. Code Ann. Sec. 75-26-1, et seq.; H. For all rights and remedies offered by law pursuant to Miss. Code Ann. Sec. 79-12-79; I. For additional relief as is justified under the circumstances of this case; J. For an award of punitive and/or exemplary damages to be set at the trial of this cause but believed to be in an amount not less than $50,000.00.Dated, this the ___ day of March, 1996. RESPECTFULLY SUBMITTED, By: _____________________ OF COUNSEL: