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Please E-mail suggested additions, comments and/or corrections to Kent@MoreLaw.Com.

Date: 03-06-2013

Case Style: Beth McDowell v. Brass Brick Home, III, L.L.C.

Case Number: CJ-2011-6912

Judge: Roger H. Stuart

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Jeff A. Taylor

Defendant's Attorney: Rollin Nash and Kristy Kapp for Brass Brick Homes III, L.L.C.

Description: Beth McDowell sued Brass Brick Home, III, L.L.C. on a breach of contract theory:

1.1 This jury action seeks redress for Defendant’s violation of the laws of the State of Oklahoma in connection with the agreed compensation for Plaintiffs employment service with Defendant. As redress for Defendant’s violations, Plaintiff prays for and demands declaratory, equitable and legal relief, compensatory damages, including unpaid incentive and/or commissions, punitive damages, attorney fees and costs in an amount which will be established at the trial of this cause. This Petition specifically sets forth causes of action against Defendant under Oklahoma law for breach of contract, promissory estoppel, fraudulent misrepresentation, and quantum meruit

II. The Parties

2.1 Plaintiff is a resident of Oklahoma County, Oklahoma.

2.2 At all times material to this action, Defendant has continuously been and is a domestic limited liability company duly organized and existing under the laws of the State of Oklahoma. Defendant may be served with this Petition through its registered agent: Joseph Bowie, 2952 Via Esperanza, Edmond, OK 73013. ifi. Jurisdiction and Venue

3.1 This Court has jurisdiction over Plaintiff’s claims and the damages sustained by Plaintiff exceed $10,000.00.

3.2 Venue is appropriate in this district pursuant to 12 O.S. § 134. U/. Background Facts

4.1 On or about June 2009 Plaintiff began to work exclusively for Brass Brick Homes III, LLC for the fill time position of New Home Consultant.

4.2 As a condition of employment Defendant agreed to compensate Plaintiff by commission calculated at an agreed percentage of the contract price of new homes sold by Plaintiff Plaintiffs compensation was 100% commission for which she worked at fill-time.

4.3 Under the terms of her commission agreement, Plaintiff was paid at 2% of the contract price of the home that she sold (after June 2009) or 1.5% of the contract price of a spec home that she sold when an outside realtor was involved and for any home sold prior to June 2009.

4.4 Under the terms of the commission agreement, the commission was earned when the contract was signed by the homebuyers and the commission was paid to Plaintiff at the closing of the homes. Plaintiffs commission was usually an itemized entry on the HUD statement at the closing of homes sold by Plaintiff on behalf of Defendant.

4.5 Plaintiffs contacts and expertise in sales and home building were utilized by Defendant to obtain a sale. Prior to a contract being signed for the construction of a home, Plaintiff spent substantial time and effort with buyers in the selection of amenities, colors, design, layouts, floor plan, roofs, appliances, fixtures, etc. All the selections made by the buyer were contained in the final contract and submitted by Plaintiff to Defendant for construction after execution by the parties.

4.6 Plaintiff’s services performed for Defendant were exclusively sales; she was not involved in the home construction process at all. Further, she was not involved in collections given the nature of the product being sold — payment to Defendant at closing. Defendant was paid at the closing for the sale of the home by Plaintiff on behalf of Defendant. If a home she had sold did not close, Plaintiff did not receive a commission.

4.7 On or about January 2011 Plaintiff resigned her employment with Defendant. Before she left, Plaintiff had advised Defendant that she was available to handle any matters that might arise on the executed contracts she had submitted to Defendant for construction but were not yet completed. Plaintiff further left her contact information with the buyers, if needed.

4.8 Since Plaintiff’s resignation Defendant has failed to provide to Plaintiff all her commissions earned and accrued under her agreement with Defendant.

4.9 Prior to her resignation, Plaintiff had submitted to Defendant four contracts executed by the buyers for the construction of homes as a result of Plaintiff’s successfiul sales efforts. At her resignation, Defendant had not completed construction of the homes nor closed on the homes.

4.10 Based upon information and belief, in March and May 2011 all four homes sold by Plaintiff were constructed by Defendant and went to closing. Defendant has received the contract monies from the buyers but has failed to compensate Plaintiff her commissions as agreed.

4.11 Additionally, three homes that Plaintiff had sold on behalf of Defendant went to closing in 2009. Defendant further has failed to provide to Plaintiff her agreed commission on her successful sales efforts for these homes.

COUNT I: Breach of Contract

5.1 Plaintiff incorporates and realleges, in fill, paragraphs 1.1 through 4.11 of this Petition.

5.2 The failure to provide to and pay to Plaintiff her commissions which are earned and accrued is a breach of contract.

5.3 The damages for such breach of contract is her earned, accrued and unpaid commissions which is a sum in excess of Ten Thousand Dollars ($10,000.00) together with prejudgment interest on such sums through payment, and attorney fees and costs.

COUNT II: Wage Claim

6.1 Plaintiff incorporates and realleges, in full, paragraphs 1.1 through 5.3 of this Petition.

6.2 The failure provide to and pay to Plaintiff her earned, accrued and unpaid commissions is a violation of 40 O.S. § 165.1, 165.3, 165.9, 197.4, 197.9, inter alia.

6.3 The damages for such breach of contract is her earned, accrued and unpaid commissions which is a sum in excess of Ten Thousand Dollars ($10,000.00) together with prejudgment interest on such sums through payment, double (or liquidated) damages equal to that principal sum for such non-payment, prejudgment interest and attorney’s fees.

COUNT Ill: Tortious Breach of Contract

7.1 Plaintiff incorporates and realleges, in fill, paragraphs 1.1 through 6.3 of this Petition.

7.2 The refusal to pay such sums represents an intentional and willful breach of the contract amounting to a tortious breach of contract.

7.3 Defendant’s refusal violated the implied covenants in every contract of good faith and fair dealing.

7.4 Plaintiff has been injured by such breach both in terms of being denied the funds due her, as described in Count I and Count II, but also being injured by suffering worry, anxiety, distress and other like emotions arising from the denial of such just compensation. Plaintiff is entitled compensation for such worry, anxiety, distress and other unpleasant emotions which compensation should exceed Ten Thousand Dollars ($10,000.00).

7.5 Because the actions of the Defendant were willful and intentional or, at the least in reckless disregard of each Plaintiff’s rights, Plaintiff should be awarded punitive damages in the maximum amount allowed by law. Count IV: Promissory Estoppel/Quaiitum Meruit

8.1 Plaintiff incorporates and realleges, in full, paragraphs 1.1 through 7.5 of this Petition.

8.2 Defendant offered to Plaintiff a commission arrangement with the representation to Plaintiff that if she accepted the terms of the compensation agreement, she would receive certain commissions.

8.3 Defendant made these representations with the expectation that such promises would induce Plaintiff to accept the terms of employment and endeavor to sell its products.

8.4 In material reliance upon these representations, Plaintiff did accept the terms of employment and compensation with Defendant and did endeavor to and did engage in sales efforts of Defendant’s products. Plaintiff would not have taken any of these actions but for Defendant’s representations.

8.5 Plaintiff’s successful efforts in the sale of homes resulted in the monies paid to Defendant at the closing which qualified Plaintiff for her commission on these sales as agreed, Defendant received the benefit of her sales in return for revenue generated from Plaintiff’s successful sale of homes.

8.6 Defendant failed to adhere to its representations to Plaintiff by failing and refusing to compensate Plaintiff with commissions earned and accrued.

8.7 As a direct and proximate result of Defendants conduct as described under this Count, Plaintiff has been damaged by the loss of her commissions she should have received if she had been compensated as agreed.

8.8 Defendant has been unjustly enriched through revenue generated by Plaintiff’s sales on behalf of Defendant and its ensuing failure to compensate Plaintiff with commissions on these sales.

PRAYER FOR RELIEF

Plaintiff prays for and demands the following relief:

1. A judgment that Defendant has engaged in all of the conduct alleged in this Petition, and that Defendant has, by engaging in such conduct breached its contract with Plaintiff, violated the wage statutes, committed the claims of promissory estoppel and quantum meruit.

2. A judgment awarding Plaintiff an amount equal to the unpaid and accrued commissions.

3. A judgment awarding Plaintiff such other compensatory damages as may be proven upon the trial of this matter.

4. A judgment awarding Plaintiff punitive damages, in an amount to be determined at trial, to punish and make an example of Defendant under the torts of fraudulent misrepresentation.

5. A judgment for liquidated damages.

6. A judgment awarding Plaintiff an amount equal to the costs of bringing this action, including a reasonable attorney fee.

7. A judgment awarding Plaintiff such other legal and equitable relief as may be appropriate, including prejudgment and postjudgment interest.

Defendant Brass Brick Homes III, LLC appeared and answered as follows:

1). Defendant admits the allegations contained in paragraphs 2.1, 2.2, and 3.2 of the Plaintiff’s Original Petition.

2). Defendant admits the allegations contained in paragraphs 3.1 to the extent this Court has jurisdiction, but denies this Defendant has caused Plaintiff to sustain damages in excess of $10,000.

3). Defendant specifically denies each and every other allegation contained in Plaintiff’s Original Petition, and demands stick proof of the same. For further defenses against Plaintiff’s Original Petition, Defendant asserts the following Affirmative Defenses.

AFFIRMATIVE DEFENSES

4). Accord and Satisfaction;

5). Fraud;

6). Laches;

RESERVATION OF RIGHT TO AMEND TO ADD

ADDITIONAL CLAIMS OR AFFIRMATIVE DEFENSES

Further, Defendant hereby reserves the right to amend its Answer at anytime for purposes of bringing any additional claims, defenses or affirmative defenses to which it may find itself entitled, and for purposes of bringing any counterclaims, cross claims or third party claims in this action.

WHEREFORE Defendant prays that Plaintiff take nothing by way of her Original Petition; Defendant ifirther prays that it be awarded its costs and a reasonable attorney fee for the defense of this action and any further relief to which Defendant may be entitled and which may be deemed just and proper by the Court.

7). Payment 8). Waiver 9). Set off; and 10). Estoppel

Defendant Brass Brick Homes III, LLC counterclaimed and asserted a third-party claim against David Frolich, claiming:

1. Plaintiff Beth McDowell (“McDowell”) is an individual who has already consented to jurisdiction of this Court by virtue of filing this proceeding.

2. Third-Party Defendant David Frolich (“Frolich”) is belie4ed to be a resident of Oklahoma County, State of Oklahoma.

3. Third-Party Defendant Amanda Pack (“Pack”) is a resident of Oklahoma County, State of Oklahoma.

4. Third-Party Defendant Red Door Custom Designs, LLC (“Red Door”) is an Oklahoma limited liability company and is engaging in business in Oklahoma County, State of Oklahoma.

5. Red Door is believed to be owned by Frolich and McDowell. Frolich, McDowell and Pack were at all relevant times the control personnel of Red Door.

6. All of the relevant events, facts and actions which give rise to Brass Brick’s Counterclaims and Third-Party Petition Claims as set forth hereafter, all occurred and took place in Oklahoma County, State of Oklahoma.

7. This Court has jurisdiction over all of the parties hereto, and venue is proper in Oklahoma County, State of Oklahoma.

FACTS

8. Frolich was previously the general and supervising manager of Brass Brick.

9. McDowell was previously the marketing and community manager of Brass Brick.

10. Pack was previously employed as the designer and decoraxor of Brass Brick,

11. Because of their various positions with Brass Brick, Frolich, McDowell and Pack all had unrestricted access to all of Brass Brick’s books, records, Irade secrets, confidential information, customer lists, plans, vendor lists, etc.

12. On or about January 7, 2011, Frolich, McDowell and Pack advised Brass Brick that they were all then resigning their respective positions with Brass Brick (“Resignation Date”).

13. As more fully set forth hereafter, prior to the Resignation Date, Frolich, McDowell and Pack collectively, or individually, engaged in certain conduct and actions which such conduct and action was and is tortious in nature, constitutes bad ihith and was fraudulent conduct. Such actions and conduct was taken by Frolich, Pack and McDowell for the purpose of their individual and collective profit and benefit, all to the detriment and loss of Brass Brick.

FIRST CAUSE OF ACTION for Conversion (as against David Frolich. Beth McDowell, Amanda Pack and Red Door Custom Designs. LLC)

COMES NOW Brass Brick and for its First Cause of Action against rolich, Pack and McDowell (sometimes hereafter collectively “Insiders”) and Red Dooi, alleges and states as follows:

14. To the extent relevant, Brass Brick re-alleges, readopts and incorporates by reference all of its statements and allegations contained above, the same as if set forth fully herein.

15. Sometime on or before the Resignation Date, for the benefit of Red Door and the Insiders, McDowell stole a certain computer owned by Brass Brick Red Door and the Insiders are using said computer and all of its data stored thereon for the use and benefit of the Insiders and Red Door.

16. The subject computer which was stolen by McDowell and hich is now being used by Red Door and the Insiders, contains significant confidential and sensitive data and information belonging exclusively to Brass Brick.

17. The Insiders and Red Door have been using the subject computer and all of the content and data stored thereon without Brass Brick’s knowledge or consent, all to the Insiders and Red Door’s benefit and profit, and to Brass Brick’s loss and detriment.

18. Brass Brick is the owner of countless plans, specifications, drawings, etc., regarding residential homes (“Plans”).

19. Sometime on or before the Resignation Date, for the benefit of Red Door and the Insiders, Pack stole the Plans and certain software commonly known as Automatic Computer Assisted Design (“Auto CAD”) owned by Brass Brick and is using said Plans and Auto CAD software for the use and benefit of the Insiders and Red Door.

20. The Plans and Auto CAD software which were stolen by Pack and which are now being used by Red Door and the Insiders contains countless Plans, as well as significant confidential and sensitive data and information belonging exclush ely to Brass Brick.

21. The Insiders and Red Door have been using the Plans and thc Auto CAD software without Brass Brick’s knowledge or consent, all to the Insiders and Red Door’s benefit and profit, and to Brass Brick’s loss and detriment.

22, The Insiders and Red Door are in possession of the computer, Plans, and Auto CAD and are preventing Brass Brick from having access to said property.

23. As a result of the Insiders and Red Door’s theft, conversion ar1d use of the computer, the Plans and the Auto CAD software, Brass Brick has sustained, and continues to sustain, substantial losses and damages, in an amount ir excess of $10,000.00.

WHEREFORE, premises considered, Brass Brick prays that it have md recover judgment against the Insiders and Red Door, jointly and severally, as set forth hereafter in Brass Brick’s Combined Prayer for Relief (as against David Frolich. Beth McDowell, Amanda Pack and Red Door Custom Designs, LLC)

SECOND CAUSE OF ACTION for Declaratory Judgment


COMES NOW Brass Brick and for its Second Cause of Action against the Insiders and Red Door, alleges and states as follows:

24. To the extent relevant, Brass Brick re-alleges, readopts and incorporates by reference all of its statements and allegations contained above, the same as if set forth fully herein.

25. The subject computer, Plans and Auto CAD software were ad stolen for the Insiders’ personal use and benefit and the benefit of Red Door, all without the consent or approval of Brass Brick.

26. Brass Brick is the sole and exclusive owner of the subject computer, Plans and Auto CAD software.

27. This Honorable Court should issue a declaratory judgmcnt thereby declaring Brass Brick to be the sole and exclusive owner of the subject computer, Plans and Auto CAD software.

28. Without this Honorable Court’s declaratory judgment confirming that Brass Brick is the sole owner of the subject computer, Plans, and Auto CAD software, Brass Brick will continue to suffer losses and damages.

29. Brass Brick has no other adequate remedy at law available to it to determine ownership of the subject computer, Plans, and Auto CAD software, and therefore seeks this Court’s order declaring Brass Brick to be the sole owner of such personal property. WHEREFORE, premises considered, Brass Brick requests that it Ix awarded a declaratory judgment against the Insiders and Red Door as set forth hereafter in Brass Brick’s Combined Prayer for Relief

THIRD CAUSE OF ACTION for Injunction

(as against David Frolich, Beth McDowell, Amanda Pack and Red Door Custom Designs, LLC)


COMES NOW Brass Brick and for its Third Cause of Action against [nsiders and Red Door, alleges and states as follows:

30, To the extent relevant, Brass Brick re-alleges, readopts and Lncorporates by reference all of its statements and allegations contained above, the same as if set forth fully herein.

31. The Insiders and Red Door are wrongfully using the subject computer, all data and information stored thereon, and are wrongfully using the Plans and the Auto CAD software, all without Brass Brick’s consent or authority, all to the Insiders and Red Door’s use and benefit, all to the loss and detriment of Brass Brick. If the Insiders and Red Door are not prohibited, restrained and enjoined from using the subject computer, the data and information stored thereon, the Plans and the Auto CAD sofi ware, Brass Brick will suffer and continue to suffer significant losses and damages.

32. This Honorable Court should issue its order temporarily and oermanently restraining, prohibiting and enjoining the Insiders and Red Door from using the computer and any information or data stored thereon, and from using the Plans and the Auto CAD software.

33. Further, the Insiders and Red Door should be ordered to immediately return the subject computer intact, with all data stored thereon, and also be ordered to deliver to Brass Brick any and all copies, reproductions, duplications, etc., that may exist, all to result in the Insiders and Red Door no longer having any copies of any nature or description, including all digitally stored data which the Insiders and/or Red Door could access, use, utilize or refer to.

34. Brass Brick will likely succeed on the merits regarding the Insiders’ and Red Door’s wrongful use of the computer, all data stored thereon, the Plans, and the Auto CAD software without Brass Brick’s consent or authority, as set forth herein.

35. Brass Brick will suffer more from the Insiders’ and Red Dooi ‘s continued use of the computer and all data stored thereon, the Plans and the Auto CAD software than the Insiders and Red Door will suffer from the prohibition. The stolen computer, Plans, and Auto CAD software contain confidential and sensitive data and information belonging exclusively to Brass Brick and without said property, Brass Brick will continue to sustain substantial losses and damages.

36. The issuance of a temporary and permanent injunction wilL not violate public policy.

WHEREFORE, premises considered, Brass Brick prays that it have and recover judgment against the Insiders and Red Door as set forth hereafter in Brass Brick’s Combined Prayer for Relief.


FOURTH CAUSE OF ACTION

for Tortious Interference with Business Relations (as against David Frolich, Beth McDowell and Amanda Pack)

COMES NOW Brass Brick and for its Fourth Cause of Action against Insiders, alleges and states as follows:

37. To the extent relevant, Brass Brick re-alleges, readopts and :ncorporates by reference all of its statements and allegations contained above, the same as if set forth thily herein,

38. Prior to the Resignation Date, the Insiders engaged in certain actions and conduct designed to encourage then existing customers and/or prospective customers of Brass Brick to not utilize Brass Brick for the purpose of constructing a residential home for such customers and/or prospective customers, and in lieu thereof, to use Fed Door for the construction of such customers and prospective customers’ residential home purchase. These actions and conduct were done in bad faith and were for the purpose of benefitting Insiders and Red Door, to the loss and detriment of Brass Brick.

39. The acts and actions taken by the Insiders in their collective attempt to convince customers and prospective customers of Brass Brick to utilize the services of Red Door or other entities for which the Insiders were then associated, all occurred while said Insiders were then still employed with and/or being compensated by Brass Brick.

40. By virtue of the Insiders’ bad faith and actions, whether co ilectively or individually, to intentionally attempt to divert customers and/or prospective customers from Brass Brick to other entities that the Insiders were then associated, all when then still being employed by and/or regularly compensated by Brass Brick, constitutes a tortious interference of business relations which Brass Brick then had or should have had with customers and/or prospective customers.

41. The Insiders, and the entities that the Insiders were then associated with, have benefitted from the Insiders’ actions in interfering with Brass Brick’s relationships with its customers and prospective customers, all to Brass Brick’s detriment and loss.

42. Because of the Insiders’ interference with Brass Brick and its relationships with its customers and prospective customers, Brass Brick has incurred losses in excess of $10,000.00.

WHEREFORE, premises considered, Brass Brick prays that it have and recover judgment against the Insiders, jointly and severally, as set forth hereafter in Brass Brick’s Combined Prayer for Relief

FIFTH CAUSE OF ACTION

for Usurpation of Corporate Opportunities

(as against David Frolich, Beth McDowell, Amanda Pack and Red Door Custom Designs, LLC)

COMES NOW Brass Brick and for its Fifth Cause of Action against insiders and Red Door, alleges and states as follows:

43. To the extent relevant, Brass Brick re-alleges, readopts and ncorporates by reference all of its statements and allegations contained above, the same as if set forth fully herein.

44. By virtue of the Insiders’ acts, actions and course of conduct prior to the Resignation Date as set forth above, the Insiders’ individually and collecuively made efforts to exploit Brass Brick and usurp Brass Brick’s business opportunities by:

a. stealing the computer with all of Brass Brick’s confidential mid sensitive information contained thereon; and

b. stealing the Plans owned by Brass Brick; and

c. stealing the Auto CAD software; and

d. using the computer, and all of the data stored thereon, the Plans, and Auto CAD software for the benefit of Insiders; and

e. engaging in acts and conduct designed to convince or persuade customers and/or prospective customers of Brass Brick to not use Brass Brick, but rather in the alternative, to use entities that the Insiders were then associated with.

45. At all relevant times, Insiders were acting in their official capacities as employees andior representatives of Brass Brick when usurping Brass BricK’s business opportunities.

46. The actions and conduct of the Insiders to usurp the business üpportunities of Brass Brick were taken by the Insiders in an effort to benefit the Insiden, Red Door, and other entities with whom the Insiders were then associated, all to the loss and detriment of Brass Brick.

47. Red Door is owned and controlled by the Insiders, and has accepted the benefits of Insiders’ wrongful actions, all to the loss and detriment of Brass Brick.

48. Without the wrongful actions of the Insiders, Brass Brick woud have been fully able to take advantage of the business opportunities usurped by Insiders,

49. As a result of the Insiders’ wrongfhl acts and conduct as set forth above, the Insiders and Red Door have usurped the business opportunities that Brass Brick then enjoyed, or would have enjoyed, and profited from, if not for the wrongful conduct and actions taken by the Insiders.

50. As a consequence of the Insiders’ and Red Door’s wrongful actions as set forth above, Brass Brick has incurred losses in excess of$1O,000.O0.

WHEREFORE, premises considered, Brass Brick prays that it have and recover judgment against the Insiders and Red Door, jointly and severally, as set forth hereafter in Brass Brick’s Combined Prayer for Relief.

SIXTH CAUSE OF ACTION For Bad Faith

(as against David Frolich, Beth McDowell, Amanda Pack and Red Door Custom Designs, LLC)

COMES NOW Brass Brick and for its Sixth Cause of Action against insiders and Red Door, alleges and states as follows:

51. To the extent relevant, Brass Brick re-alleges, readopts and rncorporates by reference all of its statements and allegations contained above, the same a.; if set forth flilly herein.

52. The acts and actions of the Insiders in using the stolen computer and all data and information stored thereon, the Plans owned by Brass Brick, and the Auto CAD software, all of which have been, and are being used by the Insiders and Red Door for the Insiders and Red Door’s profit and benefit, all to Brass Brick’s detrimeHt and loss, demonstrates that the Insiders have engaged and are engaging in bad faith.

53. The Insiders began their wrongful acts and actions as set forth above, prior to the Resignation Date, and while Insiders were then still employed and/or being regularly compensated by Brass Brick. Such actions and conduct by the Insiders while then still employed by and/or being regularly compensated by Brass Brick demonstrates bad faith by each of the Insiders.

54. Red Door is controlled by the Insiders, and is an instrumencality of the Insiders.

55. Red Door has accepted the use and benefit of the confidential and sensitive information contained on the stolen computer, as well as using the stolen Plans and Auto CAD software to further Red Door’s business, all of which constitutes bad faith on behalf of the Insiders and Red Door.

56. As a result of the Insiders and Red Doors’ acts and conduct as set forth above, the Insiders and Red Door have benefitted from their wrongful acts, ail to the loss and detriment of Brass Brick.

57. By reason of the Insiders’ actions and conduct which constitutes bad faith, Brass Brick has incurred losses and damages in excess of $10,000.00. WHEREFORE, premises considered, Brass Brick prays that it have and recover judgment against the Insiders and Red Door, jointly and severally, as set forth hereafter in Brass Brick’s Combined Prayer for Relief.

SEVENTH CAUSE OF ACTION for Fraud

(as against David Frolich only)

COMES NOW Brass Brick and for its Seventh Cause of Action against Frolich, only, alleges and states as follows:

58. To the extent relevant, Brass Brick re-alleges, readopts and incorporates by reference all of its statements and allegations contained above, the same as if set forth fully herein.

59. Prior to the Resignation Date, Frolich enjoyed a special position of trust within Brass Brick in Frolich’s capacity as Brass Brick’s general and supervising manager. As Brass Brick’s general and supervising manager, Frolich was ji the trusted position of having great input into the payment of bills and expenses incurred by Brass Brick, and Frolich controlled the day-to-day management of Brass Brick, and in general was able to control and manipulate much of Brass Brick’s books and records.

60. Since the Resignation Date, Brass Brick has discovered that prior to his resignation, Frolich engaged in numerous activities, acts and conduct which were designed to personally benefit Frolich, all to the loss and detriment of Brass Brick.

61. The wrongful acts, actions and conduct by Frolich in hs efforts to personally benefit, at a loss to Brass Brick, included deception, deceit and fraud, Those actions specifically include, but are not limited to the following:

a. Caused numerous fraudulent invoices from various vendors to be billed to Brass Brick for goods, work, materials and services that personally beneiitted Frolich andlor his family members, all to the loss and detriment of Brass Brick;

b. Opened a certain bank account(s) in order to negotiate, deposit and then used the proceeds from checks made payable to Brass Brick, all for Frolich’s personal benefit, and all to the loss and detriment of Brass Brick;

c. Caused numerous invoices to be issued to Brass Brick by various vendors, suppliers, materialmen, or otherwise for construction projects that Brass Brick was not involved with, but which such projects Frolich was involved with and/or had an expectation of financial gain, all to the loss and detriment of Brass Brick;

d. Deleted transactions and entries entered into Brass Brick’s accounting software in furtherance of Frolich’s efforts to defraud Brass Brick, all o Frolich’s personal gain and benefit, and all to the loss and detriment of Brass Brick;

e. Converted and/or embezzled at least one “down payment” check made payable to Brass Brick for Frolich’s own personal use and benefit, all to Brass Brick’s detriment and loss;

f. Converted and/or embezzled tenant lease payments intended for Brass Brick, all for Frolich’s personal gain and benefit, and all to the loss and detriment of Brass Brick; and

g. Converted or stole personal property belonging to Brass Brick, all to Frolich’s personal gain and benefit, all to Brass Brick’s detriment and loss; and

h. Used confidential information and data belonging exclusively to Brass Brick to further his efforts to defraud Brass Brick, all for Frolich’s personal gain and benefit, all to Brass Brick’s loss and detriment.

62. As such, Frolich has personally and significantly benefitted fr)m Frolich’s wrongful and fraudulent conduct, all to the loss and detriment of Brass Buck, all with respect to the wrongful actions, acts and conduct set forth above.

63. The acts, actions and conduct taken by Frolich as described above are not exclusive, but rather are a listing of the wrongful conduct, acts and actions that Brass Brick has discovered thus far. Brass Brick reserves the right to supplement the above list of acts, actions and conduct taken by Frolich as discovery reveals.

64. As a result of Frolich’s fraudulent acts, actions and conduci as set forth above, Brass Brick has sustained and incurred damages in excess of $10,000.00.

WHEREFORE, premises considered, Brass Brick prays that it have and recover judgment against Frolich as set forth hereaflcr in Brass Brick’s Combined Prayer for Relief.

EIGHTH CAUSE OF ACTION for Punitive/Exemplary Damages

(as against David Frolich only

COMES NOW Brass Brick and for its Eighth Cause of Action against Frolich, only, alleges and states as follows:

65. To the extent relevant, Brass Brick re-alleges, readopts and incorporates by reference all of its statements and allegations contained above, the same as if set forth fully herein.

66. The acts, actions and conduct engaged in and taken by Frohch were in reckless disregard for Brass Brick’s Rights, all as set forth in Brass Brick’s Seventh Cause of Action above.

67. The acts, actions and conduct engaged in and taken by Folich were intentional and designed to personally benefit Fro]ich, to the loss and detriment of Brass Brick, and were fraudulent.

68. Frolich knew or should have known that there was a substantial and unnecessary risk of causing serious harm to Brass Brick.

69. Frolich acted intentionally, without just cause or excuse, for ifis personal gain and benefit, to Brass Brick’s loss and detriment.

70. Brass Brick should be awarded punitive and/or exemplwy damages against Frolich to serve as a punishment against Frolich for engaging in such fraudulent conduct. Additionally, Brass Brick should be awarded exemplary damages against Frolich for the purpose of serving as an example and a deterrent to others from engaging in similar acts of fraudulent conduct.

71. Brass Brick should be awarded punitive and/or exemplary damages against Frolich in an amount in excess of SI 0,000.00.

WHEREFORE, premises considered, Brass Brick prays that it have and recover judgment against Frolich as set forth hereafter in Brass Brick’s Combined Prayer for Relief.

NINTH CAUSE OF ACTION

Lor Punitive/Exemplary Damages

(as against David Frolich, Beth McDowell, Amanda Pack and Red Door Custom Designs, LLC)

COMES NOW Brass Brick and for its Ninth Cause of Action against the Insiders and Red Door alleges and states as follows:

72. To the extent relevant, Brass Brick re-alleges, readopts and incorporates by reference all of its statements and allegations contained above, the same as if set forth fUlly herein.

73. The wrongful acts, actions and conduct taken by the Insiders, individually and on a collective basis, prior to the Resignation Date, and while still employed by Brass Brick and/or regularly receiving compensation and income from Brass Brick was in bad faith, was in reckless disregard for Brass Brick’s rights, and constituted a fraud upon Brass Brick.

74. The Insiders knew or should have known that there was a substantial and unnecessary risk of causing serious harm to Brass Brick.

75. By virtue of the Insiders’ attempting to persuade customers and prospective customers of Brass Brick to not purchase a residential home from Brass Brick and/or to not utilize Brass Brick for constructing a residential home or all such customers and prospective customers, and in lieu thereof, to utilize entities that the Insiders were then associated, all while the Insiders were still then employed by Brass Brick and/or then still regularly receiving income or compensation from Brass Brick constitutes bad faith and fraud upon Brass Brick. 76. The Insiders use of the computer and the confidential and sensitive information contained thereon, as well as use of Brass Brick’s Plans and Auto CAD software, all of which were stolen from Brass Brick on or before the Resigaation Date constitutes bad faith and fraud upon Brass Brick.

77. Red Door is controlled by the Insiders and is the Insiders’ instrumentality. Red Door has voluntarily accepted the benefits of the Insiders’ wrongful and fraudulent conduct. Red Door accepted all such benefits of such wrongfully gained material and information for the purpose of using such information, data and software for Red Door’s use and benefit, all of which constitutes bad faith and fraud upon Brass Brick.

78. The Insiders and Red Door acted intentionally, without juit cause or excuse, all for their personal gain and benefit, to Brass Brick’s loss and detriment.

79. As a result of Insiders and Red Door’s wrongful and fraudulent acts, actions and conduct, Brass Brick is entitled to punitive and exemplary damages against the Insiders, and each of them, and Red Door, all to punish the Insiders and Red Door from engaging in such bad faith and fraudulent conduct, and to serve as an ecample and deterrent to others to not engage in similar wrongful and fraudulent acts, actions and conduct.

80, Brass Brick should be awarded punitive and/or exemplary damages in an amount in excess of $10,000.00. WHEREFORE, premises considered, Brass Brick prays that it have and recover judgment against the Insiders and Red Door, jointly and severally, as set forth hereafter in Brass Brick’s Combined Prayer for Relief

COMBINED PRAYER FOR RELIEF

For its Combined Prayer for Relief Brass Brick prays that it be awardcd judgment and relief as follows:

A. Brass Brick have judgment against David Frolich, Amanda Pack, Beth McDowell, and Red Door Custom Designs, LLC, jointly and severally, in an amount in excess of $10,000.00, all as set forth in Plaintiffs First Cause of Action;

B. Brass Brick be awarded a declaratory judgment against David Frolich, Amanda Pack, Beth McDowell, and Red Door Custom Designs, LLC, declaring Brass Brick to be the sole and exclusive owner of the subject computer, includng all data stored thereon, the Plans and the Auto CAD software, all as set forth in Plaintiffs Second Cause of Action;

C. Brass Brick be awarded injunctive relief against David Frolich, Amanda Pack, Beth McDowell, and Red Door Custom Designs, LLC, temporarily and permanently prohibiting, restraining and enjoining David Frolich, Amanda Pack, Beth McDowell, and Red Door Custom Designs, LLC, from using the subject computer and any information or data stored thereon, and from using the Plans and the Auto CAD software. Further, said David Frolich, Amanda Pack, Beth McDowell, and Red Door Custom Designs, LLC should be ordered to immediately return the subject computer intact, with all data stored thereon, and to deliver to Brass Brick any and all copies, reproductions, duplications, et cetera, that may exist regarding any such information contained therein, all as set forth in Plaintiffs Third Cause of Action;

D. Brass Brick have judgment against David Frolich, Amanda Pa.zk and Beth McDowell, jointly and severally, in an amount in excess of $10,000.00, all a set forth in Plaintiffs Fourth Cause of Action;

E. Brass Brick have judgment against David Frolich, Amanda Pack, Beth McDowell and Red Door Custom Designs, LLC, jointly and severally, in an amount in excess of $10,000.00, all as set forth in Plaintiffs Fifth Cause of Action;

F. Brass Brick have judgment against David Frolich, Amanda Pack, Beth McDowell, and Red Door Custom Designs, LLC, jointly and severally, in an amount in excess of $10,000.00, all as set forth in Plaintiffs Sixth Cause of Action;

G. Brass Brick have judgment against David Frolich, only, in an amount in excess of $10,000.00, all as set forth in Plaintiffs Seventh Cause of Action;

H. Brass Brick have judgment against David Frolich, only, in an amount in excess of $10,000.00, all as set forth in Plaintiffs Eighth Cause of Action;

I. Brass Brick have judgment against David Frolich, Amanda Pack, Beth McDowell, and Red Door Custom Designs, LLC, jointly and severally, in an amount in excess of $10,000.00, all as set forth in Plaintiffs Ninth Cause of Action;

J. Brass Brick be awarded all of its costs, accrued and accruing, and reasonable attorney fees; and,

K. Brass Brick be awarded any and all such other and further relief this Court deems just and proper.

Outcome: Now before the Court is the Plaintiff Beth McDowell’s Motion for Summary Judgment pertaining to her claim for unpaid wages against the Defendant Brass Brick Homes III, L.L.C. Plaintiff appears by her counsel, Jeff A. Taylor, and Defendant appears by its counsel, Dennis S. Boxeur. After reviewing the briefs submitted and hearing the arguments of counsel, it is the ruling of the Court that Plaintiffs Motion for Summary Judgment is hereby denied.

Settled and dismissed with prejudice.

Plaintiff's Experts:

Defendant's Experts:

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