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38. As a direct and proximate result, Zellitti properties has been damaged by not <br />having an opportunity to be a pit owner or profit from the pit exchange. <br />COUNT VII <br />39. . All introductory paragraphs 1 thru 19 are realleged and incorporated herein <br />by this reference. <br />40. Defendants Hocker and Anthony and Marylyn Zellitti had an agreement with <br />the Plaintiff to forebear from filing any lawsuit arising out of a letter to the Colorado <br />Division of Reclamation and Mining Safety, if Plaintiff withdrew its complaint to the said <br />agency. <br />41. Plaintiff agreed and did forthwith withdraw the complaint. <br />42. Plaintiffs withdrawal of the complaint represented consideration for the <br />Defendants' agreement not to sue. <br />43. Defendant, Anthony Zellitti, Marilyn Zellitti and Hocker violated and breached <br />the agreement by filing suit herein based on the letter complaint to the Colorado <br />Division of Reclamation and Mining Safety. <br />44. As a result of the suit based on the letter complaint to the Colorado Division <br />of Reclamation and Mining Safety Plaintiff suffered damages in the form of attorney fees <br />and costs of this litigation and managing Partner of the Plaintiff, Wilma Zellitti, <br />personally incurred mental stress, upset and emotional distress. <br />COUNT VIII <br />45. All preceding paragraphs are realleged and incorporated herein by this <br />reference. <br />46. Hocker Construction, L.L.P. has violated its duty of good faith and fair <br />dealing with the plaintiff which arose out of its verbal agreement with the Plaintiff to use <br />the Plaintiff's property from a month to month basis up until April 2008 when Zellitti <br />Properties finally terminated the agreement and demanded Hocker leave the premises. <br />47. Hocker by and though its partners and agents and attorneys continually <br />acted to frustrate the Plaintiffs rights to information regarding its property, legal action <br />affecting the property and payment of royalties to the Plaintiff and/or fees for usage of <br />the Plaintiffs property and acted in concert with Anthony and Marilyn Zellitti in all of the <br />above actions causing damages to the Plaintiff.