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2009-06-26_REVISION - M1980246 (5)
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2009-06-26_REVISION - M1980246 (5)
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Last modified
6/15/2021 3:06:02 PM
Creation date
6/26/2009 3:29:08 PM
Metadata
Fields
Template:
DRMS Permit Index
Permit No
M1980246
IBM Index Class Name
Revision
Doc Date
6/26/2009
Doc Name
District Court Amended Complaint (E-Mailed)
From
Charles Powers
To
DRMS
Type & Sequence
AM2
Email Name
KAP
Media Type
D
Archive
No
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13. At a meeting in October 2006, Zellitti Properties, through its general partner, <br />became aware of a written lease and at that time and thereafter through its attorney <br />demanded that: <br />a. the lease be produced for review by plaintiff Zellitti Properties and its attorney; <br />and, <br />b. Zellitti Properties be a party to any existing or future written lease or any <br />expansion of the existing pit or any new pit permit; <br />c. pursuant to any existing or future lease Zellitti properties must have direct <br />monthly accounting from Hocker Construction, L.L.P. regarding mining activity; and, <br />d. Zellitti Properties must be paid directly any royalties due rather than through <br />the joint tenants. <br />14. Subsequently, at an unknown time, the Defendants Hocker Construction <br />L.L.P. and Anthony Zellitti entered a new and different written exclusive sand and gravel <br />lease of the tenancy in common property and back dated the same to August 8 or 5, <br />2005, without the prior knowledge or consent of the Plaintiff and over the Plaintiff's <br />objection to any written lease being entered without its written consent. The new lease <br />is attached and marked Exhibit A. <br />15. In the same time frame, and also without the knowledge or consent of Zellitti <br />Properties, Defendant, Anthony Zellitti and Hocker Construction acting in concert <br />negotiated for the right to mine sand and gravel on property adjacent to the existing <br />gravel pit (hereinafter the Phillips property) for the purpose of extending the sand and <br />gravel pit into said property. Without the knowledge or permission of the Plaintiff, <br />Anthony released property of the Plaintiff from the existing pit permit and exchanged the <br />same with the Phillips property; and that Anthony Zellitti had continued to pay a small <br />sum in this period to the Plaintiff as a "royalty" when in fact Anthony Zellitti was paying <br />himself a much larger sum from the activities of Hocker Construction on the adjacent <br />Phillips property and never the less continued utilizing the joint tenancy property for <br />milling, storage and transportation from the said Phillips property. <br />16. In addition to the above, and also without knowledge or consent of Zellitti <br />Properties, the Defendant, Hocker Construction, L.L.P. began mining sand and gravel <br />from the existing pit which extended onto other property jointly owned by Anthony Zellitti <br />and Marilyn Zellitti and other relatives of the said Defendants (hereinafter the Barry <br />property) and for which they received a royalty and used the tenancy in common <br />property for milling, storage and ingress and transportation and failed to pay any fee to <br />the Plaintiff for the use of the tenancy in common property owned by Plaintiff. <br />17. Over the objection of the Plaintiff, Anthony Zellitti and Marilyn Zellitti began <br />charging 10% management fee deducted from the royalty payments being paid by <br />Hocker Construction L.L. P, for sand and gravel extracted from the commonly owned <br />property.
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