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HomeMy WebLinkAbout955774IN THE DISTRICT COURT OF FREMONT COUNTY, WYOMING 9 JUDICIAL DISTRICT Civil No. 37815 CHARLES STARKS, individually and as owner and manager of STAR *TECH, Inc., a Wyoming corporation and STAR *TECH, Inc., a Wyoming corporation, v. Plaintiffs, GARY ANDERSON, individually; and, as agent and/or employee of ROCKY MOUNTAIN INNOVATIONS, LLC., a Wyoming Limited Liability Company; ROCKY MOUNTAIN INNOVATIONS, LLC.,; GARY ANDERSON and DEBBIE ANDERSON, Husband and Wife; and SCOTT ANDERSON, a married man; Defendants. ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR PRE- JUDGMENT WRIT OF ATTACHMENT Order Granting Motion for Prejudgment Writ of Attachment Starks v Anderson Civil No. 37815 Page 1 of 3 FREMONT COUNTY, WY FILED TH i I I T COU DEPUTY CLERK RECEIVED 9/30/2010 at 10:44 AM RECEIVING 955774 BOOK: 754 PAGE: 729 JEANNE WAGNER LINCOLN COUNTY CLERK, KEMMERER, WY THIS MATTER came on before the Court on September 13, 2010 for a hearing on Plaintiffs' Amended Motion to Enter Pre Judgment Attachment and Temporary Restraining Order. The Plaintiff was represented by John R. Vincent and Aaron Vincent of Vincent and Rutzick, Riverton, Wyoming and Defendants were represented by John Schumacher of the Law Office of John Schumacher, LLC, Riverton, Wyoming. Nature of Proceedings: Plaintiffs seek an order providing for a Pre Judgment Writ of Attachment of the assets of the Defendants as well as a Temporary Restraining Order. The parties have stipulated to the entry of a preliminary injunction to continue until further order of the Court. Therefore, the only issue before the Court is whether a pre judgment writ of attachment should issue with respect to any or all of the named Defendants. Contentions of the Parties: Plaintiffs contend that the Defendant Gary Anderson has embezzled a minimum of $1,992,000.00 and has and will continue to convert, conceal, and dispose of property belonging to Plaintiffs that would satisfy a judgment against him. The Defendant claims that the Plaintiffs JO1 NAI NC) 4 .--,CE rl I have failed to show any facts that justify the issuance of a pre judgment writ of attachment and have failed to meet the statutory requirements for issuance of the same. to Applicable Legal Principles: W.S. §1 -15 -201 sets forth the requirements for the issuance of a pre judgment writ of attachment. They are: 1) a civil action for the recovery of money; 2) an affidavit in conformance with §1- 15- 201(b); and 3) W.S. §1- 15- 104(a) requires a bond filed with the clerk in an amount fixed by the Court. W.R.C.P. 9(b) requires allegations of fraud be pled with particularity and they must be proved by clear and convincing evidence. Marchant v. Cook, 967 P2d 551 (Wyo. 1998). Discussion: The Plaintiffs' complaint is styled as a Verified Complaint for Pre Judgment Attachment, Temporary Restraining Order and Preliminary and Permanent Injunction and Recovery of Monetary Damages. There is no provision for an independent action for a Pre judgment Writ of Attachment and Defendants complain with some justification that the Plaintiffs' complaint fails to meet the requirement of a civil action seeking the recovery of money. A fair reading of Plaintiffs/ complaint and general prayer for relief includes detailed allegations of fraud, embezzlement and theft of money from the Plaintiffs in the amount of "at least" $1,992,000.00 by the Defendant Gary Anderson. Notably absent, however, are similar allegations against the Defendants Gary Anderson and Debbie Anderson as husband and wife, and Scott Anderson, a married person. The statutory grounds for a Pre judgment Writ of Attachment alleged by the Plaintiff Charles Starks in his affidavit is that the Defendant Gary Anderson admitted to him that he took $2,000,000.00 from the business Star *Tech without the knowledge or consent of Plaintiffs and that as such the debt or obligation was fraudulently or criminally incurred. The Defendant Gary Anderson maintains that the payments he received in the form of checks written to himself and signed by himself were pursuant to a verbal agreement between Gary Anderson, the Plaintiff Charles Starks, and his late wife Thelma, whereby the Defendant Gary Anderson would receive additional compensation and a share of the profits from Star *Tech in exchange for his duties and performance of behalf of the company, or the repayment of loans made by him to Star *Tech. The Court finds such assertions troubling, given that many of the checks Defendant Gary Order Granting Motion for Prejudgment Writ of Attachment Starks v Anderson Civil No. 37815 Page 2 of 3 41; Anderson admitted receiving were written by him without pre approval by Plaintiff Charles Starks. Furthermore, many of the checks that Defendant Gary Anderson issued to himself were designated by Defendant Gary Anderson in the company QuickBooks accounting program as written to "Specialty Steel" rather than the Defendant Gary Anderson. Again, the Court notes that no evidence was presented to implicate Debbie Anderson or Scott Anderson sufficient to justify the issuance of a Pre judgment Writ of Attachment against their assets. THEREFORE, IT IS HEREBY ORDERED, CONSIDERED, ADJUDGED, AND DECREED, that the Plaintiffs' Motion for Pre judgment Writ of Attachment be and the same is hereby granted as against the property of Defendant Gary Anderson, but denied as against the property of Defendants Scott and Debbie Anderson. IT IS FURTHER ORDERED that said writ be issued against the property and assets of Defendant Gary Anderson subject to attachment under Wyoming law, upon application to the Clerk of District Court and only after the Plaintiffs have filed a surety bond with the Clerk in the amount of 10% of $2,000,000.00 ($200,000.00) as provided by W.S. §1- 15- 104(a). BY: DATED this day of September, 2010. CERTIFICATE OF SERVICE This is to certify that a copy of the foregoing was served by prepaid mail upon the rsons at the' 4 sj Known addr this day of 20 BY THE COURT: Hon. Norman E. Young District Judge The State of Wyoming Order Granting Motion for Prejudgment Writ of Attachment Starks v Anderson Civil No. 37815 Page 3 of 3 Signed My term expires Jan. 1 2011 County of Fremont 1, Katie Broale Meredith, Clerk of the Ninth Judicial District Court within and for said County and In the State aforesaid Do Hereby Certify the Foregoingto be Full, True ryd c mplete copy. 947-/C2 PURPOSE /REMITTER: CHARLES H. STARKS Five Star Service GwWJflteed PAY TWO HUNDRED THOUSAND DOLLARS AND 00 CENTS TO THE ORDER OF: CLERK OF DISTRICT COURT Location: 717 RIVERTON U.S. Bank National Association Minneapolis, MN 55480 CASHIER'S CHECK No. 717500939 9338 DATE: SEPTEMBER 27, 2010 200,000.00 NON NEGOTIABLE AUTHORIZED SIGNATURE 929