07/01/2015
Today has been active. I received a call from an attorney that has yet another case against Robert and a gentleman from Cookeville that also has a case against Robert. below is the transcript of the complaint filed in Knox county for the first:
IN THE CIRCUIT COURT OF TENNESSEE
FOR THE SIXTH JUDICIAL DISTRICT KNOX COUNTY AT KNOXVILLE, TENNESSEE
Plaintiff,
vs. Docket No. ____________
JURY DEMANDED
ROBERT WAYNE BERRY, JR., an Individual d/b/a
EUROHAUS MOTORSPORTS
Defendant.
COMPLAINT FOR FRAUD, CONVERSION, AND VIOLATION OF THE TENNESSEE CONSUMER PROTECTION ACT
Plaintiffs assert claims for Tennessee common law fraud, violation of the Tennessee Consumer Protection Act, and the Tennessee common law tort of conversion against the above-named Defendant Robert Wayne Berry, Jr. and would state as follows.
I. PARTIES
1. Plaintiff is an adult resident of Shelby County, Tennessee.
2. Individual Defendant Robert Wayne Berry, Jr. is an individual who resides at 190 Yosemite Drive, Lenoir City, Tennessee 37771-8291 where he can be reached for service of process. Defendant Berry also runs a company known as Eurohaus Motorsports located at 10219 Upper Ridge Way, Knoxville, Tennessee 37932 that bills itself as a commercial operation that repairs numerous types of motor vehicles. Defendant can also be served with process at the Eurohaus address as well.
3. Eurohaus Motorsports is not registered with the Tennessee Secretary of State nor is it registered to do business in Tennessee. Upon information and belief, at the time of Plaintiff’s payment to Defendant of $6,500.00 in April, 2014 for future services, Eurohaus was not a corporate entity of any sort but was simply a trade name that Defendant Berry used as a means of conducting his mechanical repair business.
II. JURISDICTION & VENUE
4. All events which form the basis of this Complaint occurred in Knoxville, Knox County, Tennessee.
5. Venue is properly situated in Knox County pursuant to Tenn. Code Ann. 20-4-101(a) and (b).
6. This Court has jurisdiction of this matter pursuant to Tenn. Code Ann. 16-10-101.
III. DEMAND FOR JURY
7. Plaintiff demands a jury pursuant to the Tennessee Constitution and Rule 38 of the Tennessee Rules of Civil Procedure.
IV. GENERAL ALLEGATIONS AND FACTS
8. In March, 2014 Plaintiff, through Robert S. Galbraith, delivered a 1988 Porsche 911, VIN # WP0EB0911JS171003 (hereinafter “the vehicle”) to Defendant Berry’s business, located at 10219 Upper Ridge Way, Knoxville, Tennessee 37932 for diagnosis of a potential mechanical problem with the vehicle. Plaintiff did not live in Knox County and Galbraith, while driving the vehicle, had experienced mechanical issues with the vehicle requiring a mechanic. Defendant represented to both Plaintiff and Galbraith that Defendant was capable of diagnosing the problem and efficiently repairing the vehicle.
9. Defendant told Plaintiff that the vehicle needed a complete engine overhaul. Defendant led Plaintiff to think that Defendant had performed a mechanical analysis confirming that the car needed such an extensive repair.
10. After negotiation, the parties agreed that the purchase price for the work would be $7,500.00. Defendant Berry demanded $6,500.00 up front to cover parts and labor and Plaintiff reluctantly delivered a check to Defendant in the demanded amount. A copy of this check, which Defendant cashed, is attached as Exhibit 1 with the address for Plaintiff purposefully redacted from the copy lodged with this Court.
11. The parties also agreed that Defendant Berry would have the work completed to the vehicle by June 1, 2014 at which time the Plaintiff would pay Defendant the remaining $1,000.00.
12. The check for $6,500.00 was cashed by Defendant on April ___, 2014.
13. In May, 2014 Plaintiff contacted Defendant over the phone and inquired as to the status of the vehicle. Defendant assured Plaintiff that work was progressing and that they hoped to have everything accomplished by the agreed upon June 1, 2014 date. Plaintiff later discovered that this representation was false.
14. By mid-June, 2014 Plaintiff made repeated phone calls to Defendant inquiring as to when the vehicle work would be completed and Defendant continued to reassure Plaintiff that the work was nearly completed.
15. In July, 2014 Plaintiff’s uncle, Robert Galbraith, traveled to the Erurohaus facility to personally inspect the vehicle. Galbraith also had discussions with Defendant Berry about the vehicle as well.
16. In July, 2014, after Robert Galbraith’s personal inspection, Plaintiff learned from another employee of Eurohaus—who held himself out as the Service Manager-- that no work at all had been performed on the vehicle.
17. Plaintiff confronted Defendant and told Defendant that he needed to remove the vehicle from the possession of Defendant since the work still had not been performed. Defendant was reluctant to let the vehicle leave his lot and Plaintiff assured Defendant that he would not be taking the vehicle to another Knox County mechanic.
18. Defendant finally agreed to Plaintiff’s request to remove the vehicle and Plaintiff, after removing vehicle from the Defendant’s lot, demanded repayment from Defendant of the $6,500.00.
19. Upon being asked to repay the $6,500.00, Defendant admitted that he simply could not afford to refund Plaintiff’s payment as he just did not have the money.
20. Plaintiff made repeated attempts for repayment from Defendant who promised he wanted to repay the money. Defendant then sought legal counsel.
21. As of the date of filing this lawsuit, Defendant has not repaid any of the $6,500.00 owed to Plaintiff nor has he tendered any money to Plaintiff as partial repayment. Defendant’s attorney has failed to return repeated phone calls and emails requesting an update as to when repayment could begin.
22. Prior to filing this lawsuit Plaintiff spoke to several mechanics in the Knox County area about performing a diagnosis of the mechanical issue with the vehicle. These mechanics confirmed that Defendant Berry has a well-established reputation in Knox County for this type of behavior and they referenced prior employees who were not paid for work performed while working for Eurohaus. There were also reports of Defendant Berry taking parts from one vehicle and using them to repair other similar vehicles that were likewise receiving repairs and overcharging for unnecessary work.
23. Accordingly, Plaintiff also alleges that, upon information and belief, at the time that Defendant accepted the $6,500.00, the Defendant never intended to complete the work in the agreed-upon time frame nor did the Defendant ever attempt to use the funds provided to purchase any parts to complete the repair.
24. Furthermore, prior to hiring counsel, Defendant Berry admitted to Plaintiff that Defendant had not purchased any parts for the vehicle nor had he even begun attempts to repair the vehicle.
25. Plaintiff subsequently took the vehicle to a Memphis mechanic who diagnosed the smoke coming from the tailpipe as due to the engine being slightly overfilled with oil. The excess oil was drained, a new battery installed in the vehicle, and the mechanic did not find that a major overhaul was needed. Currently the car is being driven on a regular basis. Based upon these facts, Plaintiff also alleges that the Defendant’s initial diagnosis was fraudulent and intended solely to steal Plaintiff’s money without performing the requisite services.
V. CLAIM FOR VIOLATION OF THE TENNESSEE CONSUMER PROTECTION ACT TENN. CODE ANN. 47-18-101 ET SEQ.
26. All of the preceding factual allegations are incorporated into this claim.
27. The Defendant knowingly and intentionally misrepresented to Plaintiff that a deposit of $6,5000.00 would allow Defendant to purchase needed parts when Defendant had no intention of ever performing the work within the time represented—namely, June 1, 2014.
28. Additionally, based upon admissions made by Defendant to Plaintiff, Defendant never made even the first attempt to order necessary parts to repair the vehicle even though funds had already been provided to do so.
29. The Defendant also knowingly misrepresented to Plaintiff the status of the progression of the work performed on the car during May and June, 2014 when in fact no work had ever been performed.
30. Defendant has subsequently made no attempt to refund any of the $6,500.00 nor has he promised to refund the $6,500.00 nor any smaller portion of the $6,500.00.
31. The above-mentioned actions constitute a violation of Tenn. Code Ann. 47-18-104 (1), (2), (5), (7), (12) and (19).
VI. TENNESSEE COMMON LAW FRAUD
32. All of the preceding factual allegations are incorporated into this claim.
33. Defendant took pre-payment for services that he never intended to perform.
34. Defendant then continued to intentionally mislead the Plaintiff by deceptively promising Plaintiff that the work on the vehicle was coming along smoothly and that the vehicle would be ready by the June 1, 2014 date when in fact no parts had ever been ordered and no work ever performed on the vehicle.
35. The above-mentioned behavior constitutes intentionally deceptive conduct that constitutes fraud and should be punished with punitive damages.
VII. TENNESSE LAW COMMON LAW TORT FOR CONVERSION
36. All of the preceding factual allegations are incorporated into this claim.
37. The Defendant has received money from the Plaintiff and has not provided the mechanical services that Plaintiff was promised as consideration for the money, thereby preventing Plaintiff from use of the car and also deprived Plaintiff of the $6,500.00 previously paid to the Defendant.
38. As of the date of the filing of this Complaint, Defendant has not repaid to Plaintiff any of the money although he has admitted that he owes Plaintiff the $6,500.00.
VIII. PRAYER FOR RELIEF
WHEREFORE PREMISES CONSIDERED, the Plaintiff respectfully prays for the following:
1. That proper process and service issue as provided by law;
2. Plaintiffs receive a compensatory damage award for $6,500.00 for the repayment of the money, that Plaintiff also receive pre-judgment interest as the amount in dispute is a sum-certain, and that the Plaintiff receive a Punitive Damages award of not less than $30,000 with Plaintiff promising to donate any punitive damage award that is collected from Defendant to Legal Aid of East Tennessee which provides civil legal assistance to the elderly, abused and low income persons and those who cannot afford a private attorney.
3. Award Plaintiff his reasonable attorney fees and treble damages pursuant to the Tennessee Consumer Protection Act; and
4. Award Plaintiff his discretionary costs in this cause and any other relief that he is legally entitled to receive.
Respectfully submitted,
_________________________
COST BOND
I hereby acknowledge myself as surety in this cause for costs.
____________________________________
