2009-06-16_ENFORCEMENT - M1980246

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COUNT IV 28. All introductory paragraphs are realleged and incorporated herein by this reference. 29. In the alternative to the above, if the Court finds and Declares that the written lease is valid and binding on the Plaintiff; then, according to the terms thereof, Plaintiff is entitled to judgment against Anthony Zellitti for 25% of the royalty payments for the mining on the Phillips property and the Barry property since the gravel came from the permitted pit leased and the commonly owned property was used for milling, storage and transportation at the rate of $1.00 per ton of all material extracted. COUNT V 30. All introductory paragraphs are realleged and incorporated herein by this reference. 31. Anthony Zellitti is indebted to the Plaintiff for the management fees retained by Anthony Zellitti without the express consent of the Plaintiff. PRAYER FOR RELIEF WHEREFORE Plaintiff requests Relief as follows: 1. A Declaratory Judgment Decreeing that the Plaintiff is not bound by the terms of any written lease of the commonly owned property to Hocker Construction, L.L.P.; 2. Order that Payments for Plaintiffs 25% share of royalties on sand and gravel from Hocker Construction. L.L.P. be made directly to Zellitti Properties or its successors or assigns; 3. Enjoin Anthony and Marilyn Zellitti from leasing or encumbering the tenant in common property, Exhibit A, without Plaintiffs express consent; 4. Award damages, plus pre and post judgment interest and costs of this action against Defendants Anthony Zellitti and Marilyn Zellitti; and 5. Allow Plaintiff and its duly authorized agents to access to all jointly owned property. 6. Order an accounting by Defendants to Plaintiff of all mining activity, payment therefore and claimed expenses. 7. Award costs of this action plus such other and further relief as the Court may deem just and proper. Dated this 28th day of May, 2008 s/s Charles C. Powers original duly signed and on file at the office of Charles C. Powers