Date: 02-11-2015

Case Style: Jennifer Ghigliotti v. Jimmy E. Smith

Case Number: CJ-2011-595

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Eric Cavett and Dave Teasdale

Defendant's Attorney: Amerlia Recla

Description: Jennifer Ghigliotti and Chris Ghigliotti sued Jimmy E. Smith, Joe Carey and Elizabeth Carey seeking damages claiming:

1. Plaintiffs own and live in a house located at 1525 S.E. 6th Street in Moore, OK.
2. Several months ago, Plaintiffs neighbors (Defendants Joe Carey and Elizabeth Carey, hereinafter “The Careys”) sued Plaintiffs over a dispute over a fence the properties share, SC-2010-31 18, Cleveland County.
3. The Careys lost in court and, with the assistance of Defendant Smith, began to retaliate against the Plaintiffs.
4. Together, Defendants began to terroñze the Plaintiffs by, amongst other things, intentionally hitting parked vehicles of the Plaintiffs.
5. Defendant Smith lives directly across the street and The Careys live adjacent to the Plaintiffs home.
6. After Plaintiffs put up video surveillance recording the intentional acts, police came and issued Mt-and-run citations to the Defendant Joe Carey.
7. Defendants continued to harass and terrorize the Plaintiffs by telling third parties that Plaintiffs are child molesters and perverts.
8. Recently, Defendant Smith has put up a large billboard type sign which states in all capped, red letters, “HOUSE UNDER SURVEILANCE BY A COWARD & A FAT PIG.” Lx. A. (The word “surveillance” is intentionally spelled incorrectly with only one “L” in this document to reflect the actual spelling by Defendant)
9. Plaintiffs have requested that the sign be taken down on several occasions and Defendant has refused every request.
10. During Plaintiffs most recent request of Defendant to take the sign down, Plaintiff, Chris Ghigliotti, was threatened by the Defendants.
11. Defendants have refused to allow Plaintiffs to enjoy their property and are continuing to tortiously interfere with Plaintiff’s contract activities by preventing the sale of theft home through the above-mentioned means.
FIRST CAUSE OF ACTION: TORTIOUS INTERFERENCE WITH BUSINESS
RELATIONSHIPS OF PLAiNTIFFS
12. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 11 as though fully set forth herein.
13. Sometime in March 2011, Plaintiffs entered into an agreement with a realtor to sell the home located at 1525 S.E. 6th Street.
14. Defendants are aware of Plaintiffs’ efforts to sell theft home.
15. Defendants have acted in concert with each other to prevent the sale of said home.
16. On April 12, 2011, realtor acting on behalf of Plaintiffs determined they would be unable to continue to represent the Plaintiffs in the sale of their home because of the large sign previously mentioned in this Petition, the Defendants activities of attacking the Plaintiff, Chris Ghigliotti, and the bit-and-run violations by the Defendants.
17. The Plaintiffs had business relationships and/or contracts with the third party realtor not named in this lawsuit.
18. Defendants knew or should have known about the relationships.
19. Defendants interfered and continue to interfere with said relationships, induced one more Third Parties to breach the relationship/agreement, and/or made it impossible for the business relationship/contracts to be performed.
20. Defendants interfered with the business relationship and/or contract so severely that the Plaintiff cannot utilize the realtor for the purpose of the contract and/or business relationship and the realtor has or intends to discontinue efforts in selling Plaintiff’s property.
21. Defendants’ actions were intentional, reckless, and with malice.
22. Defendants used improper and unfair means and the Plaintiff has been damaged in an amount exceeding $75,000.00 as a direct result of Defendants’ actions and should be awarded punitive damages in excess of $75,000.00.
SECOND CAUSE OF ACTION: DEFAMATION
23. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 22 as though hilly set forth herein.
24. Defendant Smith has created and published a defamatory written statement on a billboard type sign across the street from Plaintiffs’ home.
25. The defamatory statement is “of and concerning” the Plaintiffs and by its placement and location sufficiently identifies the Plaintiffs to third parties.
26. The defamatory statement is damaging to the reputation of the Plaintiffs.
27. Defendants are also spreading rumors to third parties that Plaintiffs are child molesters and perverts.
28. The defamatory spoken statements are “of and concerning” the Plaintiffs and sufficiently identifies the Plaintiffs to third parties.
29. The defamatory spoken statement is damaging to the reputation of the Plaintiffs.
30. Defendants’ actions were intentional, reckless, and with malice.
31. As a result of the Defendants’ written and spoken defamation of Plaintiffs, Plaintiffs are entitled to judgment against the Defendants for actual and compensatory damages in an amount in excess of $75,000.00 and to an award of punitive damages in an amount in excess of $75,000.00 and attorney fees and costs.
THIRD CAUSE OF ACTION: PRIVATE NUSANCE
32. Plaintiffs incorporate the allegations set forth in paragraphs 1 through 31 as though frilly set forth herein.
33. Defendants have substantially interfered with the private use of Plaintiffs’ individual use and enjoyment of Plaintiffs’ property.
34. The Plaintiffs have minor children who are capable of reading, hearing, and understanding the aforementioned defamatory statements.
35. The defamatory statements are offensive to the average person in the community.
36. The Plaintiffs, being essentially attacked by Defendants, have to monitor their property even while inside the home, via video surveillance, because of the actions of the Defendants.
37. Plaintiffs are continually prevented from being able to escape this situation because Defendants are preventing them from selling their home.
38. As a result of the Defendants’ actions, Plaintiffs are entitled to judgment against the Defendants for actual and compensatory damages in an amount in excess of $75,000.00 and to an award of punitive damages in an amount in excess of $75,000.00 and attorney fees and costs.
WHEREFORE, Plaintiffs pray for judgment in their favor against the Defendants, as alleged above, and for such other and further relief as the Court finds to be just and proper under the circumstances, including, but not limited to, recovery of Plaintiffs attorneys’ fees and other costs of this action.
APPLICATION FOR INJUNCTION AND TEMPORARY RESTRAINING
ORDERWITHOUT NOTICE: REQUEST FOR EMERGENCY hEARING
COMES NOW Plaintiffs, Jennifer Ohigliotti and Chris Ghigliotti, and respectThlly applies
this Court for an Injunction and Temporary Restraining Order Without Notice to bar or preclude Defendant, Jimmy Smith, from interfering with the sale of a house owned by the Plaintiffs as a result of Defendant tortiously interfering with the contracting activities of the Plaintiff which has created a private nuisance to the Plaintiffs preventing them from selling their house. Plaintiffs state that irreparable injuries, loss or damage has been and continues to be sustained by the manner in which Defendant has conducted himself and his interference with Plaintiff’s property rights and rights of enjoent.
Plaintiffs seek a permanent injunction and further move this Court for an emergency hearing and a temporary restraining order for such period of time until the Court may afford the parties a hearing, regarding the property issues as more further illustrated below. In support of this motion Plaintiffs show the Court:
CRITERIA FOR TEMPORARY RESTRAINING ORDER
The traditional purpose of a preliminary injunction is to preserve the status quo until the court has an opportunity to hold a trial on the merits. See SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1099 (10th Cir. 1991). In determining whether to grant the temporary relief sought, the Court should consider:
1. The applicant’s likelihood of success on the merits;
2. Irreparable harm to the parties seeking relief if the relief is denied;
3. The relative effect on the other interested parties;
4. Public policy concerns about the issuance of the relief sought.
See, Thayne A. Hedges Regional Speech & Hearing Or., Inc. v. Baughman, 1998 OK CIV
APP 112 ¶4, 996 P.2d 939, 941. Of this criteria, the Court’s principal focus must be on the
irreparable harm element. Tulsa Order of Police Lodge No. 93, ex rel. Tedrick v. City of Tulsa, 2001
OK CIV APP 153 ¶25,39 P.3d 152.
PLAINTIFF HAS AND WILL CONTINUE TO SUFFER IRREPARABLE HARM
Injury is irreparable when it is incapable of being fully compensated for in damages or where the measure of damages is so speculative that it would be difficult if not impossible to correctly arrive at the amount of the damages. Hines v. Independent School Dist. No. 50, Grant County, 380 P.2d 943 (Okla. 1963). A Plaintiffs interests in good will, brand recognition, customer contacts, and referral resources cannot be measured in numerical or monetary terms,
and neither can the damages to these interests that plaintiff will suffer without injunctive relief.
See Size Wise Rentals, Inc. v. Mediq/PR]’/ Ljfe Support Services, Inc., 87 F. Supp.2d 1194, 1200
(D. Kan. 2000). A loss of customers and goodwill creates irreparable harm. Fireworks
Spectacular, Inc. v. Premier Pyrotechnics, Inc., 86 F. Supp.2d 1102, 1107 (D. Kan. 2000)
Defendants axe preventing the Plaintiff from selling their home as mentioned above. Defendants are preventing Plaintiff from carrying on thier day-to-day activities and enjoying the private use of their home. Defendants have tortiously interfered with business relationships of Plaintiffs by their actions as outlined above. Further, Plaintiffs have minor children and it is their interests that the above-outlined tortuous actions cease immediately.
Also, Plaintiffs are suffering everyday from the decrease in value of their home. Further, Plaintiff’s reputation is being hanned. Monetary damages and other legal remedies are not sufficient to address the conduct of the Defendant. If the Plaintiff is denied relief; the harm will continue and Plaintiffs will suffer considerably.
PLAINTIFF HAS SATISFIED TILE THREE OTHER PRONGS
a. The Plaintiff in all likelihood will succeed on the merits.
The verified facts set forth herein establish that the Defendants have interfered with the lawful right of the Plaintiffs and have committed multiple tort violations that continue to cause the Plaintiff harm.
b. There is little to no effect on other interested parties.
The Temporary Restraining Order sought by the Plaintiff merely enforces the rights of the Plaintiffs.
c. Public policy concerns mandate the issuance of a temporary restraining order.
All the parties to this proceeding have a professional and ethical duty to proceed properly and ethically in connection with the use of property and treatment of others in our communities. The activities of the Defendants have tortiously interfered with that process. Public policy would not favor the improper acts of the Defendants, but would favor the relief sought by the Plaintiffs.
CONCLUSION
Plaintiffs are being irreparably harmed by the activities of the Defendants, as more fully set forth herein, and would respectfully move that the Court enter an Injunction and Temporary Restraining Order to:
1. Prevent further harm to Plaintiffs;
2. Preclude the Defendants from tortiously interfering with Plaintiffs’ business activities.
3. Preclude the Defendants from placing any signs that present defamatory statements regarding the Plaintiffs.
4. Preclude the Defendant from interfering with any activity of the Plaintiflä relating to the lawful use of their property and their business activities.

Court Docket:

Date Code Description Count Party Amount
04-13-2011 TEXT

Civil relief more than $10,000 Initial Filing.
1
04-13-2011 DAMAGE

DAMAGE

04-13-2011 DMFE

DISPUTE MEDIATION FEE
$ 2.00
04-13-2011 PFE1

PLAINTIFFS' PETITION AND APPLICATION FOR INJUNCTION AND TEMPORARY RESTRAINING ORDER WITHOUT NOTICE: REQUEST FOR EMERGENCY HEARING

Document Available (#1014937643)
$ 163.00
04-13-2011 PFE7

LAW LIBRARY FEE
$ 6.00
04-13-2011 OCISR

Oklahoma Court Information System Revolving Fund
$ 25.00
04-13-2011 LTF

Lengthy Trial Fund
$ 10.00
04-13-2011 SMF

Summons Fee (Clerks Fee) / 3-3 DEF, GTA
$ 15.00
04-13-2011 EAA

ENTRY OF APPEARANCE / ERIC J. CAVETT AND DAVID L. TEASDALE, ATTYS FOR PLTFS

Document Available (#1014937639)

04-13-2011 TRO

TEMPORARY RESTRAINING ORDER WITHOUT NOTICE ***TAL*** HEARING SET FOR 4-21-11 AT 3:30PM BEFORE JUDGE SCHUMACHER

Document Available (#1014937635)

04-13-2011 TEXT

OCIS has automatically assigned Judge Schumacher, Tracy to this case.

04-13-2011 ACCOUNT

Receipt # 2011-565580 on 04/13/2011.
Payor:FOSHEE & YAFFE Total Amount Paid: $221.00.
Line Items:
CJ-2011-595: $178.00 on AC01 Clerk Fees.
CJ-2011-595: $6.00 on AC23 Law Library Fee.
CJ-2011-595: $2.00 on AC64 Dispute Mediation Fees.
CJ-2011-595: $25.00 on AC79 OCIS Revolving Fund.
CJ-2011-595: $10.00 on AC81 Lengthy Trial Fund.

04-15-2011 SMS

Summons Returned, Served: / SPS / JIMMY E SMITH BY PERSONAL SERVICE / 04-14-10

Document Available at Court Clerk's Office
Smith, Jimmy E
04-15-2011 SMS

Summons Returned, Served: / SPS / ELIZABETH CARY BY PERSONAL SERVICE / 04-14-11

Document Available at Court Clerk's Office
Carey, Elizabeth
04-15-2011 SMS

Summons Returned, Served: / SPS / JOE CAREY BY LEAVING AT RESIDENCE WITH ELIZABETH CARY 04-14-11

Document Available at Court Clerk's Office
Carey, Joe
04-15-2011 MO

MOTION FOR CITATION FOR CONTEMPT - TEMPORARY RESTRAINING ORDER - TAL / SPS / JIMMY E SMITH BY PERSONAL SERVICE / 04-14-11

Document Available (#1014706771)
Smith, Jimmy E
04-19-2011 CTEMP

CITATION FOR CONTEMPT RETURNED / SPS / JIMMY E SMITHER BY PERSONAL SERVICE / 04-15-11

Document Available (#1014710922)
Smith, Jimmy E
04-20-2011 EAA

ENTRY OF APPEARANCE - AMELIA B RECLA ATTY FOR DEFS JIMMY E SMITH, JOE CAREY AND ELIZABETH CAREY

Document Available (#1014711661)

05-04-2011 TEXT

RESERVATION OF TIME - DEFS / AMELIA B. RECLA ATTY

Document Available (#1014715188)

05-19-2011 CTFREE

SUMMARY ORDER: PARTIES AND COUNSEL APPEAR ON PLAINTIFFS PETITION FOR TEMPORARY RESTRAINING ORDER 04-13-11 EMERGENCY ORDER IS VACATED, TEMPORARY RESTRAINING ORDER ISSUED TO WIT: NO PARTIES OR OCCUPANTS OF ANY SUBJECT HOMES ARE TO POST OR ALLOW TO BE POSTED ON THEIR PROPERTIES OTHER THAN FOR SALE SIGNS, NO PARTIES OR OCCUPANTS OF ANY SUBJECT HOMES TO PLACE OR ALLOW TO BE PLACED ANY OBJECTS ON THE OTHERS PROPERTIES OR ACROSS THE PROPERTY LINES OF THE OTHER HOMES. NONE OF THE ADULTS TO SPEAK TO OR ADDRESS THE OTHERS CHILDREN. DEFENDANT SMITH ARRAIGNED ON CONTEMPT ON CONTEMPT CITATION AND PLEADS NOT GUILTY, DEFENDANT RELEASED ON PERSONAL RECOGNIZANCE BOND, CASE SET FOR NON-JURY TRIAL - TS

Document Available (#1014710847)

05-23-2011 BOND

PERSONAL RECOGNIZANCE BANK - JIMMY E SMITH

Document Available at Court Clerk's Office

05-24-2011 A

ANSWER AND COUNTERCLAIM

Document Available (#1014717530)

06-16-2011 MO

MOTION TO DISMISS DEFENDANTS' COUNTERCLAIM

Document Available (#1015478128)

06-17-2011 NOH

NOTICE OF HEARING / PLTF'S MOTION TO DISMISS DEF'S COUNTERCLAIM SET FOR 7-18-11 AT 1:30PM BEFORE JUDGE SCHUMACHER

Document Available (#1015704802)

07-01-2011 MO

MOTION FOR LEAVE TO AMEND PLEADINGS AND OBJECTION AND RESPONSE TO PLAINTIFF'S MOTION TO DISMISS DEFENDANTS' COUNTERCLAIM

Document Available (#1015476767)

07-13-2011 RESP

RESPONSE TO DEFENDANT'S MOTION FOR LEAVE TO AMEND PLEADINGS AND REPLY TO DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION TO DISMISS DEFENDANT'S COUNTERCLAIM

Document Available (#1015479565)

07-18-2011 O

SUMMARY ORDER**TS**

Document Available (#1015764617)

07-18-2011 A

ANSWER AND AMENDED COUNTERCLAIM

Document Available (#1015764609)

08-05-2011 A

PLAINTIFFS ANSWER TO DEFENDANTS COUNTERCLAIM

Document Available (#1016170312)

06-15-2012 CER

CERTIFICATE OF COMPLIANCE WITH DISCOVERY

Document Available (#1018714906)

06-15-2012 CER

CERTIFICATE OF COMPLIANCE WITH DISCOVERY

Document Available (#1018714910)

11-08-2013 NO

NOTICE OF DISPOSITION DOCKET - TS (SET 12-30-13 10:00 AM)

Document Available (#1022734497)

12-30-2013 CTFREE

SUMMARY ORDER - SCHEDULING ORDER TO ISSUE -- ATTYS TO DOCKET CASE FOR PRETRIAL WITHIN 90 DAYS (TS)

Document Available (#1023461566)

12-30-2013 SO

SCHEDULING ORDER/ORDER FOR PRETRAIL CONFERENCE / PRETRIAL CONFERENCE SET 03-03-14 AT 9:30AM

Document Available (#1023460097)

02-03-2014 WL

PLAINTIFF'S WITNESS AND EXHIBIT LIST

Document Available (#1023755360)

02-24-2014 WL

DEFENDANTS' FINAL WITNESS AND EXHIBIT LISTS

Document Available (#1024106349)

03-03-2014 MOSJ

MOTION FOR SUMMARY JUDGMENT and brief in support / DEFS (SET 4-14-14 1:30 PM)

Document Available (#1023746112)
$ 50.00
03-03-2014 ACCOUNT

Receipt # 2014-749421 on 03/03/2014.
Payor:AMELIA B RECLA ATTY AT LAW PLLC Total Amount Paid: $50.00.
Line Items:
CJ-2011-595: $50.00 on AC01 Clerk Fees.

03-04-2014 CTFREE

SUMMARY ORDER - CASE SET ON 3-3-14 BEFORE JUDGE SCHUMACHER IS STRICKEN BY AGREEMENT. DUE TO WEATHER CONDITIONS. PTC TO BE RESET UPON APPLICATION. CASE SET FOR MSJ 4-14-14 AT 1:30 PM (TS)

Document Available (#1024104778)

03-19-2014 RESP

PLAINTIFFS RESPONSE TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT

Document Available (#1024390300)

04-14-2014 CTFREE

SUMMARY ORDER - COUNSEL APPEAR ON DEF'S MOTION FOR PARTIAL SUMMARY JUDGMENT - TAKEN UNDER ADVISEMENT ....CASE SET 9-30-14 CALL DOCKET AT 10:00 AM .... JURY FEE DUE BY 8-8-14 4:00 PM .... (TS)

Document Available (#1024623508)

04-16-2014 CTFREE

SO: PTC RESET TO 9-2-14 AT 9AM ***TS***

Document Available (#1024390817)

05-29-2014 B

PLAINTIFF'S TRIAL BRIEF ON THE ISSUE OF DAMAGES

Document Available (#1025284919)

07-31-2014 MO

MOTION FOR RULINGS AND MOTION FOR CONTINUANCE

Document Available (#1026413012)

08-07-2014 RJT

REQUEST FOR JURY TRIAL
$ 349.00
08-07-2014 ACCOUNT

Receipt # 2014-777299 on 08/07/2014.
Payor:CHRISTOPHER J GHIGLIOTTI Total Amount Paid: $350.00.
Line Items:
CJ-2011-595: $349.00 on AC01 Clerk Fees.
CJ-2011-595: $1.00 on AC99 Holding.

09-22-2014 CTFREE

SUMMARY ORDER: 9-17-2014 DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED AS MATERIAL FACTS ARE IN DISPUTE. ISSUE OF "MOOTNESS" AND DAMAGES ARE JURY QUESTIONS (FINDER OF FACT QUESTIONS) MS. KNAPP TO NOTICE COUNSEL. CASE REMAINS SET FOR DECEMBER 2, 2014 AT 9:30 A.M. TS

Document Available (#1026403912)

09-22-2014 CTFREE

SUMMARY ORDER: 8-19-2014 ORDER TO ISSUE BY FRIDAY. ANY VIDEO THAT PLAINTIFF SEEKS TO USE AT TRIAL, TO BE PROVIDED TO MS. RECLA AS FOLLOWS-- MS. RECLA TO FIND "COPY PLACE" NOTIFY PLAINTIFF. COUNSEL, THEY WILL TAKE TO "COPY PLACE" ARRAIGNMENTS FOR "COPIES" AND PAYMENT MADE BY MS. RECLA. PRE-TRIAL CONFERENCE RESET FOR DECEMBER 2, 2014 AT 9:30 A.M. TS
WITH CERTIFICATE OF SERVICE

Document Available (#1026403916)

10-14-2014 NO

NOTICE OF ADDRESS CHANGE - AMELIA B RECLA ATTY FOR DEFS

Document Available (#1027349702)

12-03-2014 CTFREE

SUMMARY ORDER: MR CAVETT AND MS RECLA APPEAR / ISSUES DISCUSSED / PRIOR TO TRIAL COUNSEL ARE TO EXCHANGE /MEET AND EXHIBITS OF THE VIDEO (?) FOTTAGE SO THAT EACH CLIP IS LABELED AND IDENTIFIED AS INDIVIDUAL TRIAL EXHIBITS EMAILS TO BE SPECIFICALLY IDENTIFIED AND LABELED SO THAT THEY CAN BE IDENTIFIEID AND SPECIFI OBJECTIONS MADE / SPECIFIC EXHIBITS ALL TO BE LABELED AND EXCHANGED BY MARCH 18 2015 PRE-TRIAL ORDER MAY BE SUPPLEMENTED AND FURTHER PRE-TRIAL CONFERENCE SET MARCH 24 2015 MEDIATION BY FEBRUARY 2 2015 AT 10:30AM - TS

Document Available (#1027750057)

Outcome: Joint dismissal with prejudice.

Plaintiff's Experts:

Defendant's Experts:

Comments: