David L. Nicholson, Jefferson Circuit Clerk NO. JEFFERSON CIRCUIT COURT DIVISION JUDGE DONALD E. WILSON, 9621 El Prado St. Louisville, Kentucky 40272-3262 VS. PLAINTIFF VERIFIED COMPLAINT (Electronically Filed) CAPTENN ENTERPRISES, INC. d/b/a PROBILT AUTOMOTIVE SERVICE & SALES, 4106 Preston Highway Louisville, Kentucky 40213-1653 SERVE: Hon. Samuel G. Hayward 4036 Preston Highway Louisville, Kentucky 40213-1659 -ANDSAMUEL KEITH TENNILL c/o CAPTENN ENTERPRISES, INC. d/b/a PROBILT AUTOMOTIVE SERVICE & SALES, 4106 Preston Highway Louisville, Kentucky 40213-1653 SERVE: Hon. Samuel G. Hayward 4036 Preston Highway Louisville, Kentucky 40213-1659 DEFENDANTS ************* AND NOW COMES the Plaintiff, DONALD E. WILSON (hereinafter Mr. D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000001 of 000012 18-CI-001860 Presiding Judge: COM. SHERRIE BISCHOF (900109) Filed “Wilson”), in person, by and through counsel, that as and for his causes of action COM : 000001 of 000012 herein, respectfully states, upon information and belief, as follows: Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk David L. Nicholson, Jefferson Circuit Clerk PARTIES, JURISDICTION & VENUE 1. That Mr. Wilson is a resident of Louisville, Jefferson County, Kentucky, with a principal residence located at 9621 El Prado Street Louisville, Kentucky 402723262; 2. That at all times relevant hereto, the Defendant CAPTENN ENTERPRISES, INC. d/b/a PROBILT AUTOMOTIVE SERVICE & SALES (hereinafter Defendant “Probilt”), was and/or is a Kentucky For-Profit Corporation with its principal place of business located at 4106 Preston Highway, Louisville, Kentucky 40213-1653 organized and existing under the laws of the Commonwealth of Kentucky with the power to sue and be sued and it is subject to the venue and jurisdiction of this Court; 3. That upon information and belief, at all times relevant hereto, the Defendant SAMUEL KEITH TENNILL (hereinafter Defendant “Tennill”, and along with Probilt, collectively, the “Defendants”) was the President of Probilt; 4. That Mr. Wilson brings his claims against Defendant Tennill as agent for Defendant Probilt and in his individual capacity, where appropriate; and 5. D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000002 of 000012 18-CI-001860 That at all times relevant hereto, the Defendant Probilt held itself out as a purveyor of automotive sales and services to the public, and was therefore a “person” engaged in “trade” and/or “commerce” within the meaning of Sections 110(1)-(2) of the Kentucky Consumer Protection Act of 1972, KRS 367.110 et seq., and Defendant Presiding Judge: COM. SHERRIE BISCHOF (900109) Filed Tennill was an agent thereof; That jurisdiction and venue are proper in this Court, as the amount in controversy exceeds $5,000.00, exclusive of interest and costs and Mr. Wilson resides in Jefferson County; -2Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000002 of 000012 6. 18-CI-001860 David L. Nicholson, Jefferson Circuit Clerk STATEMENT OF FACTS 7. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Six (6) are repeated and realleged as if fully set forth herein; 8. That at all times relevant hereto, Mr. Wilson was the owner of his personal vehicle, a 2000 Ford Ranger truck (hereinafter Mr. Wilson’s “Truck”); 9. That at all times relevant hereto, Mr. Wilson had good and lawful title to his Truck; 10. That on or about October 9, 2015, Mr. Wilson transported his Truck to Probilt for repair; 11. That Mr. Wilson and Probilt agreed to perform an estimate of the repairs D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000003 of 000012 Filed 12. That at no time did Mr. Wilson enter into any written or oral agreement with Probilt or any agent thereof other than to perform an estimate of repairs for his Truck; 13. That on or about April 2016, Mr. Wilson visited Probilt and demanded the return of his vehicle; 14. That Probilt refused to return Mr. Wilson’s vehicle; 15. That on or about October 17, 2016, Mr. Wilson, by counsel, again demanded the return of his Truck, this time by certified mail. A copy of the certified letter and Presiding Judge: COM. SHERRIE BISCHOF (900109) necessary for his Truck; corresponding return receipt are annexed hereto as Mr. Wilson’s Exhibit A; and That upon information and belief, Defendants and/or some agent(s) thereof removed parts from Mr. Wilson’s Truck, and/or scrapped his Truck and/or otherwise destroyed it; -3Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000003 of 000012 16. 18-CI-001860 David L. Nicholson, Jefferson Circuit Clerk AS AND FOR A FIRST CAUSE OF ACTION THE KENTUCKY COUNSUMER PROTECTION ACT OF 1972 KRS 367.110 et seq. 17. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Sixteen (16) are repeated and realleged as if fully set forth herein; 18. That Defendants’ act(s) of removing parts from Mr. Wilson’s Truck, and/or scrapping his Truck and/or otherwise destroying it after he entrusted it to them for service constituted an unfair act or practice in the conduct of their trade or commerce; 19. That further, Defendants’ afore-described acts – while holding themselves out as purveyors of automotive services – constituted false, misleading or deceptive acts D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000004 of 000012 Filed 20. That Mr. Wilson thereby suffered an ascertainable loss of personal property (to wit, his Truck) as a result of the use or employment by Defendants of methods, acts or practices declared unlawful by KRS 367.170; 21. That Mr. Wilson seeks actual damages, double damages, statutory damages and a recovery of attorney fees against Defendants pursuant to KRS 367.220(1), (3); 22. That the acts and/or omissions of Defendants and/or their agents thereof complained of herein were wanton and/or willful, that they were conducted in such a reckless manner and with such patent disregard for the rights of Mr. Wilson, Presiding Judge: COM. SHERRIE BISCHOF (900109) or practices in the conduct of their trade or commerce; whereby Defendants are liable to him for punitive and/or exemplary damages, as exemplary damages that is fair and reasonable as shown by the evidence; and -4Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000004 of 000012 permitted by law; and, further that Mr. Wilson seeks an amount in punitive and/or 23. David L. Nicholson, Jefferson Circuit Clerk That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount in controversy exceeds the minimum threshold of the Jefferson County Circuit Court; AS AND FOR A SECOND CAUSE OF ACTION CONVERSION 24. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Twenty-Three (23) are repeated and realleged as if fully set forth herein; 25. That at all times relevant hereto, Mr. Wilson had ownership rights to his Truck; 26. That Mr. Wilson entrusted his Truck to Defendants for repair estimates; 27. That Mr. Wilson demanded return of his Truck from Defendants on two separate occasions; 28. That Defendants engaged in the wrongful act of removing parts from Mr. Wilson’s Truck, and/or scrapping his Truck and/or otherwise destroying it; 29. That Mr. Wilson was damaged thereby; 30. That the acts and/or omissions of Defendants and/or their agents thereof complained of herein were wanton and/or willful, that they were conducted in such a reckless manner and with such patent disregard for the rights of Mr. Wilson, D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000005 of 000012 18-CI-001860 Presiding Judge: COM. SHERRIE BISCHOF (900109) Filed whereby Defendants are liable to him for punitive and/or exemplary damages, as exemplary damages that is fair and reasonable as shown by the evidence; and -5Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000005 of 000012 permitted by law; and, further that Mr. Wilson seeks an amount in punitive and/or 31. David L. Nicholson, Jefferson Circuit Clerk That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount in controversy exceeds the minimum threshold of the Jefferson County Circuit Court; AS AND FOR A THIRD CAUSE OF ACTION TRESPASS TO CHATTELS 32. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Thirty-One (31) are repeated and realleged as if fully set forth herein; 33. That the Defendants intentionally dispossessed Mr. Wilson of his Truck and/or used or intermeddled with his possession of his Truck; 34. That Mr. Wilson was damaged thereby; 35. That the acts and/or omissions of Defendants and/or their agents thereof complained of herein were wanton and/or willful, that they were conducted in such a reckless manner and with such patent disregard for the rights of Mr. Wilson, whereby Defendants are liable to him for punitive and/or exemplary damages, as permitted by law; and, further that Mr. Wilson seeks an amount in punitive and/or exemplary damages that is fair and reasonable as shown by the evidence; and 36. That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount in controversy exceeds the minimum threshold of the Jefferson County Circuit D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000006 of 000012 18-CI-001860 Presiding Judge: COM. SHERRIE BISCHOF (900109) Filed Court; 37. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Thirty-Six (36) are repeated and realleged as if fully set forth herein; -6Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000006 of 000012 AS AND FOR A FOURTH CAUSE OF ACTION BAILMENT 18-CI-001860 38. David L. Nicholson, Jefferson Circuit Clerk That Mr. Wilson and the Defendants contemplated a mutual benefit bailment when Mr. Wilson entrusted his Truck to Defendants; 39. That Mr. Wilson transferred his Truck to Defendants in trust for a specific purpose (repair estimates), with an implied contract that the trust was to be faithfully executed, and that his Truck was to be accounted for when the special purpose was accomplished; 40. That Defendants were duty bound under the law to exercise ordinary care and diligence in safeguarding Mr. Wilson’s Truck; 41. That Mr. Wilson’s Truck was used for a different purpose than he intended, and/or for a longer time period and/or in a different manner or place than he D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000007 of 000012 Filed 42. That Mr. Wilson was damaged thereby; 43. That the acts and/or omissions of Defendants and/or their agents thereof complained of herein were wanton and/or willful, that they were conducted in such a reckless manner and with such patent disregard for the rights of Mr. Wilson, whereby Defendants are liable to him for punitive and/or exemplary damages, as permitted by law; and, further that Mr. Wilson seeks an amount in punitive and/or exemplary damages that is fair and reasonable as shown by the evidence; and 44. That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount Presiding Judge: COM. SHERRIE BISCHOF (900109) intended; in controversy exceeds the minimum threshold of the Jefferson County Circuit COM : 000007 of 000012 Court; -7Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk David L. Nicholson, Jefferson Circuit Clerk AS AND FOR A FIFTH CAUSE OF ACTION NEGLIGENCE 45. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Forty-Four (44) are repeated and realleged as if fully set forth herein; 46. That the Defendants owed Mr. Wilson a duty of ordinary and reasonable care to safeguard his Truck, to the same extent that a reasonably prudent person would behave under the circumstances; 47. That the Defendants clearly breached that duty, as Mr. Wilson’s Truck was destroyed; 48. That as a direct and proximate result of Defendants’ omissions and/or commissions, Mr. Wilson has suffered damages; 49. That the acts and/or omissions of Defendants and/or their agents thereof complained of herein were wanton and/or willful, that they were conducted in such a reckless manner and with such patent disregard for the rights of Mr. Wilson, whereby Defendants are liable to him for punitive and/or exemplary damages, as permitted by law; and, further that Mr. Wilson seeks an amount in punitive and/or exemplary damages that is fair and reasonable as shown by the evidence; and 50. D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000008 of 000012 18-CI-001860 That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount Presiding Judge: COM. SHERRIE BISCHOF (900109) Filed in controversy exceeds the minimum threshold of the Jefferson County Circuit AS AND FOR A SIXTH CAUSE OF ACTION BREACH OF CONTRACT 51. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Fifty (50) are repeated and realleged as if fully set forth herein; -8Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000008 of 000012 Court; 52. David L. Nicholson, Jefferson Circuit Clerk That Mr. Wilson and the Defendants entered into an agreement, specifically an agreement for Defendants to perform repair estimates on Mr. Wilson’s Truck; 53. That additionally, the agreement between Mr. Wilson and the Defendants included an implied covenant of good faith and fair dealing; 54. That Mr. Wilson performed as he was required to under that agreement; 55. That all the conditions precedent to Defendants’ performance under that agreement have been satisfied and/or such conditions have been waived by the conduct of Defendants; 56. That the Defendants are in breach of contract by failing to perform repair estimates on Mr. Wilson’s Truck; 57. D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000009 of 000012 18-CI-001860 That the Defendants are in further breach of contract by removing parts from Mr. Wilson’s Truck, and/or scrapping his Truck and/or otherwise destroying it; 58. That the Defendants have breached the implied covenant of good faith and fair dealing inherent to the agreement by committing the fraudulent, and/or oppressive and/or malicious acts as more fully described supra; and 59. That as a direct result of these acts by the Defendants, Mr. Wilson has been damaged in an amount to be determined at trial; AS AND FOR A SEVENTH CAUSE OF ACTION UNJUST ENRICHMENT 60. Presiding Judge: COM. SHERRIE BISCHOF (900109) Filed That the legal and factual allegations contained in Complaint Paragraph(s) herein; 61. That Mr. Wilson transporting his Truck to Probilt constituted a benefit conferred upon Defendants at Mr. Wilson’s expense; -9Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000009 of 000012 One (1) through Fifty-Nine (59) are repeated and realleged as if fully set forth 18-CI-001860 62. David L. Nicholson, Jefferson Circuit Clerk That Defendants’ retention of Mr. Wilson’s Truck and/or the realization of the value of his Truck as parts/scrap constitutes a resulting appreciation of that benefit; 63. That it would be inequitable to allow the Defendants to retain that benefit without any payment for its value; and 64. That as a direct result of these acts by the Defendants, Mr. Wilson has been damaged in an amount to be determined at trial; AS AND FOR AN EIGHTH CAUSE OF ACTION FRAUD 65. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Sixty-Four (64) are repeated and realleged as if fully set forth D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000010 of 000012 Filed 66. That Defendants represented to Mr. Wilson that they would perform a repair estimate on his Truck, but otherwise safeguard it; 67. That Defendants did neither; 68. That the aforesaid statements were made with knowledge of their falsity or at a minimum with complete and utter disregard and/or recklessness as to their truth or falsity; 69. That the false statements were material as Mr. Wilson’s vehicle needed repairs and comprised his sole personal vehicle; 70. Presiding Judge: COM. SHERRIE BISCHOF (900109) herein; That Defendants intended to mislead Mr. Wilson when they made the false 71. That Mr. Wilson justifiably relied on the statements made by Defendants; 72. That as a direct and proximate result of Defendants’ false representations and/or omissions, Mr. Wilson suffered substantial injuries; -10Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000010 of 000012 statements to him; 73. David L. Nicholson, Jefferson Circuit Clerk That the acts and/or omissions of Defendants and/or their agents thereof complained of herein were wanton and/or willful, that they were conducted in such a reckless manner and with such patent disregard for the rights of Mr. Wilson, whereby Defendants are liable to him for punitive and/or exemplary damages, as permitted by law; and, further that Mr. Wilson seeks an amount in punitive and/or exemplary damages that is fair and reasonable as shown by the evidence; and 74. That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount in controversy exceeds the minimum threshold of the Jefferson County Circuit Court; AS AND FOR A NINTH CAUSE OF ACTION INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS AND/OR OUTRAGE 75. That the legal and factual allegations contained in Complaint Paragraph(s) One (1) through Seventy-Four (74) are repeated and realleged as if fully set forth herein; 76. That Defendants took possession of Mr. Wilson’s Truck in trust, but then proceeded to remove parts from it, and/or scrapped it and/or otherwise destroyed it; 77. That the Defendants thereby engaged in extreme and/or outrageous conduct, thereby intentionally and/or recklessly causing severe emotional distress to Mr. D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000011 of 000012 18-CI-001860 Presiding Judge: COM. SHERRIE BISCHOF (900109) Filed Wilson; 78. That the actions of the Defendants do constitute the tort of intentional 79. That the acts and/or omissions of Defendants and/or their agents thereof complained of herein were wanton and/or willful, that they were conducted in such a reckless manner and with such patent disregard for the rights of Mr. Wilson, -11Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk COM : 000011 of 000012 infliction of emotional distress and/or outrage; 18-CI-001860 David L. Nicholson, Jefferson Circuit Clerk whereby Defendants are liable to him for punitive and/or exemplary damages, as permitted by law; and, further that Mr. Wilson seeks an amount in punitive and/or exemplary damages that is fair and reasonable as shown by the evidence; and 80. That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount in controversy exceeds the minimum threshold of the Jefferson County Circuit Court. WHEREFORE, the Plaintiff, DONALD E. WILSON, respectfully prays this honorable Court to grant relief as follows: (A) Compensatory damages in an amount in excess of the jurisdictional threshold of the Jefferson Circuit Court; (B) Double D81DEB92-5FC1-436D-9CB1-DB9BF52312F4 : 000012 of 000012 Filed permitted by law; (D) Plaintiff’s costs herein expended, including reasonable attorneys’ fees where permitted by law; and (E) For such other and further relief as may be just, proper, and equitable. Respectfully submitted, /s/ Peter J. Jannace PETER J. JANNACE Attorney for Plaintiff 807 West Market Street Louisville, KY 40202 PH: (646) 783-9810 FX: (502) 585-3539 peter.jannace@gmail.com /s/ Teddy B. Gordon by permission TEDDY B. GORDON Attorney for Plaintiff 807 West Market Street Louisville, KY 40202 PH: (502) 585-3534 FX: (502) 585-3539 tbearaty@aol.com COM : 000012 of 000012 Dated: March 29, 2018 Louisville, Kentucky Presiding Judge: COM. SHERRIE BISCHOF (900109) damages and/or statutory damages as permitted by law; (C) Punitive damages as -12Filed 18-CI-001860 03/29/2018 David L. Nicholson, Jefferson Circuit Clerk