2009-06-16_ENFORCEMENT - M1980246

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21. Plaintiffs request the Court Declare that any written lease to the extent that the Defendants have attempted to bind the Plaintiff violates the statue of frauds. 22. Plaintiffs request the Court Declare that the lease from Anthony Zellitti as sole owner of the premises to Hocker Construction L.L.C. for the exclusive gravel mining rights is not binding upon Zellitti Properties, a general partnership. COUNT II 23. All introductory paragraphs 1 through 19 are realleged and incorporated herein by this reference. by: 24. Anthony Zellitti and Marilyn Zellitti violated their fiduciary duty to the Plaintiff a. purchasing adjoining property which was part of the mutually owned gravel pit and extending the pit into the adjoining property for royalties without advising the Plaintiff and contrary to their obligation to the Plaintiff as principal to protect the Plaintiffs interests; • b. by exclusive written leases for the sand and gravel without Plaintiffs knowledge and consent; c. by arbitrarily increasing management fees without the Plaintiffs consent and contrary to Plaintiffs express direction; d. failing to pay royalties for use of the commonly owned property associated with the Phillips property and the Barry property. e. other actions which may be disclosed by accounting and discovery. 25. Anthony Zellitti and Marilyn Zellitti are indebted to the Plaintiff for the management fees paid and for the reasonable value of 25% of the royalties paid on the Phillips and Barry material extracted from that property. COUNTIII 26. All introductory paragraphs 1 thru 19 are realleged and incorporated herein by this reference. 27. As an incident to ownership of an undivided 25% Plaintiff is entitled to the reasonable and fair value of the use of the 25% of the commonly owned property associated with the Defendant Hocker's mining of the Phillips property and the Barry property to be paid by the tenants in common to the Plaintiff.