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.
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“Wilson”), in person, by and through counsel, that as and for his causes of action
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herein, respectfully states, upon information and belief, as follows:
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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.
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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
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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;
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6.
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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
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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
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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;
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16.
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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
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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,
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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
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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,
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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
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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
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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;
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AS AND FOR A FOURTH CAUSE OF ACTION
BAILMENT
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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
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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
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intended;
in controversy exceeds the minimum threshold of the Jefferson County Circuit
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Court;
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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.
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That pursuant to Kentucky Rules of Civil Procedure, Rule 8.01, the amount
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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;
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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.
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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.
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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;
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One (1) through Fifty-Nine (59) are repeated and realleged as if fully set forth
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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
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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.
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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;
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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.
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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,
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infliction of emotional distress and/or outrage;
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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
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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
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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
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