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18. The Defendants have, inter alia, steadfastly refused to enter a written lease <br />which includes the Plaintiff as a party, to make payments to the Plaintiff of royalties, the <br />plaintiff having discovered other irregularities including the Philips exchange and the <br />refusal to pay for the use of Plaintiffs property to mine the Barry Zellitti property. <br />19. As a result of the above breaches of duty to the Plaintiff by the Defendants, <br />Anthony Zellitti and Marilyn Zellitti and Hocker Construction, L.L.P., and refusal of <br />Defendants to make a satisfactory agreement with the Plaintiff, Plaintiff terminated the <br />management agreement with the Defendants effective December 2007 and terminated <br />any consent to Hocker Construction, L. L. P, its partners, agents or employees to enter <br />the tenancy in common property of Plaintiff, effective April 30, 2008. <br />COUNTI <br />20. All introductory paragraphs 1 through 19 are realleged and incorporated <br />herein by this reference. <br />21. In December 2007, Plaintiff agreed with the Defendants to enter a lease for <br />royalties on the existing pit and for an expansion of the pit or for a new pit to the south <br />and the east of the old pit and for payment of royalties directly to Zellitti Properties and <br />production of records to Zellitti Properties and agreed to withdraw a complaint from the <br />Division of Reclamation and Mining Safety for lack of access as part of the <br />consideration therefore. <br />22. Immediately after the Plaintiff withdrew the complaint, the Defendants <br />breached the agreement and refused to enter the lease; but, never the less, continued <br />to occupy and use Zellitti Properties' property, and refused to perform other obligations <br />causing damages including loss of income, and expenses of this litigation. <br />COUNT II <br />23. All introductory paragraphs 1 through 19 are realleged and incorporated <br />herein by this reference. <br />24. Anthony Zellitti and Marilyn Zellitti violated their good faith and fair dealing <br />obligation to Plaintiff arising out of the tenancy in common relationship and the payment <br />of management fees by: <br />a. Exchanging property which was part of the Plaintiff's gravel pit for other <br />property owned by a neighbor, and extending the pit into the adjoining property for <br />royalties without advising the Plaintiff and contrary to their obligation to the Plaintiff as <br />principal to protect the Plaintiff's interests;