Вы находитесь на странице: 1из 11

STATE OF MICHIGAN

rN THE 3RD JUDTcTAL crRcurr couRT

LISA WOOD,

V.

Plaintiff

MICHAEL ILITCH, JIMMY SHEMAMI,

ILITCH HOLDINGS, INC A

Michigan Corporation, RICHARD FENTON

and, LITTLE CAESAR ENTERPRISES, lNC.

a Michigan Corporation

Jointly and severally

Defendants

Douglas A. McKinney (P35430)

Attorney for Plaintiff

P. O. Box 214145 Auburn Hills, Michigan 48321-4145 (248) 587-5075

9llood, l,laa v IJITTIII CEA8AR8 INC

Hon. John H Gillls, Jr.

,

1211212009

| fl]il lilt ilil illlil llil rfi il ilil lillt rillt lllt ililil ilt ilril ilrl

00.0t8s37.c2

FIRST AMENDED COMPLAINT

NOW COMES Plaintiff LISA WOOD by and through her attorney Douglas A.

McKinney, hereby brings the following complaint against defendants MICHAEL lL|TCH,

JIMMY SHEMAMI, ILITCH HOLDINGS, INC a Michigan Corporation, RICHARD

FENTON and, LITTLE CAESAR ENTERPRISES for (i) breach of contract; (ii)

conspiracy (iii) misappropriation of trade secrets; (iv) breach of fiduciary duties; and (v)

negligence in failing to protect or defend the trade secret and intellectual property of

Plaintiff Lisa Wood. in support thereof avers as follows:

JURISDIGTION AND VENUE

1. Defendant, Michael llitch is a resident of the city of Bingham Farms, County of

Oakland, State of Michigan.

2.

Plaintiff's action arises out of defendant LITTLE CAESAR ENTERPRISES, lNC,

its agents, owners and employee's of their fiduciary and contractual duties owed

to Plaintiff, Lisa Wood.

3. Plaintiff, Lisa Wood is an individual currently residing in the Township of

Harrison, County of Macomb Michigan.

4. Defendant Jimmy Shemami for all times relevant herein was an employee of

Corporate Defendant and was employed in the City of Detroit, County of Wayne,

State of Michigan.

5. Defendant ILITCH HOLDINGS, lNC. a Michigan Corporation with its principal

place of business located in the City of Detroit, County of Wayne,

State of Michigan.

6. Defendant, Richard Fenton is an employee of Corporate Defendant and is

employed in the City of Detroit, County of Wayne State of Michigan.

7. Defendant, Little Caesar Enterprises, Inc. is a corporation with its principal place

of business located in the City of Detroit county of Wayne State of Michigan.

8. The, defendants' acts giving rise to this dispute occurred at least in part within

the City of Detroit, County of Wayne, State of Michigan and, on information and

belief defendants regulady conduct business within the City of Detroit, County of

Wayne, State of Michigan. Venue is therefore proper in this Court.

9. Although the harm caused by Defendants' wrongful acts is not fully

ascertainable, Plaintiff's damages i exceed $25,000, exclusive of costs, interest

and attorney fees.

10. This, Court has jurisdiction since this action is between parties of the same state

and the amount in controversy exceeds $25,000,

COMMON ALLEGATIONS

11. Plaintiff, Lisa Wood developed a restaurant concept that involved a unique

process of selling pizza drive through on the water.

12. At the insistence of Ronald llitch, son of Defendant Michael llitch, this concept

was presented to the owner of Corporate Defendant Michael llitch's attorney by

Plaintiff.

13. On or about January/February 2004 the information concerning Plaintiff's

marketing and business strategies, and various other intellectual properties were

described to the agents and attorneys of Defendant Little Caesars including its

president David Scarvano and attorney Jay Bielfield,

14. In addition Plaintiff provided Defendant Little Caesars art work and proposed

menus for her business concept "Pizza On The Water" and/or "Pizza By Boat"

through its trademark attorney of Corporate Defendant Martin Caruso.

15. This, information concerning was highly confidential and not known in the public

domain.

16. The, Defendants made specific promises to the Plaintiff Lisa Wood that including

but not limited to the concept, slogans and artwork created by Plaintiff would be

protected by the use of trademark and/or copyright laws for future use and

Plaintiff executed that agreement.

17. The agreement was reduced to writing by the Defendant.

18. The Plaintiff accepted and the Defendants did execute said agreement.

19. That in reasonable reliance upon these expressed promise, and the covenants

contained in the written agreements the Plaintiff described in detail her concept,

the slogans she had developed and turned over to Defendant the unique artwork

created in her own hand,

20. It had been represented by Defendants that all necessary legal steps had been

or would be taken to secure trademark and/or copyright protection for this

intellectual property.

21. Plaintiff justifiable relied upon the representations aforesaid.

22. Defendants represented and agreed as follows:

a. The concept described as "Pizza On The Water" and/or "Pizza By Boat"

would be promoted as a new marketing method for which the Plaintiff would

earn royalties as other corporate stores and franchisee stores;

b. Plaintiff provided slogans to be used in advertisement and promotion to wit:

"Ahoy! Little Caesars is afloat now you can get pizza pizza by boat.", and

"Now you can get a boatload of Pizza.";

c. Plaintiff was to receive at no costs at least four franchise locations in Michigan

to her for the purpose of further marketing and development of the concept "Pizza On The Water" and/or "Pizza By Boat" and utilization of the slogans

and the rights

to franchise stores in other states such as Florida.

d. In consideration and performance of the terms of the agreement of this agreement, Plaintiff was to and did assign her trademark and/or copyright

rights to Corporate Defendant as agreed.

23. Thereafter, at the direction of Defendants' agent David Scarvano Plaintiff began

study to determine the water traffic on the waterways in the Detroit Metro area

and to search for appropriate locations for the franchise stores to utilize the

"Pizza On The Water" and/or "Pizza By Boat" concepts.

24. fn July 2004 the full commitment of support was obtained from Defendant

Michael llitch that the concept would proceed.

25.

26.

Shortly after I this commitment the relationship between the Plaintiff and Ronald

llitch terminated.

Due to injury and trauma the Plaintiff was unable to continue to actively pursue

the opening of the franchise stores of Defendant and could no longer continue to

aid in the development of the concept "Pizza On The Water" and/or "Pizza By

27.

28.

29.

30

Boat" for a period of time.

In July 2004 the full commitment of support was obtained from Defendant

Michael llitch that the concept would proceed.

After a substantial period of recovery Plaintiff inquired as to the current status of

the agreements she had made with Defendants.

Plaintiff was informed that Defendant was balking at going fonvard with the

agreements made

Thereafter, Plaintiff learned that a competing pizza company began to utilize the

sales and marketing concepts presented to Defendants including a nearly

31.

32.

33.

identical slogan and menu.

Plaintiff demanded that the Defendant defend the intellectual property assigned

to Defendant.

Defendants responded to this demand with inaction.

Plaintiff was informed that the Defendant may not have protected the unique

marketing process, her slogans and/or art work as represented

34.

Plaintiff is fearful that Defendant may not have properly protected the intellectual

property she assigned to Defendant and that she may now be left with no ability

to benefit from the same.

35. Upon information and belief in August 2004 Defendants through their agents

seized items of personal property and the same have not been returned.

COUNT I

BREACH OF CONTRACT

36. Plaintiff, Lisa Wood re-alleges each and every allegation contained in paragraphs

1 through 35, inclusive, of its Complaint as though completely set forth herein.

37. Plaintiff and Defendants entered into a contract for the protection, development

and marketing of the business concept "Pizza On The Water" and/or "Pizza By

Boat".

38. That Plaintiff has performed all of her contractual obligations including but not

limited to disclosing and assigning the marketing concepts, intellectual property

and trademark and copy write material.

39. The Defendants have breached the contract by failing to protect the intellectual

property of the Plaintiff providing four (4) fully functioning franchises with the

"Pizza On The Water" and/or "Pizza By Boat" and marketing and promoting the

concept to other franchisees.

40. As a proximate result of Defendants' breach of the contract Plaintiff has been

damaged including but not limited to the following failure to commence the

business "Pizza On The Water" and "Pizza By Boat" protect by trademark and/or

copyright the intellectual property transferred, lost profits, lost royalties.

41. That the amount in controversy exceeds Twenty Five Thousand and 00/100

($25,000.00) dollars and is otherwise within the jurisdiction of this Court.

WHEREFORE, Plaintiff requests a judgment in whatever amount against the

Defendants as shall be found from the proofs in excess of Twenty Five Thousand and

00/100 ($25,000.00) dollars plus cost interest and attorney fees and such other relief

this Court shall deem just necessary and proper.

COUNT II

CIVIL CONPIRACY

42. Plaintiff re-alleges each and every allegation contained in paragraphs 1 through

41, inclusive, of its Complaint as though completely set forth herein.

43. That for some time prior to August 2, 2004 with the permission of Ronald llitch

the Plaintiff was residing his Troy, Michigan home.

44. At the same time Plaintiff also maintained a separate residence in the City of

West Bloomfield, Michigan.

45. That on or about August 2, 2004 the Plaintiff was removed from the Troy,

Michigan home of Ronald llitch leaving substantial personal belongings including

copies of the executed written contracts with the Defendants.

46. Also contained in the Troy, Michigan home was evidence of a crime that had

been committed bY Ronald llitch.

47. That on or about August 2, 2004 upon information and belief the Defendants

through their agents, servants and/or employees refused entry into the home of

Ronald llitch by the proper authorities.

48. That for approximately 3 days thereafter upon information and belief the personal

property of the Plaintiff was examined, secreted and or destroyed by Defendants

including but not limited to papers, agreement and documentary evidence

germane to this lawsuit.

49. The Defendants have asserted that the written contracts executed by the parties

never existed.

50. Upon information and belief the intent, motive and ulterior purpose of the denial

of the existence and the execution of the agreements by the parties aforesaid

was and is as follows:

a. to conceal the full extent of the intentional torts, and/or crimes

committed by Ronald llitch.

b. to establish the pretext of deniability on the date and time aforesaid

as to the agreements of the parties; and

c. to establish a defense to any legal remedy anticipated to be sought

by the Plaintiff based on the breach by the Defendants of the

agreement of the parties.

51. That the willful and intentional

acts of the Defendants demonstrate an

agreement, or preconceived plan, to do an unlawful act, to wit: to secure the

Troy, Michigan home of Ronald llitch and conceal and or destroy property and

documentary evidence owned by the Plaintiff to deprive her of her contractual

and legal rights.

52. The actions of the Defendants seek to accomplish a legal purpose by illegal

means or in the alternative an illegal purpose by legal means.

53 That as a direct and proximate result of the actions taken by the Defendants the

Plaintiff has been damaged including but not limited to the following ways:

a. Depravation of

b. The loss or destruction of said property

ProPertY

rights

c. The loss of evidence to pursue her legal remedies.

WHEREFORE, Plaintiff requests a judgment in whatever amount as shall be found from the proofs in excess of Twenty Five Thousand and 00/100 ($25,000.00)

8

dollars plus cost interest and attorney fees and such other relief this Court shall deem

just necessary and proper.

54.

couNT lll

PROMISSORY ESTOPPEL

Plaintiff re-alleges each and every allegation contained in paragraphs 1 through

53, inclusive, of its Complaint as though completely set forth herein.

55

That as a result of promises made by Defendant Plaintiff revealed and assigned

intellectual property including a business concept, slogans, research and art work

56.

57.

58.

developed by her.

Plaintiff reasonably relied upon the promises and representations of the

Defendants.

Defendants promises and representations were either false when made or

became false by their own actions.

As a proximate result of Defendants promises and representations the Plaintiff

has been and will continue to be irreparably injured since a competitor has began

use of the intellectual property developed by Plaintiff and upon information and

59.

belief Defendants failure to protect the same.

That the amount in controversy exceeds Twenty Five Thousand and 00/100

($25,000.00) dollars and is otherwise within the jurisdiction of this Court.

WHEREFORE, Plaintiff requests a judgment in whatever amount as shall be found from

the proofs in excess of Twenty Five Thousand and 00/100 ($25,000.00) dollars plus

cost interest and attorney fees and such other relief this Court shall deem just

necessary and proper.

COUNT IV

BREACH OF FIDUCIARY DUTIES

60. Plaintiff re-alleges each and every allegation contained in paragraphs 1 through

59, inclusive, of its Complaint as though completely set forth herein.

61. The Defendants came into possession of the intellectual property of the Plaintiff

as such Defendants owed the following fiduciary duties to Plaintiff:

a. A duty to protect and not allow disclosure of Plaintiff's intellectual

property and confidential information to a competitor; and

b.

To utilize the intellectual property for the benefit of Defendants and

Plaintiff.

62. Defendants have breached each and every one of the foregoing duties:

a. By allowing the intellectual property to be disclosed or utilized by a

competitor.

b. By failing to take action to protect Plaintiff's intellectual property from use

by a comPetitor

c. By failing to utilize and develop the intellectual property for the benefit of

the Plaintiff.

63. As a direct and proximate result of Defendant's breach of his fiduciary duties

owed to Plaintiff has suffered and will continue to suffer irreparable harm and

damages including but not limited to loss profits and lost royalties.

WHEREFORE, Plaintiff requests a judgment against the Defendants in whatever

amount as shall be found from the proofs in excess of Twenty Five Thousand and

00/100 ($25,000.00) dollars plus cost interest and attorney fees and such other relief

this Court shall deem just necessary and proper.

10

COUNT V

NEGLIGENCE

64. Plaintiff re-alleges each and every allegation contained in paragraphs 1 through

63, inclusive, of its Complaint as though completely set forth herein.

65. Defendants owed a duty to the Plaintiff to perform business function in keeping

with industry standards.

66. Defendants knew that the Plaintiff was relying upon the Defendants to protect her

intellectual property and assumed the duty to so protect the same.

67. Defendants breached their duties including but not limited to failing to protect and

or defend the intellectual property of Plaintiff.

68. As a direct and proximate result of the negligence of the Defendants the Plaintiff

has been damaged including but not limited to the use by a competitor of the

intellectual property of the Plaintiff.

WHEREFORE, Plaintiff requests a judgment in whatever amount as shall be

found from the proofs in excess of Twenty Five Thousand and 00/100 ($25,000.00)

dollars plus cost interest and attorney fees and such other relief this Court shall deem

just necessary and proper.

Dated: January 22,2009

Doug

'w

Kinney (P354

Attorneys for Plaintiff

P. O. 8ox214145

Auburn Hills, Ml 48321-4145

(248) 587-5075

ll