i CauseNo. ,7 5 1% UNIVERSAL CINEMA SERVICES, INC., IN THE DISTRICT COURT Plaintiff, vs. . . JAMES T. DUFFY, Individually; CINEMA Q, {gg, GRILL SYSTEMS, BACKLOT TARRANT COUNTY, MANAGEMENT, THE gl RESTAURANT ENTERTAINMENT YX GROUP, ENTERTAINMENT FILM A ei WORKS, ENTERTAINMENT rig DEVELOPERS, INC., gg Defendant. JUDICIAL DISTRICT ORIGINAL PETITION Plaintiff, Universal Cinema Services, Inc., tiles this Original Petition, complaining of Defendants James Duffy, Individually, Cinema Grill Systems, Inc., Backlot Management, Inc., The Restaurant Entertainment Group, Inc., Entertainment Film Works, Inc., and Entertainment Developers, Inc. (together, "Defendants"), and in support thereof shows the following: 1. Discovery is intended to be conducted under Texas Rule of Civil Procedure 190.3 (Level 2). Pursuant to Rule 216 of the Rules of Civil Procedure, Plaintiff hereby demands a jury trial, and has paid the requisite fee. Parties 2. Plaintiff is a Texas corporation whose principal place of business is in Tarrant County, Texas. 3. Defendant James T. Duffy is an individual residing at 990 Edgewater Drive, Atlanta, Georgia 30328. As a non-resident individual doing business in the state of Texas, but who does not maintain a residence or place of business in the state of Texas, and who has not ORIGINAL PETITION PAGE I r~ rs designated or maintained a designated or registered agent for service of process in the state of Texas, Defendant James T. Duffy may be served with process pursuant to Section l7.044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 787ll-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to Defendant James T. Duffy's home: 990 Edgewater Drive, Atlanta, Georgia 30328. 4. Defendant Cinema Grill Services, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the state of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but who does not maintain. a designated or registered agent for service of process in the State of Texas, Defendant Cinema Grill Services, Inc., may be served with process pursuant to l7.044(b) of the PRACTICES AND Rnivraoras Conn, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's home office: P.O. Box 218467, Atlanta, Georgia 30358. 5. Deibndant Backlot Management, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but who does not maintain a designated or registered agent for service of process in the state of Texas, ORIGINAL PETITION PAGE 2 Defendant Backlot Management, Inc., may be served with process pursuant to 17.044(b) of the PRACTICES AND Rarvraniss Conn, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 787l1--2079, who should then provide notice pursuant to Section 17.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's home office: P.O. Box 28467, Atlanta, Georgia 30358. 6. Defendant The Restaurant Entertainment Group, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but not required to maintain a designated or registered agent for service of process in the State of Texas, Defendant The Restaurant Entertaimiient Group, Inc., may be served with process pursuant to Section 17 .044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section 17.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's`home office: P.O. Box 28467, Atlanta, Georgia 30358. 7. Defendant Entertainment Film Works, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is 5920 Roswell Road NE, Atlanta, Georgia 30328. As a foreign corporation doing business in the State of Texas, but not required to maintain a designated or registered agent for service of process in the State of Texas, Defendant Entertainment Film Works, Inc., may be served with process pursuant to ORIGINAL PETITION PAGE 3 A Section 17.044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 7871l--2079, who should _then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to the mailing, address of Defendant's home office: 5920 Roswell Road NE, Atlanta, Georgia 30328. 8. Defendant Entertainment Developers, Inc., is a Nevada corporation that {does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is 13720 Six Mile Cyprus, Ste. Fort Meyers, Florida 33912. As a foreign corporation doing business in the State of Texas, but not required to maintain a registered agent for service of process in the State of Texas, Defendant Entertaimnent Developers, Inc., may be served with process pursuant to Section l7.044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 787l1--2079, who should then provide notice pursuant to Section 17.045(a) of the Civil Practices and Remedies Code and forward suit papers and citation to said Defendant, at the mailing address of Defendant's home office: 13720 Six Mile Cyprus, Ste. Fort Meyers, Florida 33912. Jurisdiction and Venue A 9. This Court has jurisdiction over Defendants because all Defendants engaged in business in Tarrant County, Texas, by conspiring to defraud Plaintiff in Tarrant County, Texas, committing fraud and misrepresentation in Tarrant County, Texas, and entering into a series of contractual agreements with Plaintiff (whether directly or through other Defendants as agents), payment under which was to be made to Plaintiff in Tarrant County, Texas, and the matters at issue herein arise out of those actions. This Court has jurisdiction over the amount in ORIGINAL PETITION PAGE 4 controversy because the damages sought are within this Court's jurisdictional limits. Venue is proper in Tarrant County, Texas because all or a substantial part of the acts or omissions giving rise to the Plaintiff' claims occurred in this county, and Plaintiff is located in this county. Background 10. Plaintiff is a Tarrant County company in the business of designing and constructing the finished interiors of movie theatres, including, among other things, the installation of movie screens, projection equipment, sound systems, and seating. ll. The corporate Defendants, (together, the '?Duffy Entities") are nominally five . separate entities incorporated under Georgia law (in the cases of Cinema Grill Services, Inc., Backlot Management, Inc., Entertainment Film Works, Inc., and The Restaurant Entertainment Group Inc.) and Nevada law (in the case of Entertainment Developers, Inc.). On information and belief Defendants are operated as a joint business enterprise, and/or as alter egos of Defendant Duffy. Defendant Duffy is listed with the Georgia Secretary of State as the chief executive officer, chief financial officer, and secretary of Cinema Grill Services, Inc., Backlot Management, Inc., and The Restaurant Entertainment Group, Inc. All three of these Defendant entities list the same post office box in Atlanta, Georgia, as their mailing address, and all three list the same agent for service of process within the state of Georgia: Sonya White, 228 Water Tank Road, Atlanta, Georgia 30132. On information and beliefi Defendant Entertainment Film Works, Inc., and Defendant Entertainment Developers, Inc., are also wholly owned and controlled by Duffy. On information and belief, Defendant Duffy used the Duffy Entities, and possibly other entities, in a concerted effort to fraudulently deprive Plaintiff of its goods and services, with the intention from the outset of never paying Plaintiff for said goods and services. ORIGINAL PETITION PAGE 5 I2. In or around October 2003, Plaintiff was contacted in Tarrant County, Texas, by representatives of Defendants regarding a possible arrangement between Plaintiff and Defendants by which Plaintiff would provide certain materials and labor for the finish--out of three separate theater projects. Defendants were developing said theaters in Rocky Mount, North Carolina, Columbus, Ohio, and Cincinnati, Ohio (the "Projects"). Ultimately, after submitting a credit application under the name of Defendant Cinema Grill Services, Inc., along with industry references (including a credit reference from Defendant Backlot Management, Inc.) to Plaintiff Defendants established an account with Plaintiff under which Defendants would submit oral or written purchase orders for equipment and installation thereof for the Projects which Plaintiff could accept or reject as Plaintiff determined (referred to collectively herein as the "Contracts"). As Plaintiff understands the Projects, Defendants acted as the general contractor for the Projects, and acted as the liaison between all subcontractors (including Plaintiff`) and the owners of the retail outlets in which the Projectswere located, On information and belief, either Defendants or separate entities set up by Defendants were to be the operators of the Projects once the theatres were up and running. Upon information and belief the only theater still in operation of the three is the Cincinnati theater, operated by Defendant Entertainment Developers, Inc. Upon information and belief, Defendant Entertainment Developers, Inc., acted through the other Defendants as its agents, including Defendants Duffy and Cinema Grill Services, Inc., to solicit goods and services from Plaintiff. 13. Under the terms of the Contracts, Defendants were to pay amounts due and owing within 2l days of receipt of the invoices. Payment was to be made to Plaintiff in Texas. Over a period of several months, Plaintiff provided substantial amounts of labor and material to the three Projects at Defendants' request, and billed Defendants accordingly. Over the course of the ORIIGINAL PETITION PAGE 6 three Projects, Plaintiff received only two payments from Defendants, in the form of two checks from Defendant Backlot Management, Inc, signed by Defendant Duffy. 14. As the amounts due and owing (yet unpaid) on Defendants' account began to age, employees of Plaintiff contacted Defendants to inquire as to the state of Defendants' finances and the status of the Projects. Plaintiffs were assured repeatedly by Defendants, including Defendant Duffy, that Defendants had the ability and intention of paying all amounts owed to Plaintiff and that would be incurred as a result of future orders. Specifically, Defendant Duffy stated to Plaintiff on oneioccasion that Defendants would pay Plaintiff as soon as the landlord on one of the Projects paid Defendants, which was supposed to happen in a matter of one or two weeks. On another occasion, Defendant Duffy stated to Plaintiff that he expected to receive a check soon and would pay Plaintiff when he got it. On still other occasions, Defendant Duffy pleaded with Plaintiff to keep Defendants' account open because he had "some money coming" and would be able to pay Plaintiff In reliance on Defendant Duffy's (upon information and belief, false) representations in this regard, Plaintiff fulfilled additional orders from Defendants relating to the Projects. 15. Eventually, the past-due amounts owing to Plaintiff on Defendants' Projects rose to $402,24399, and Plaintiff refused to provide additional goods or services to Defendants until paid. Despite repeated demands by Plaintiff to pay these amounts, Defendants refused. Eventually, Plaintiff retained the services of counsel, who sent a written demand for payment to Defendants. Defendants failed and refused, and continue to fail and refuse, to pay the amounts due and owing to Plaintiff 16. Incredibly, when confronted with a demand for payment on the account with Plaintiff, Defendant Duffy responded in a letter dated April 29, 2004, that "Cinema Grill ORIGINAL PETITION PAGE 7 Systems, lnc., did not contract with Universal Cinema Services, lnc." for the labor and material on which the demand for payment was made. Defendant Duffy states in the same letter that Defendant Cinema Grill Systems, Inc., "licenses to others the right to operate Cinema Grill" and that he thinks Plaintiffs "dealings were with the Operator/Licensee, and that any question regarding any claims or obligations need to be directed to the appropriate party." This response, while clearly contrary to the facts (because Cinema Grill Systems, Inc. is the name in which Defendants applied for an account with Plaintiff, and the name in which Defendants were invoiced), serves to illustrate the shell game that Defendants attempted to play on Plaintiff. On information and belief, Defendants entered into the Contracts with Plaintiff, and induced Plaintiff into said Contracts, with the present intention not to pay the charges incurred under the Contracts. Moreover, on information and belief, Defendants conspired (at Duffy's direction) to structure the transactions in such a way that one Defendant entity would act nominally as the contracting party with Plaintiff while another entity entered a lease on a given Proj ect, while yet another entity acted as the eventual operator of each Project, all with the intent of jointly defrauding Plaintiff and leaving Plaintiff no readily available recourse when Defendants ultimately defaulted on the Contracts. Conspiracy 17, Plaintiff incorporates by reference the allegations contained in paragraphs 1- 16 herein as if fully set forth at length. A 18. Tl1e actions of Defendants as described above amount to a conspiracy to defraud Plaintiff. On innirmation and belief, Defendants reached a meeting of the minds to act in concert with one another to fraudulently induce Plaintiff into providing goods and services for which Defendants had no intention to pay. At least two of the Defendants, James T. Duffy and Cinema ORIGINAL PETITION PAGE 8 Grill Services, Inc., committed overt acts of fraud and misrepresentation in furtherance of said conspiracy, for the benefit of themselves and the other Defendants, resulting in monetary damages in an amount within the jurisdictional limits of the Court, for which Plaintiff sues. Fraudulent Misrepresentation/Negligent Misrepresentation and Exemplary Damages 19. Plaintiff incorporates by reference the allegations contained in paragraphs 1- 18 herein as if fully set forth at length. 20. Defendants herein colluded to defraud Plaintiff of its goods and services by representing to Plaintiff a willingness and ability to pay all sums that would become due and owing with no intention and/or ability to actually pay said sums. Furthermore, Defendant Duffy made numerous representations to Plaintiff that the goods and services being provided by Plaintiff would be paid for, even after Plaintiff became concerned about Defendants' growing late balance and asked for assurances from Defendants of Def`endants' willingness and ability to pay amounts due and owing. Defendants made such representations despite the fact that they knew they had no intention of paying the amounts due and owing, and/or despite the fact that they knew or should have known they had no ability to pay such amounts. Plaintiff repeatedly relied on these misrepresentations, first in entering into the Contracts to begin with, and then in continuing forward in providing goods and services to Defendants. 21. As a direct and proximate result of the misrepresentations by Defendants, Plaintiff has incurred damages within the minimum jtuisdictional limits of the court, for which sums Plaintiff now sues. Ftuthennore, because of Defendants' willfully fraudulent conduct, Plaintiff is entitled to an award of exemplary and punitive damages, for which it sues. ORIGINAL PETITION PAGE 9 Breach of Contract . 22. Plaintiff incorporates by reference the allegations contained in paragraphs 1- 2l herein as if fully set forth at length. 23. The behavior described above constitutes material breach of the Contracts on the part of Defendants. 24. The Plaintiff complied with its obligations pursuant to the Contracts, and provided materials and labor to Defendants. However, Defendants failed to fulfill their contractual obligations by failing to pay all amounts due and owing as agreed. 25. Defendants' failure to comply with their contractual obligations as described herein constitutes breaches of the Contracts, which have proximately caused damages to the Plaintiff in an amount within the jurisdictional limits of this court, for which sums the Plaintiff now sues. 26. All conditions precedent have been performed or have occurred as required by TEX. R. Civ. P. 54. Unjust Enrichment/Quantum Meruit 27. The Plaintiff incorporates by reference the allegations contained in paragraphs l- 26 herein as if fully set forth at length. 28. In addition and in the alternative to the causes of action set out above, Plaintiff asserts a right to recover the fair market value of the goods and services provided to Defendants under the doctrine of unjust enrichment. Defendants have received the benefit of Plaintiffs goods and services without compensating Plaintiff. For this reason, Plaintiff sues for quantum . meruit damages hom Defendants in an amount within the jurisdictional limits of this Court. Alter Ego ORIGINAL PETITION I PAGE 10 29. Plaintiff incorporates by reference the allegations contained in paragraphs l- 28 herein as if fully set forth at length. 30. Upon information and belief, Defendant Duffy operates the Duffy Entities merely as alter egos of himself and uses the Defendant entities in furtherance of his fraudulent schemes. For these reasons, the Court should End that the actions and liabilities of the Duffy Entities are attributable in all respects to Duffy individually. Damages 3l. As a direct and proximate result of Defendants conduct, as set forth herein, Plaintiff has been damaged in an amount within this court's jurisdictional limits. Attorney's Fees 32. Plaintiff incorporates by reference the allegations contained in paragraphs l- 30 herein as if fully set forth at length. 33. Due to the actions of Defendants as set out in this petition, Plaintiff has been forced to retain the services of the undersigned law firm. Plaintiff has agreed to pay the undersigned a reasonable fee for its services necessarily rendered and to be rendered in pursuing Plaintiffs claims against Defendants. 'Therefore, pursuant to TEX. Civ. PRAC. REM., CODE 38.00], at seq., and other Texas law, Plaintiff is entitled to an award of reasonable attorneys' fees and expenses in an amount to be established at trial. Prayer WHEREFORE, Plaintiff respectfully requests that Defendants be cited to appear and answer herein, and that upon final hearing hereofz- Plaintiff recovers its actual damages suffered as a result of Defendants' civil conspiracy, fraudulent and negligent breach of contract; ORIGINAL PETITION PAGE ll Plaintiff recovers exemplary and punitive damages for Defendants' knowing and willful conspiracy and fraud; Plaintiff recovers the value of the goods and services provided to Defendants under quantum meruit; (cl) Plaintiff recovers all its damages, costs, and expenses, including reasonable and i necessary attorneys' fees and expenses incurred in bringing this action; Plaintiff recovers pre-judgment and post-judgment interest at the maximum rate allowed by law; and Plaintiff have and recover any and all other relief, special or general, legal or equitable, as the Court deems appropriate. Respectfully Submitted, le ta Bar 0. 07321900 Jeffrey R. Allen State Bar No. 24006751 GRACEY, RATLIFF Mirrniz, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 Te1ephone:(817) 882-7616 Facsimi1e:(817) 795-4864 ATTORNEYS FOR PLAINTIFF isuonmpxuwivansxr emnnx sniwrciasmusry a an petitiortdoc ORIGINAL PETITION PAGE 12 I i f` rx RATLIFF MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817) 7954866 Telecopier (817) 795--4864 Jeffrey R. Allen Direct Email Dircct Dial (817) 882-7616 August 24, 2004 Tarrant County District Clerk Tarrant County Justice Center 401 W. Belknap Fort Worth, Texas 76196 if Re: Universal Cinema Services, Inc. v. James Duffy, et. al. Qij; ji] gg; il.} Dear Clerk: to til Enclosed for filing with the couit in connection with the iifiattdtijiis original and 13 copies of Plaintiffs Original Petition, along with a check for $22?7?20 for the` filing fee and the issuance of 6 citations for service through the Secretary of State. Please issue citations for service through the Secretary of State on the following: 1. James T. Duffy 2. Cinema Grill Services, Inc. 3. Backlot Management, Inc. 4. The Restaurant Entertainment Group, Inc. 5. Entertainment Film Works, Inc. 6. Entertainment Developers, Inc. Please return a iile--stamped copy ofthe petition and the citations to the undersigned. Thank you for your assistance. Sincerely, I RA:css Enclosure CINEMA et al County Clerk i A August 24, 2004 Page 2 Jack Panzeca Vit! Facsimile I0 81 7; 633.2190 Stan Lamb Laura Langford Universal Cinema Services, Inc. l205 Corporate Drive East Arlington, Texas 76006 Larry Fowler, Finm Paul Johnson, Firm A . Cause No. 096-2073 65-04 UNIVERSAL CINEMA SERVICES, INC., IN THE DISTRICT COURT Plaintiff vs. . . . JAMES T. DUFFY, Individually; CINEMA GRILL SYSTEMS, BACKLOT TA.RRANT COUNTY, TEXAS MANAGEMENT, THE RESTAURANT ENTERTAINMENT GROUP, ENTERTAINMENT FILM WORKS, ENTERTAINMENT DEVELOPERS, Defendant. 96TH JUDICIAL DISTRICT MOTION FOR ENTRY OF DEFAULT JUDGMENT COMES NOW Universal Cinema Services, Inc., Plaintiff herein, and files this Motion for Entry of Default Judgment complaining of Defendants James Duffy, Individually, Cinema Grill Systems, Inc., Backlot Management, Inc., The Restaurant Entertainment Group, Inc., Entertainment Film Works, Inc., and Entertainment Developers, Inc. (together, "Defendants"), and in support thereof shows the following: Movant is Universal Cinema Services, Inc., Plaintiff, who moves the Court to enter a default judgment against Defendants, jointly and severally, pursuant to rule 239 of the Texas Rules of Civil Procedure. in Plaintiff is entitled to be granted a default judgment against Defendants: grounds would show the Court the following: W. {Tilt; wr :2 a. Defendants continues to be indebted to Plaintiff as sp??ifica`H`y pleaded in Plaintiff original petition on file in this cause. b. Defendants have been duly served with citation in this cause, and the proof of service as required by law has been on file with the clerk of this Court for ten days, exclusive of the day of filing and PLAINTIFFS MOTION TO ENTRY OF DEFAULT JUDGMENT PAGE 1 i the day of judgment. c. Defendants have neither answered nor appeared within the time allowed by law and have wholly defaulted. Plaintiff has attached the following documents to this motion and enoloses herewith a proposed Default Judgment for entry by the Court: 1. Plaintiffs Certificate of Last Known Mailing Address. 2. Plaintiffs Nonmilitary Affidavit; 3. Plaintiffs Attorney's Fee Affidavit. 4. Certificates of Receipt of Service and Mailing of Citations from Texas Secretary of State. 5. Affidavit of Laura Langford, Universal Cinema Services, Inc. Statements of Account of Universal Cinema Services, Inc. Plaintiff prays that the Court enter a default judgment in Plaintiffs favor against Defendants, jointly and severally, for the relief prayed for in Plaintiffs original petition and for all further relief to which Plaintiff may be entitled. Respectfully Submitted, State o. 07321900 Jeffrey R. Allen State Bar No, 24006751 Groacsv, MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 Te1ephone:(817) 882-7616 Facsimi1e:(817) 877-8716 ATTORNEYS FOR PLAINTIFF MOTION T0 ENTRY OF DEFAULT JUDGMENT PAGE 2 CERTIFICATE OF SERVICE This is to certify that on the 30th day of December, 2004, a true and correct copy ofthe foregoing Motion for Entry of Default Judgment was served upon all Defendants via certified mail, return receipt requested. 1?LAn~rr1EE?s Morro}: TO ENTRY or DEFAULT JUDGMENT PAGE 3 I Cause N0. 096-207365-04 UNIVERSAL CINEMA SERVICES, INC., IN THE DISTRICT COURT Plaintiff, vs. . . JAMES T. DUFFY, Individually; CINEMA GRILL SYSTEMS, BACKLOT TARRANT COUNTY, TEXAS MANAGEMENT, THE RESTAURANT ENTERTAINMENT GROUP, ENTERTAINMENT FILM WORKS, ENTERTAINMENT DEVELOPERS, INC., Defendant. 96TH JUDICIAL DISTRICT CERTIFICATE OF LAST KNOWN ADDRESS I hereby certify that the last known mailing addresses of Defendants, against whom judgment is taken, jointly and severally, in the above-entitled and -numbered cause, _are as follows: James T. Duffy 990 Edgewater Drive Atlanta, Georgia 30328 Cinema Grill Services, Inc. P.O. Box 28467 Atlanta, Georgia 30358 Backlot Management, Inc. I P.O. Box 28467 Atlanta, Georgia 30358 The Restaurant Entertainment Group, Inc. P.O. Box 28467 Atlanta, Georgia 30358 Entertainment Film Works, Inc. 5920 Roswell Road NE Atlanta, Georgia 30328 Entertainment Developers, Inc. 13720 Six Mile Cyprus, Ste. #2 Fort Meyers, Florida 33912 EXHIBIT CERTIFICATE OF LAST KNOWN ADDRESS VV 1 Respectfully Submitted, le tate Bar No. 07321900 effrey R. Allen State Bar No. 24006751 SHANNON, GRACEY, RATLIFF MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 0 Te1ephone:(8l7) 882-7616 Facsimile:(817) 795-4864 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE This is to certify that on the 30* day of December, 2004, a true and correct copy of the foregoing Certificate of Last Known Address was served upon Defendants via certified mail, return receipt requested. . en CERTIFICATE OF LAST KNOWN ADDRESS 2 Cause No. . UNIVERSAL CINEMA SERVICES, INC., IN THE DISTRICT COURT Plaintiff, vs. JAMES T. DUFFY, Individually; CINEMA GRILL SYSTEMS, BACKLOT TARRANT COUNTY, TEXAS MANAGEMENT, THE RESTAURANT ENTERTAINMENT GROUP, ENTERTAINMENT FILM WORKS, ENTERTAINMENT DEVELOPERS, INC., Defendant. 96TH JUDICIAL DISTRICT I NONMILITARY AFFIDAVII BEFORE ME, the undersigned authority, on this day personally appeared effrey R. Allen, who swore on oath that the following facts are true: am attorney of record for Plaintiff in the above-entitled and -numbered cause. To my knowledge, based on a review of records related to this case and my involvement in this case, James T. Duffy, Defendant, was not in military service when this suit was filed, has not been in military service at any time since then, and is not now in any military service of the United States of America? en Affiant 4 SIGNED under oath before me on the 30m day of December, 2004. Notary Public, State of Texas i Norm Public vg STATE OF TEXAS My Comm. Exp. 04/08/2005 EXHIBIT AFFIDAVIT 2 SOLO PAGE AFFIDAVIT OF JEFFREY R. AILLEIX STATE OF TEXAS COUNTY OF TARRANT BEFORE ME, the undersigned authority, personally came and appeared eftiey R. Allen, who, being by me first duly sworn, did depose and say: 1. "My name is effrey R. Allen I am over the age of 18 years and have never been convicted of a felony or a crime involving moral turpitude. I am fully competent to make this affidavit. I have personal knowledge ofthe facts contained herein, all of which are true and correct. 2. I am a practicingattomey in Arlington, Tarrant County, Texas, and have been licensed to practice law by the Supreme Court of Texas since 1998. I am an attorney with the law tirm of Shannon, Gracey, Ratliff Miller, 1000 Ballpark Way, Suite 300, Arlington, Texas 76011 (hereinafter "Sham1on Gracey"). 3. Shannon Gracey has been retained by Plaintiff, Universal Cinema Services, Inc., to represent it in this case, 4. Shannon Gracey has provided legal services in this case to date, the value of which is calculated on an hourly basis at the normal hourly rate of each attorney or paralegal, including any applicable expenses arising out of or incident to the instant litigation. My rate on this case is $190 per hour. 5. Work performed by the undersigned and other attorneys in his firm on this matter has included reviewing relevant doctunents; drafting and filing P1aintift's Original Petition and coordinating service upon Defendants; researching Defendants' identities, places of business, corporate status and other background information; researching and analyzing EXHIBIT 3 vv Texas law regarding various matters; coordinating with local counsel in the states where the projects at issue are located to detennine possible self-help or replevin remedies; drafting demand letters; drafting Plaintiffs Motion for Entry of Default Judgment, proposed judgment, and supporting affidavits; and counseling and conferring with client regarding this suit. 6. Accordingly, reasonable and necessary attomeys' fees of $l6,504.00 were incurred in this matter through the time of this filing. 7. In addition, Plaintiff has incurred reasonable and necessary administrative and Hling expenses in the amount of $743.46. The total fees and costs incurred prosecuting this suit is $l7,247.46. . 8. I have been actively practicing law since 1998, and have been involved in cases in both Federal and State Courts in the Fort Worth/Dallas area. I have handled other cases involving issues like those in the captioned case. I am familiar with the legal requirements of such cases. Through my practice, I have become familiar with the amounts customarily and reasonably charged in the Fort Worth/Dallas area for the types of services necessarily performed in representing Plaintiff in this case. 9. It is my opinion that such legal services were necessary for the prosecution of this case, and that the hours incurred were appropriate for such services. 10. It is my opinion that the amounts representing the total attorneys' fees and expenses are reasonable in consideration of the time and labor required, the difiiculty of the questions involved, the ability and experience ofthe attorneys assigned to this case, what other attorneys in the community charge for similar work, the amount at stake, and the fact that perfonning this work for Plaintiff precluded the attorneys assigned to this case from accepting fee-paying work for others. ll. Furthermore, it is my opinion that reasonable fees to perform posbjudgment discovery and execute and collect the judgment would be $5,000.00; reasonable fees to draft or respond to a motion for new trial would be $2,500.00; reasonable fees in the event of appeal to the Texas Court of A eals would be $5,000.00; and reasonable fees in the PP even of appeal to the Texas Supreme Court would be $5,000.00. Further Affiant Sayeth Not." DATED this day of December, 2004. . en 7% SUBSCRIBED AND SWORN TO before me by the said Jeffrey R. Allen, on this the of December, 2004, to certify which witness my hand and seal of office. ;??ug3A Notary Public, in and for The State of Texas STATE OF ta" My Comm. Exp. 04/08/2005 CINEMA et al Litigation\Pleadings\Affidavit Re Attomey Fees.doc zi wiz ,$iat2 uf @2xm; uf (State 2005-098350-5 I, the undersigned, as Secretary of State of Texas DO HEREBY CERTIFY that according to the records of this ofiice, a copy of the Citation with Plaintiffs Original Petition in the cause styled: Universal Cinema Services Inc vs James Duffy etal 96th Judicial District Court Of Tarrant County, Texas 09620736504 . was received by this office on September 7, 2004, and that a copy was forwarded on September 13, 2004, by CERTIFIED MAIL, return receipt requested to: James Duffy 990 Edgewater Dr Atlanta, GA 30328 As of this date, no response has been received in this office. I A Date issued: November 17, 2004 7 e% EUR (I, {grS'I\lsv EXHIBIT . vv 4 itil gg '@Iqz ?tate uf @2xms uf ?i?te 2005-0983 50-4 I, the undersigned, as Secretary of State of Texas DO HEREBY CERTIZFY that according to the records of this office, a copy ofthe Citation with Plaintiffs Original Petition in the cause styled: 0 Universal Cinema Services Inc vs James Duffy etal 96th Judicial District Court Of Tarrant County, Texas 096207s6s04 was received by this office on September 7, 2004, and that a copy was forwarded on September 13, 2004, by CERTIFIED MAIL, return receipt requested to: Cinema Grill Systems Inc PO Box 28467 Atlanta, GA 30358 As of this date, no response has been received in this office. Date 1ssued:November 17, 2004 .9 FQ Gigs; Q) ea ge, eg; Connor A ti Secraggry of State Ji zi; silt? A @112 ?iaxt2 uf wants uf tate VQ 2005-09s2s0?s I, the undersigned, as Secretary of State of Texas DO HEREBY CERTIFY that according to the records of this oftice, a copy ofthe Citation with Plaintiffs Original . Petition in the cause styled: Universal Cinema Services Inc vs James Duffy etal 96th Judicial District Comt Of Tarrant County, Texas 0962073 6504 was received by this ofice on September 7, 2004, and that a copy was forwarded on September 13, 2004, by CERTIFIED MAIL, return receipt requested to: Backlot Management Inc PO Box 28467 Atlanta, GA 30358 As of this date, no response has been received in this office. ry ps Date issued: November 17, 2004 rt MgrSecretary of State ST\lsv tt. 2; K__/rv nf @2xms ?zrr2tm?g nf ,?izrt2 2005-098350-2 I, the undersigned, as Secretary of State of Texas DO HEREBY CERTIF that according to the records of this office, a copy ofthe Citation with Plaintiffs Original Petition in the cause styled: Universal Cinema Services Inc vs James Duffy etal 96th Judicial District Court Of Tarrant County, Texas 09620736504 was received by this office on September 7, 2004, and that a copy was forwarded on September 13, 2004, by CERTIFIED MAIL, return receipt requested to; The Restaurant Entertainment Group Inc PO Box 28467 Atlanta, GA 30358 As of this date, no response has been received in this office. sy Gp Date issued: November 17, 2004 REV, js, a; I at tile; aw an tif" at Qgg, 0??2?t2f ST\lsv rr . i Wie ?tahee?f 'GIexmr A ?m;r2tm:g uf ?tatz 2005?098350--l I, the undersigned, as Secretary of State of Texas DO HEREBY CERTIFY that according to the records of this office, a copy of the Citation with Plaintiffs Original Petition in the cause styled: Universal Cinema Services Inc vs James Duffy etal 96th Judicial District Court Of Tarrant County, Texas: O9620736504 was received by this office on September 7, 2004, and that a copy was forwarded on September 13, 2004, by CERTIFIED MAIL, return receipt requested to: Entertainment Film Works Inc 5920 Roswell Rd NE Atlanta, GA 30328 The PROCESS was returned to this office on October 5, 2004, bearing the notation Forwarding Order Expired. . Q3 Date issued: October 6, 2004 . ST\lsv A A @Il?;c ?iat2 uf lilzxars ?m:x2tm?g uf 2005-098350-6 I, the undersigned, as Secretary of State of Texas DO HEREBY CERTIFY that according to the records of this office, a copy ofthe Citation with Plaintiffs Original Petition in the cause styled: Universal Cinema Services Inc vs I ames Duffy etal 96th Judicial District Court Of Tarrant County, Texas 09620736504 was received by this office on September 7, 2004, and that a copy was forwarded on September 13, 2004, by CERTIFIED MAIL, retum receipt requested to: Entertainment Developers Inc 13720 Six Mile Cyprus #2 Fort Meyers, FL 33912 The PROCESS was returned to this office on October 20, 2004, bearing the notation Unclaimed. Date issued: October 21, 2004 o7 ey liar in e> at nr 4 Geoffrey Connor Secretary of State ST'\lsv AFFIDAVIT OF LAURA LANGIQQ STATE OF TEXAS COUNTY OF ARRANT BEFORE ME, the undersigned authority, personally came and appeared Laura Langford, who, being by me first duly sworn, did depose and say: . 1. "My name is Laura Langford. I am over the age of 18 years and have never been convicted of a felony or a crime involving moral turpitude. I am fully competent to make this affidavit. I have personal knowledge ofthe facts contained herein, all of which are true and correct. 2. I am the Vice President of Operations for Universal Cinema Services, Inc. (Universal), Plaintiff in this suit. In that capacity, I have personal knowledge of the accounts made the basis of this lawsuit and the matters stated in this affidavit. 3. As more fully described in Plaintiffs Original Petition, Defendants in this case contracted for, and Universal provided, certain materials and labor to three separate 4 theater projects: Columbus, Ohio; Cincirmati, Ohio; and Rocky Mount, North Carolina. 4. Attached to this affidavit and incorporated for all purposes herein by reference as Exhibit A are statements of account for the three projects at issue. The statements in Exhibit A list the invoices relevant to the projects and the dollar amounts associated with each invoice. As shown in Exhibit A, allowing for all payments, offsets, and credits, the amounts due and owing to Universal on each proj ect is as follows: 1. Columbus . $147,610.75 2. Cincinnati $106,825.98 3. Rocky Mount $147,807.26 EXHIBIT 5. The total amount outstanding due and owing to Universal for the three projects at issue is $402,24399, exclusive of interest, attorney's fees, and other costs of attempted collection of the past due amounts. 6. Exhibit A to this affidavit represents records that are kept by Universal in the regular course of business, and it was the regular course of business of Universal for an employee or representative of Universal, with knowledge of the information that was recorded, to A make or maintain this record or to transmit the information to be included in this record. The record was made at or near the time or reasonably soon after the act, event, condition, opinion, or diagnosis that was recorded. The records attached to this Affidavit are the original or exact duplicates of the original. For purposes of this lawsuit, I am the custodian of the attached business records of Universal. Further Affiant Sayeth N0t." DATED this ii" day of December, 2004. . Lai?a Langford? 2 SUBSCRIBED AND SWORN before me by the said Laura Langford, on this the gz" 3 day of December, 2004, to certify which witness my hand and seal of office. EF. ii 5 No Public, dfo The State of Texas CINEMA et al Litigation\Plendings\Affidavit Laumdoc CINEMA GRILL COLUMBUS . 22 . . .. Inv. Date Inv. Amount. Description 2. I 9- 29059 1,727.36 31609 Harkness screen 12/04/03 29070 280.67 31778 Frei ht for Inv. #29059 29086 110.67 31610 Mulone screen lacing springs 12/16/03 29186 6,161.44 31692 USL processors and monitors 12/16/03 29205 132.11 31705 Telex crossover for EV speaker 12/23/03 29291 1,450.41 31976 Seatin Concepts bolts and screws 29344 107.89 31947 Fastenal screws __01 /07/04 29355 1,519.56 31899 Thornton anchors 01/19/04 29389 176.05 32115 Christie tire har platter motor 01/19/04 29415 308.15 31704 Mulone screen Iacin rin 01/21/04 29417 87.51 32066 Cinemeccanlca ro'ector oil . 01/21/04 29420 175.98 32041 Grain er conductor cable 01/22/04 29440 181.05 32012 SMPTE test iilm 01/22/04 29442 394.64 32179 Christie tire for latter motor __0j/22/04 29445 666.51 32215 Cinemeccanica tools, aperture plates 29452 139.90 32042 Dealers Electrical conductor cable 29454 37.40 32187 Lowell rack mount screws 29455 3,276.24 32165 Osram xenon bulbs 01/23/04 29453 12,632.50 31781 Pollavision JBL EV stage speakers 01/29/04 29518 155.62 32264 DTS reader cable YA 01/29/04 29519 795.40 32225 Od sse cables, lu 29520 2,859.51 31694 Harkness screens pj/29/04 29524 267.57 32292 Clnemeccanlca stereo solar cell __01/29/04 29531 69.23 32259 JBL brackets 01/29/04 29532 1,256,87 32205 JBL surround eekers 01/29/04 29533 156.46 32194 JBL crossovers 01/30/04 29553 16,889.70 32361 JWM transport equipment 01/30/04 29554 . 1,544.90 32361 JWM transport seats 01/30/04 29555 792.35 32361 JWM labor to move consoles 01/30/04 29566 459.16 32322 Cinemeccanica stereo solar cell assy 02/02/04 29571 818.01 None Lenses . . . . . . .. . 02/02/04 29574 697.09 32205 JBL brackets 29581 38.92 32313 Kelmar switch for 02/05/04 29606 733.36 32312 JBL surround speakers 02/05/04 29607 3,506.63 32295 JBL drivers for speakers . 02/05/04 29610 832.65 32334 Christie arts 29612 544.34 32348 Christie axle assemblies 29616 1,884.78 32314 Omnimount speaker bracket _02/05/04 29632 222.00 32315 Stron lens barrell for pro ector 02/05/04 29636 18,480.51 32423 Barlow installation of seats and tables 02/05/04 29639 10,247.59 32370 Barlow removal of chairs EXHIBIT . ovAn ll . *1 are . 02/05/04 29642 76.89 32355 Christie filter assemblies . 02/09/04 29652 317.41 32206 Strong lens baarrell for pro'ector 02/09/04 29665 .77.27 None CPI lice tape 02/09/04 29666 38.03 32449 Fastenal screws A .02/11/04 29691_ 1,868,66 32302 Frankel duvet ne 02/11/04 29701 37.81 32315 Freight for Inv. #29632 29704 1,559.60 32204 Perfect Projection Smart eaker horns 02/11/04 29705 529.00 32484 Freight for Inv. #29453 _02/23/04 29736 265.24 32302 Frei ht for Inv. #29691 _02/23/04 29740 1,457.20 32495 Perfect Prdection lenses 29747 451.82 32490 Cinemeccanica aperture plates, oil 4 02/23/04 29748 7,148.40 32354 Perfect Projection lenses 4 02/23/04 29755 74.00 32315 Stron lens barrell for pro ector 02/23/04 29760 104.47 32489 Stron a erture lates i 02/23/04 29761 1,767.05 32459 Perfect Projection lenses 02/26/04 29799 843.70 32525 Perfect Projection lenses 02/26/04 29806 -403.20 32334 Credit for returned Christie parts 03/01/04 29820 -317.41 32206 Credit for returned Stron lens barrell 03/01/04 29821 564.13 32369 Frei ht for Inv. #29691 . 03/04/04 29848 502.00 32524 Perfect Projection lenses 03/04/04 29850 208.46 32226 GST eaker brackets 5 03/05/04 29874 28.47 32315 Frei ht for Inv. #29755 03/18/04 29928 38,313.67 Installation of lrojection sound uip. I Z1 148.331.36 . . I I41, Lz . CINEMA lnv. Amount gg A Description 11/25/03 29039 43.41 31628 Cinemeccanica focus tool . 4 12/04/03 29062 2,073.59 None Lenses, Splicer, splice tape, guetapef . 12/04/03 29072 1,361.73 31581 Harkness screen 12/04/03 29077 206.01 31780 Labor_Ready to move equi ment 12/04/03 29085 1,066.89 31627 Kelmar power suppl 29087 115.42 31 582 Mulone screen Iacin sprin A 12/05/03 29103 212.47 31660 Christie projection parts 291 15 495.19 31667 Slron projector parts 29135 1,638.12 31661 Osram xenon bulbs 12/16/03 29150 109.73 31825 Strong drive pulley 12/16/03 29159 32.83 31802 Lowell_ rack mount screws j2/16/O3 29161 1,600.00 31493 Thornton anchors _Vg16/03 29183 570.26 31698 Lowell relay racks 29184 2,677.69 31690 JBL surround speakers 12/16/03 29185 659.25 31706 Bass fascias and diffusers 12/16/03 29187 479.98 31750 eco failsafes 12/16/03 29188 9,990.81 31691 USL processors and monitors 12/16/03 29191 17,595.00 31882 Barlow installation of seats 12/16/03 29195 86.14 31789 Stron apertpre plates 12/16/03 29197 2,802.16 31813 Hoshizaki ice cuber, bin, tilter sys. 29209 550.57 None Splicer, leader 29215 12,195.75 31878 Pickett front end installation 12/1f/@3; 29217 227.70 31930 Labor Ready to install speakers 841-60 31808. .. _1 gg/03' 29230 1,228.59 31790 Osram xenon bulbs rr__ 12/17/03 29231 331.20 31755 Irwin bolts for seat backs 12/17/03 29232 230.80 31786 SMPTE test film 12/17/03 29233 54.11 31846 Cinemeccanica air intake tube 12@yQ3 29234 91.37 31864 Cinemeccanica microfarad ca acitor _1_2/22/03 29257 75.09 31801 QSC phoenix connectors 12/23/03 29269 66.60 31918 Christie roller assembly 12/23/03 29276 2,103.98 31856 USL processor and monitor 12/23/03 29284 1,491.40 31975 Schneider lens 12/23/03 29292 1,666.98 31977 Seating Concepts bolts and screws 12/23/03 29294 74.22 31916 Telex 12/24/03 29300 1 16.96 31927 Christie transformer 01 @/04 29311 9,497.85 32009 JBL shipment of equipment 60.22 31966 Strong dampening fluid 01/19/04 29396 2,777.58 32247 Pollavision lenses _0y1_9Q4? 29399 333.50 None Stron Splicer 01/19/04 29412 2,948.14 31603 Gold Medal er, base, oil um 29467 -276.00 31691 Qredit for returned 29450 3,390.33 32189 bass 29472 None installation of projection 02/02/04 29573 45.66 None Freight for inv. #29399 02/23/04 29753 398.20 32556 Perfect_Proje:cti0n Lenses i @@3/04 29754 110.53 31707 GST speaker bracket A Inv 107,457.59 io 941*5. 0 raszm 4; 7 (gmt,. on vow . 2263 *6 . A -2-2 . .222. We *47. L. .2. new me i@2lO3 28926 4,906.20 31449 USL processors and monitor it- jy12/03 28959 A 3,933.64 31355 Tivoli aisle lighting 28985 962.28 31467 Haven box odice intercom units 11/21/03 29007 1,375.62 31500 Christie pgmtion parts `29042 80.11 31567 Christie spring 11/25/03 29043 2,469.12 31554 JBL subwogjers 11/25/03 29044 669.70 31595 DTS reader and timecode reader 11/25/03 29045 4,824.24 31599 DTS di ital processor 2/04/03 29071 3,740.91 31396 Harkness scigws 29089 2,365.70 31638 Schneider lenses M12/04@3l 29090 51.30 31646 Technikote screen brush 12/04/03; 29091 96.35 31625 Christie housing 29092 356.00 31594 Od ssey sound harness, input card l2/04/03 29093 3,026.79 31602 Gold Medal opper, base, g@1L_i 12/04/03 29094 157.87 31624 Kelmar Him cleaning machine, bracket_i 1@ii03 2@ 2,630.05 31468 Gold Medal >opcorn warmers 7 1g05/03 29098 1,382.76 31551 Hod es zinc shelves 12/05/03 29099 52.68 31644 Grainger telescopic pole _12/05/03 29101 349.63 31565 Mulone screen lacing springs 12/05/03 29104 766.23 31641 JBL woofer and crossover 12/05/03 29110 574.63 31805 United Rentals ladder rental 12/05/03' 29116 2,100.25 31701 RMG Kenwood radios, antennas, adapters 12/05/03 29117 1,961.30 31469 Lavi posts ropes 12/05/03 29119 A 48.00 31678 Technikote screen brush 29121 210.56 31703 San Jamar soap dispensers 29132 2,174.07 31658 Eagle sinks aygguts 29133 281.04 31695, Tiignli aisle lig hting _1 29134 45368 31697 Gold Medal nacho warmer, scoopsdqowk 29151 140.22 31843 USL ualizer 12/16/03 29149 229.77 31814 Stron take-up rings 12/16/03 29154 2,134.64 A 31549 Glassform decorative trash cans _j2/16/03 29162 197.60 31769 Strong pulleys and belts 29176 407.55 31639 Strong brain for latter 29177 46.92 31770 Stron shaft and pulley assemblies 12/16/03 29178 314.77 31696 Sen/er butter sewers 12/15/03 29179 1,990.18 31702 Kelmar rewind/inspection system 12/16/03 29189 429.56 31710 Hoshizaki dual water Hltration system A 12/16/03 29192 151.48 31798 JBL network assembly 29200 1,012.55 31800 Christie platter parts 12/17/03 29214 9,631.25 31881 Pickett installation of front ends jig 7/03 29218 111.53 31872 Goldberg film clamp sets 29226 6.92 31835 Christie njge-up table receptacle 12/17/os. l? cmisue latter and mare-u tame arts 5 ?1 I I racks 222 8/03 29242 _223.58 31787 SWLV JVC 5 gisc CD playa; A A 2Q52 207.15 73l847 Strong chancieover WWA . i 2/22/03 my 29255 _260.92 31858 Christie projection parts N--4r 29256 484.00 (31832 Christie platter __12/2g03 2 9258 my 2,627.03 31757 Bass dis la boards, marquee lettejs_; n__1_2/22/03 29259 97.81 _31853 Christie cable assemblies y12/23/03 29267 8,625.00 31909 Barco digital projector 12/23/03 29281 167.94 31826 Qrong projector parts 2 lnla 12/23/03 29282 105.40 31873 CPI countdown leader MVT 12/24/03 29299 5,947.13 None Oftice Depot supplies 29301 722.10 31548 GST eaker brackets 12/29/03 29304 2,739.68 None Technician services A 29312 y_ 4,229.70 32009 JWM shi ment of equipment 01/06/04 29315 39.76 31814 Freight for Inv. #29149 01/06/04 29316 27.27 31770 Frei ht for Inv. #29177 01/06/04 29323 19.56 31951 Stron table reel drive pin 01/06/04 29324 746.77 31884 Goldber reels 01/07/04 29334 1,581.95 31909 Barco Lens 29335 31871 Speco film clamps 20]/07/04 29336 86.10 31815 Od ssey adapter plug __0y0yQ4;_ 400.91 31883 Bass display boards, marquee Iettersy 10773 31922 oo2o2o.o . . . ill /07/04 29339 33.90 31937 switch @07/04 29359 9,700.40 31945 Barco digital projector 01/19/04 29397 r_w> 162.39 31833 Pollavision Christie used film sensor ass 01/21/04 29424 231.60 31552 CPI leader and lens tissue 01/28/04 29473 28,960.81 None Installation ogprojection and sound uip 01/28/04 29475 405.21 None Oftice Depot supplies . 01/29/04 29483 -75.90 31853 Credit for gurrled Christie parts ,01/29/04 29484 A -6.92 31835 Credit for returned Christie parts @29/04 29487 7,820.00 32013 Stron latter systems 01/29/04 29491 74.16 32239 Gemini chagge arm 29550 44.25 32360 Freight for Inv. #29335 _02/05/04 29613 80.97 32224 Christie platter arts @@09/04% 29653 -106.19 31769 Credit for returned Strongrparts r_ 29659 8,475.50 32330 Stron latter systems _v_V 29683 51.94 32417 Server jar 29706 1,133.82 32485 Service wom by Shaver Sou@Segge_ 02/13/04 29715 y_ 123.09 32440 JBL diaphragm 29726 42.06 32375 Strong platter parts 29778 yy 80.74 32574 DTS reader bracket 02/24/04 29788 437.03 32575 Service work by Shaver Sound Service _y02i05/O4 29875 295.14 32330 Freight for Inv. #29659 03/17/04 29927 417.07 32762 Frei ht for Inv. #29487 147.996.27 lei {010% 84% -0 'l BMDW 'v'r SHANNON, RATLIFF MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817) 795-4866 Telecopier (817) 795-4864 Jeffrey R. Allen Direct Email A Direct Dial (817) 882-7616 December 30, 2004 Clerk of the 96th District Court Tarrant County Justice Center 401 W. Belknap Fort Worth, Texas 76196 Re: Cause No. 096-207365-04; Universal Cinema Services, Inc. v. James Duffy, et, al. Dear Clerk: Enclosed for tiling with the court in connection with the above-referenced matter is an original and one copy of: 1. Plaintiffs Motion for Entry of Default Judgment; and 2. Default Judgment. Please forward the enclosed to the Judge Walker for his review, Please notify the undersigned if a hearing will be necessary. lf not, please retum a conformed copy of the Default Judgment and a file-stamped copy of the Motion for Entry of Default Judgment. Thank you for your assistance. . Sincerely, cn effrey R. Allen JRA:css qq W1 Enclosure CINEMA et al 12-30-04.doc James T. Duffy via civmkk 7003 1680 0000 2909 4939 990 Edgewater Drive Atlanta, Georgia 30328 Clerk of the 96th District Court December 30, 2004 Page 2 Cinema Grill Services, Inc. vm 7003 1680 0000 2909 4946 P.O. Box 28467 . Atlanta, Georgia 30358 Backlot Management, Inc. Via 7003 1680 0000 2909 4953 P.O. Box 28467 Atlanta, Georgia 303 5 8 The Restaurant Entertainment Group, Inc. Via 7003 1680 0000 2909 4960 P.O. Box 28467 Atlanta, Georgia 30358 Entertaimnent Film Works, Inc. via 7003 1680 0000 2909 4977 5920 Roswell Road NE Atlanta, Georgia 30328 Entertainment Developers, Inc, Via 7003 1680 0000 2909 4984 13720 Six Mile Cyprus, Ste. #2 Fort Meyers, Florida 3 3 912 Jack Panzeca i Via Facsimile to 817.633].190 Stan Lamb Laura Langford Universal Cinema Services, Inc. 1205 Corporate Drive East Arlington, Texas 76006 Cause No. 096-207365-04 UNIVERSAL CINEMA SERVICES, INC., IN THE DISTRICT COURT Plaintiff vs. JAMES T. DUFFY, Individually; CINEMA GRILL SYSTEMS, BACKLOT TARRANT COUNTY, TEXAS MANAGEMENT, THE RESTAURANT ENTERTAINMENT GROUP, ENTERTAINMENT FILM WORKS, ENTERTAINMENT DEVELOPERS, INC., Defendant. 96TH JUDICIAL DISTRICT DEFAULT JUDGMENT At the hearing on this cause, Plaintiff appeared through its attorney of record. Defendants James Duffy, Individually, Cinema Grill Systems, Inc., Backlot Management, Inc., The Restaurant Entertainment Group, Inc., Entertainment Film Works, Inc., and Entertainment Developers, Inc. (together, "Defendants"), although duly cited to appear . and answer herein, have failed to file an answer within the time allowed by law. The Court has considered the pleadings and records on tile in this cause and the evidence herein and is of the opinion that judgment against Defendants should be rendered for Plaintiff in all respects. Accordingly, the Court finds as follows: WHEREAS, Defendants have engaged in a joint enterprise and fraudulent scheme directed at Plaintiff to defraud Plaintiff of materials and labor; WHEREAS, as a result of Defendants' actions, Plaintiff has been deirauded of material and labor worth in excess of $402,243.99; . WHEREAS, Defendants have failed and refuse to pay the sums due and owing to Plaintiff despite repeated demands to do so, as more fully described in Plaintiffs' Original Petition, which is attached hereto as Exhibit and . WHEREAS, Defendants have admitted the factual allegations contained in Plaintiffs' Original Petition by virtue of their default, which factual allegations are incorporated into this Judgment as though set forth fully herein; DEFAULT JUDGMENT Gun Mmutq?\GE 1 Transaction cf jh,} . It is accordingly ORDERED, ADJUDGED, and DECREED that Universal Cinema Services, Inc., Plaintiff, recover from the above named Defendants, jointly and severally, judgment for-- 1. $402,243.99 as the principal amount due; 2. Pre--judgment interest at the maximum rate allowed by law on the principal amount to the date of judgment; 3. 16,504.00 as attorney's fees incurred to date; additional fees to perform post-judgment discovery and execute and collect the Judgment in the amount of $5,000.00; additional reasonable fees to draft or respond to a motion for new trial in the amount of $2,500.00; additional reasonable fees in the event of appeal to the Texas Court of Appeals or other court of appeals in the amount of $5,000.00; and additional reasonable fees in the event of appeal to the Texas Supreme Court or other further appeal in the amount of $5,000.00. 4. $743 .46 for expenses incurred herein; 5. Interest at the maximum rate allowed by law on the total Judgment from the date of Judgment until paid in full; and 6. All costs of Court. It is further ORDERED that Plaintiff shall have all writs of execution and other process necessary to enforce this Judgment. This Judgment is final and is appealable. . SIGNED on this {Day of January, 2005. V, juno? DEFAULT JUDGMENT PAGE 2 il . . I . A CauseNoD96 I UNIVERSAL CINEMA SERVICES, INC., IN THE DISTRICT COURT Plaintiff} vs. . . 5 JAMES T. DUFFY, Individually; CINEMA GRILL SYSTEMS, BACKLOT TARRANT COUNTY, TEXAS MANAGEMENT, THE RESTAURANT ENTERTAINMENT GROUP, ENTERTAINMENT FILM ff? WORKS, ENTERTAINMENT gig; g_ mc., vt Defendant. JUDICIAL DISTRICT `rllm . {fsf an . if Plaintiff Universal Cinema Services, Inc., tiles this Original Petition, complaining of Defendants James Duffy, Individually, Cinema Grill Systems, Inc., Backlot Management, Inc., The Restaurant Entertainment Group, Inc., Entertainment Film Works, Inc., and Entertainment Developers, Inc. (together, "Defendants"), and in support thereof shows the following: l. Discovery is intended to be conducted under Texas Rule of Civil Procedure 190.3 (Level 2). Pursuant to Rule 216 of the Rules of Civil Procedure, Plaintiff hereby demands a jury trial, and has paid the requisite fee. Parties 2. Plaintiff is a Texas corporation whose principal place of business is in Tarrant County, Texas. 3. Defendant James T. Duffy is an individual residing at 990 Edgewater Drive, Atlanta, Georgia 30328. As a non-resident individual doing business in the state of Texas, but who does not maintain a residence business in the state of Texas, and who has not PLAINTIFF's ORIGINAL PETITION EXHIBIT PAGE 1 ooAn I a Ai designated or maintained a designated or registered agent for service of process in the state of Texas, Defendant James T. Duffy may be served with process pursuant to Section l7.044(b) of the Civil Practices and Remedies Code, -by serving the Texas Secretary of State, Citations Unit, P. O. Box l2079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forvvard a copy of suit papers and citation to Defendant James T. Duffy's home: 990 Edgewater Drive, Atlanta, Georgia 30328. I 4. Defendant Cinema Grill Services, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the state of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but who does not maintain a designated or registered agent for service of process in the State of Texas, Defendant Cinema Grill Services, Inc., may be served with process pursuant to l7.044(b) of the CIVIL PRACTICES AND REMEDIES CODE, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's home office: P.O. Box 28467, Atlanta, Georgia 30358. 5. Defendant Backlot Management, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but who does not maintain a designated or registered agent for service of process in the state of Texas, ORIGINAL PETITION PAGE 2 i I Defendant Baeklot Management, lnc., may be served with process pursuantto 17.044(b) of the CIVIL AND Rarvrnoins Conn, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section I7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's home office: P.O. Box 28467, Atlanta, Georgia 30358. 6. Defendant The Restaurant Entertaimnent Group, Inc., is a Georgia corporation that does not maintain a designated or registered agent for se1?vice of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but not required to maintain a designated or registered agent for service of process in the State of Texas, Defendant The Restaurant Entertainment Group, Inc., may be served with process pursuant to Section 17.044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711--2079, who should then provide notice pursuant to Section 17.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's home office: P.O. Box 28467, Atlanta, Georgia 30358. 7. Defendant Entertainment Film Works, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is 5920 Roswell Road A NE, Atlanta, Georgia 30328. As a foreign corporation doing business in the State of Texas, but not required to maintain a designated or registered agent for service of process in the State of Texas, Defendant Entertainment Film Works, Inc., may be served with process pursuant to ORIGINAL PETITION PAGE 3 1 A Section 17.044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section 17.045(a) ofthe Civil Practices and Remedies Code and forward a copy of suit papers and citation to the mailing address of Defendant's home office: 5920 Roswell Road NE, Atlanta, Georgia 30328. 8. Defendant Entertainment Developers, Inc., is a Nevada corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is 13720 Six Mile Cyprus, Ste. Fort Meyers, Florida 33912. As a foreign corporation doing business in the State of Texas, but not required to maintain a registered agent for service of process in the State of Texas, Defendant Entertainment Developers, Inc., may be served with process pursuant to Section 17.044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711--2079, who should then provide notice pursuant to Section 17.045(a) of the Civil Practices and Remedies Code and forward suit papers and citation to said Defendant, at the mailing address of Defendant's home office: 13720 Six Mile Cyprus, Ste. Fort Meyers, Florida 33912. Jurisdiction and Venue 9. This Court has jurisdiction over Defendants because all Defendants engaged in business in Tarrant County, Texas, by conspiring to defraud Plaintiff in Tarrant County, Texas, committing fraud and misrepresentation in Tarrant County, Texas, and entering into a series of contractual agreements with Plaintiff (whether directly or through other Defendants as agents), payment under which was to be made to Plaintiff in Tarrant County, Texas, and the matters at issue herein arise out of those actions. This Court has jurisdiction over the amount in ORIGINAL PETITION A PAGE 4 . i I I controversy because the damages sought are within this Court's jurisdictional limits. Venue is proper in Tarrant County, Texas because all or a substantial part of the acts or omissions giving rise to the Plaintiffs claims occurred in this county, and Plaintiff is located in this county. Background 10. Plaintiff is a Tarrant County company in the business of designing and constructing the finished interiors of movie theatres, including, among other things, the installation of movie screens, projection equipment, sound systems, and seating. ll. The corporate Defendants, (together, the "Duffy Entities") are nominally five separate entities incorporated under Georgia law (in the cases of Cinema Grill Services, Inc., Backlot Management, Inc., Entertainment Film Works, Inc., and The Restaurant Entertainment Group Inc.) and Nevada law (in the case of Entertainment Developers, Inc.). On infomation and belief Defendants are operated as a joint business enterprise, and/or as alter egos of Defendant Duffy. Defendant Duffy is listed with the Georgia Secretary of State as the chief executive officer, chief financial officer, and secretary of Cinema Grill Services, Inc., Backlot Management, Inc., and The Restaurant Entertainment Group, Inc. All three of these Defendant entities list the same post office box in Atlanta, Georgia, as their mailing address, and all three list the same agent for service of process within the state of Georgia: Sonya White, 228 Water Tank Road, Atlanta, Georgia 30132. On information and belief Defendant Entertainment Film Works, Inc., and Defendant Entertainment Developers, Inc., are also wholly owned and controlled by Duffy. On information and belief, Defendant Duffy used the Duffy Entities, and possibly other entities, in a concerted effort to fraudulently deprive Plaintiff of its goods and services, with the intention from the outset of never paying Plaintiff for said goods and services. ORIGINAL PETITION PAGE 5 I <1 l2. In or around October 2003, Plaintiff was contacted in Tarrant County, Texas, by representatives of Defendants regarding a possible arrangement between Plaintiff and Defendants by which Plaintiff would provide certain materials and labor for the finish--out of three separate theater projects. Defendants were developing said theaters in Rocky Mount, North Carolina, Columbus, Ohio, and Cincinnati, Ohio (the "Projects"), Ultimately, after submitting a credit application under the name of Defendant Cinema Grill Services, Inc., along with industry references (including a credit reference from Defendant Backlot Management, Inc.) to Plaintiff Defendants established an account with Plaintiff under which Defendants would submit oral or written purchase orders for equipment and installation thereof for the Projects which Plaintiff could accept or reject as Plaintiff determined (referred to collectively herein as the "Contracts"). As Plaintiff understands the Projects, Defendants acted as the general contractor for the Projects, and acted as the liaison between all subcontractors (including Plaintiff) and the owners of the retail outlets in which the Projects were located. On information and belief, either Defendants or separate entities set up by Defendants were to be the operators of the Projects once the theatres were up and running. Upon information and belief, the only theater still in operation of the three is the Cincinnati theater, operated by Defendant Entertainment Developers, Inc. Upon information and belief Defendant Entertainment Developers, Inc., acted through the other Defendants as its agents, including Defendants Duffy and Cinema Grill Services, Inc., to solicit goods and services from Plaintiff 13. Under the terms of the Contracts, Defendants were to pay amounts due and owing within 21 days of receipt of the invoices. Payment was to be made to Plaintiff in Texas. Over a period of several months,. Plaintiff provided substantial amounts of labor and material to the three Projects at Defendants' request, and billed Defendants accordingly. Over the course of the ORIGINAL PETITION PAGE 6 cu i three Projects, Plaintiff received only two payments from Defendants, in the form of two checks from Defendant Backlot Management, Inc, signed by Defendant Duffy. 14. As the amounts due and owing (yet unpaid) on Defendants' account began to age, employees of Plaintiff contacted Defendants to inquire as to the state of Defendants' finances and the status of the Projects. Plaintiffs were assured repeatedly by Defendants, including Defendant Duffy, that Defendants had the ability and intention of paying all amounts owed to Plaintiff and that would be inctured as a result of future orders. Specifically, Defendant Duffy stated to Plaintiff on one occasion that Defendants would pay Plaintiff as soon as the landlord on one of the Projects paid Defendants, which was supposed to happen in a matter of one or two weeks. On another occasion, Defendant Duffy stated to Plaintiff that he expected to receive a check soon and would pay Plaintiff when he got it. On still other occasions, Defendant Duffy pleaded with Plaintiff to keep Defendants' account open because he had "some money coming" and would be able to pay Plaintiff In reliance on Defendant Duffy's (upon information and belief false) representations in this regard, Plaintiff fulfilled additional orders from Defendants relating to the Projects. 15, Eventually, the past-due amounts owing to Plaintiff on Defendants' Projects rose to $402,24399, and Plaintiff refused to provide additional goods or services to Defendants until paid. Despite repeated demands by Plaintiff to pay these amounts, Defendants refused. Eventually, Plaintiff retained the services of counsel, who sent a written demand for payment to Defendants. Defendants failed and refused, and continue to fail and refuse, to pay the amounts clue and owing to Plaintiff 16. Incredibly, when confronted with a demand for payment on the account with Plaintiff} Defendant Duffy responded in a letter dated April 29, 2004, that "Cinema Grill PLAINTIFWS ORIGINAL PETITION PAGE 7 i Systems, Inc., did not contract with Universal Cinema Services, Inc." for the labor and material on which the demand for payment was made. Defendant Duffy states in the same letter that Defendant Cinema Grill Systems, Inc., "licenses to others the right to operate Cinema Grill" and that he thinks Plaintiffs "dealings were with the Operator/Licensee, and that any question regarding any claims or obligations need to be directed to the appropriate party." This response, while clearly contrary to the facts (because Cinema Grill Systems, Inc. is the name in which Defendants applied for an account with Plaintiff, and the name in which Defendants were invoiced), serves to illustrate the shell game that Defendants attempted to play on Plaintiff. On information and belief, Defendants entered into the Contracts with Plaintiff and induced Plaintiff into said Contracts, with the present intention not to pay the charges incurred under the Contracts. Moreover, on information and belief Defendants conspired (at Duffy's direction) to structure the transactions in such a way that one Defendant entity would act nominally as the contracting party with Plaintiff, while another entity entered a lease on a given Project, while yet another entity acted as the eventual operator of each Project, all with the intent of jointly defrauding Plaintiff and leaving Plaintiff no readily available recourse when Defendants ultimately defaulted on the Contracts. Conspiracy 17. Plaintiff incorporates by reference the allegations contained in paragraphs 1- 16 herein as if fully set forth at length. 18. The actions of Defendants as described above amount to a conspiracy to defraud Plaintiff On information and belief, Defendants reached a meeting of the minds to act in concert with one another to fraudulently induce Plaintiff into providing goods and services for which Defendants had no intention to pay. At least two ofthe Defendants, James T. Duffy and Cinema ORIGINAL PETITION PAGE 8 . A i it i Grill Services, Inc., committed overt acts of fraud and misrepresentation in furtherance of said conspiracy, for the benefit of themselves and the other Defendants, resulting in monetary damages in an amount within the jurisdictional limits of the Court, for which Plaintiff sues. Fraudulent Misrepresentation/Negligent Misrepresentation and Exemplary Damages l9. Plaintiff incorporates by reference the allegations contained in paragraphs 1- 18 herein as if fully set forth at length. 20. Defendants herein colluded to defraud Plaintiff of its goods and services by representing to Plaintiff a willingness and ability to pay all sums that would become due and owing with no intention and/or ability to actually pay said sums. Furthermore, Defendant Duffy made numerous representations to Plaintiff that the goods and services being provided by Plaintiff would be paid for, even after Plaintiff became concerned about Defendants' growing late balance and asked for assurances from Defendants of Defendants' willingness and ability to pay amounts due and owing. Defendants made such representations despite the fact that they knew they had no intention of paying the amounts due and owing, and/or despite the fact that they knew or should have known they had no ability to pay such amounts. Plaintiff repeatedly relied on these misrepresentations, first in entering into the Contracts to begin with, and then in continuing forward in providing goods and services to Defendants. 21. As a direct and proximate result of the misrepresentations by Defendants, Plaintiff has incurred damages within the minimum jurisdictional limits of the court, for which sums Plaintiff now sues. Furthermore, because of Defendants' willfully fraudulent conduct, Plaintiff is entitled to an award of exemplary and punitive damages, for which it sues. ORIGINAL PETITION PAGE 9 Breach of Contract i 22. Plaintiff incorporates by reference the allegations contained in paragraphs l- 21 herein as if fully set forth at length. 23. The behavior described above constitutes material breach of the Contracts on the part of Defendants. A 24. The Plaintiff complied with its obligations pursuant to the Contracts, and provided materials and labor to Defendants. However, Defendants failed to fulfill their contractual obligations by failing to pay all amounts due and owing as agreed. A 25. Defendants' failure to comply with their contractual obligations as described herein constitutes breaches of the Contracts, which have proximately caused damages to the Plaintiff in an amount within the jurisdictional limits of this court, for which sums the Plaintiff now sues. 26. All conditions precedent have been performed or have occurred as required by Tax. R. Civ. P. 54. Unjust Enrichment/Quantum Mcruit 27. The Plaintiff incorporates by reference the allegations contained in paragraphs l- 26 herein as if fully set forth at length. I 28. In addition and in the alternative to the causes of action set out above, Plaintiff asserts a right to recover the fair market value of the goods and services provided to Defendants under the doctrine of unjust enrichment. Defendants have received the benefit of Plaintiffs goods and services without compensating Plaintiff For this reason, Plaintiff sues for quantum memit damages from Defendants in an amount within the jurisdictional limits of this Court. A Alter Ego . ORIGINAL PETITION PAGE 10 . . i 29. Plaintiff incorporates by reference the allegations contained in paragraphs l- 28 herein as if fully set forth at length. 30. Upon information and belief Defendant Duffy operates the Duffy Entities merely as alter egos of himself] and uses the Defendant entities in furtherance of his fraudulent schemes. For these reasons, the Court should find that the actions and liabilities of the Duffy Entities are attributable in all respects to Duffy individually. Damages 31. As a direct and proximate result of Defendants' conduct, as set forth herein, Plaintiff has been damaged in an amount within this court's jurisdictional limits. Att0rney's Fees 32. Plaintiff incorporates by reference the allegations contained in paragraphs l- 30 herein as if fully set forth at length. 33. Due to the actions of Defendants as set out in this petition, Plaintiff has been forced to retain the services of the undersigned law firm. Plaintiff has agreed to pay the undersigned a reasonable fee for its services necessarily rendered and to be rendered in pursuing Plaintiffs claims against Defendants. Therefore, pursuant to TEX. Civ. PRAC. REM.. CODE 38.001, et seq., and other Texas law, Plaintiff is entitled to an award of reasonable attomeys' fees and expenses in an amount to be established at trial. Prayer WHEREFORE, Plaintiff respectfully requests that Defendants be cited to appear and answer herein, and that upon final hearing hereof: Plaintiff recovers its actual damages suffered as a result of Defendants' civil conspiracy, fraudulent and negligent misrepresentations, breach of contract; ORIGINAL PETITION PAGE 11 I (l Plaintiff recovers exemplary and punitive damages for Defendants' knowing and willful conspiracy and fraud; Plaintiff recovers the value of the goods and services provided to Defendants under quantum meruit; Plaintiff recovers all its damages, costs, and expenses, including reasonable and necessary attorneys' fees and expenses incurred in bringing this action; Plaintiff recovers pre-judgment and post-judgment interest at the maximum rate allowed by law; and Plaintiff have and recover any and all other relief, special or general, legal or equitable, as the Court deems appropriate, Respectfully Submitted, le ta Bar o. 07321900 Jeffrey R. Allen State Bar No. 24006751 SHANNON, GRACEY, RATLIFF MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 Telephone:(8l7) 882-7616 Facsimile:(8l7) 795--4864 ATTORNEYS FOR PLAINTIF ee ul Lmgaa?..w?eraa?gsn.s paarimasc ORIGINAL PETITION PAGE 12 \gEx-- 3 X5 Ls., LJ (22 sit? ei; . . pm! ii'.(JL) MI . i 1 xxi; :2 00 r" vnk?omsn I . SHANNON, RATLIFF MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 (817) 795-4866 I Telecupier (817) 877-8176 Jeffrey R. Allen Direct Email Direct Dial (817) 882-7616 iallen@shannongracey.com ez? ta . . April 5, 2005 Ci are at on if :22 Clerk ofthe 96th District Court im Tarrant County Justice Center iff; Ti 401 W. Belknap Fort Worth, Texas 76196 YR Re: Cause No. 096--207365-04; Universal Cinema Services, Inc. v. James Duffy, et. al. Dear Clerk: This letter is to request a certified copy of the Default Judgment in this case. I have enclosed a check for $14.00 and a return envelope. Please send the certified copy to the undersigned. If you need any additional information, let me know. Sincerely, I . ,2*3 . 5a frey' . len . JRA:css Enclosure CINEMA et al 04-05-05 .doc bq Md ml gjgu?v-1 g2?mm`; .. . A Wir,. . J2 . xii} cw} Ow on . til}. 112% .. 1 I X. 2:25 zz *2 . 5* {iis `?gig Lz IN THE sumsmok comm or rULroN IN OFFJCE STATE OF GEORGIA . 3 Jl.! UNIVERSAL CINEMA SERVICES INC, Ml Plaintiff, Civil Action File N0. v. JAMES T. DUFFY, et. al, Defendant. FINAL ORDER REGARDING DOMESTICATION ACTION In the above-styled action, a judgment creditor seeks to domesticate a foreign judgment pursuant to the Uniform Enforcement of Foreign Judgment Act, O.C.G.A. 9- 12-130 et seq. (the Act). It appearing that all the requirements of the Act have been met and that no objection to the domestication has been raised, it is hereby ordered that the Clerk shall treat the subject judgment as though it were issued in Georgia. It further appearing that no action is required by the Court at this time, the Clerk is hereby Ordered to close this matter. . Q7 So ORDERED this day of September, 2006. . I MI HAEL D. JOHN N, JUDGE FULTON SUPERIOR CO RT ATLANTA JUDICIA CUIT James T. Duffy 999 Edgewater Dr. Atlanta, GA 30328 The Restaurant Entertainment Group P.O. Box 28467 Atlanta, GA 30358 Entertainment Film Work, Inc. 5920 Roswell Rd NE Atlanta, GA 30328 0 Cinema Grill Services P.O. Box 28467 Atlanta, GA 30358 Backlot Management P.O. Box 28467 Atlanta, GA 30358 lN THE SUPERIOR COURT OF FULTON COUNTY sum up GEQRG I FILED IN OFFICE i` IzyunJef WURT PLAINTIFF N0: VS. I cfu] DEFENDANT U.S. Postal Service CERTIFIED MAIL RECEIPT Mail Only; N0 Insurance Coverage PruwdedGry rate, lP?4 I %/ai 30357 I (D 0 IN cme; WL 18 (lg, Harm 1 NOTICE FOREIGN JUDGMENT @2 Z22 CIVH. ACTION FILE NUMBER: 2/g6U7f 7 Q4 $@757 Pursuant to Georgia's ENFORCEMENT OF FOREIGN JUDGMENT O.C.G.A. 9-12-130, you are hereby notified that: 0//xsd 6 ma ea IV V. Judgment Creditor whose attomeyis 2 . . gm gs; QQ Q;/ag jh, I Tg g?J/ has filed a foreign judgment in this office in which you are the judgment debtor(s). This, d?y?f Deputy Clerg, Fulton Superior Court i` IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEQRQIA I ILED IN OFFICE n` I 6 UL 1 al 20?" rl 4 xr fl crvu. Acnou mz PLAINTIFF NO: J, 7 VS. g. 6fa/ DEFENDANT U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Mail Only; No Insurance Coverage Provlded) Pc s?a?e mm Fee (End;z:;;:EURs;:;I;zi 2 Tonanrnseagssrees I 2 I A I .035 fe A ILED 1 it OFFICE 4 ml. li 4 Trirum com GA . NOTICE FOREIGN JUDGMENT CIVH. ACTION /5 FH.E NUMBER: 0 px 92%% 7 ?fgm 7% Q4 Eze? Pursuant to Ge0rgia's ENFORCEMENT OF FOREIGN JUDGMENT O.C.G.A. 9-12-130, you are hereby that: 0//64654/ 5 5 0, xw Judgment Creditor whose attorney is MM E4//gg?g QQ 52;/again 72 has filed a foreign judgment in this office in which you are the judgment debt0r(s). This, day of Deputy Fulton Superior Court rx xl IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA FILED IN OFFICE I 6 Ju 1 a {zoos U4/n I nlg?zsgg CIVH. ACTION FILE yi? VS. cfm! DEFENDANT U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Ma1/ Only; Nc Insurance Coverage Provided) TTI F0 $--agE Cerhhed Fee tal Postage Fees I E3 CI 022% Ik "i L, LED IN OFFICE . IN THE SUPERIOR COURT OF FULTON COUN I STATE OF GEORGIA 4 4 Q7ne0v?1>> c1v1L ACTION NO: ,906601/gy GU 5 206 RE: .IUDGMENT FROM COURTcAsE NO: @26 -070 23&& new M5 ggd?f?f UNIFORM FOREIGN JUDGMENT CERTIFICATE OF MAHJING NOTICE The undersigned hereby that notice of the tiling of the foreign judgment proceeding has been properly addressed to the above named judgment debtor and has been placed in the United States mail, with adequate postage thereon. THIS gy DAYOF ,20 JUANITA HICKS CLERK OF SUPERIOR FULTON COUNTY RG BY: DEPUTY 0 ILED IN OFFICE 1 8 surzmon nr FULTON ODUNTV q? NOTICE RE: FOREIGN JUDGMENT 2. ZEQ c1v1L ACTION FH.E 222 ?gf?d zig. 3/ 3%,7 Pursuant to Ge0rgia's ENFORCEMENT OF FOREIGN JUDGMENT O.C.G.A. 9-12-130, you are hereby notified that: Qgg?ga. [4 gg ZX Mug .. Judgment Creditor whose attomey is Tg 2 . /000 @4/gg; fg ago Ji has tiled a foreign judgment in this office in which you are the judgment debtor(s). This, day ?f Deputy Clerk??u?on Sup?r Court li /5 IN THE SUPERIOR COURT OF FULTON COUNTY STATE or I FILED IN OFFICE 1 -5 18 gi)05 . yl uz I FIJLTW XUNTY I #74 crvu. Acncu PLAINTIFF N0: amy//mfr? VS. Qhs/L7/Dvgz, 6fa/ DEFENDANT U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Mail Only; N0 Insurance Coverage Provided) l? msmge Ln Return Recenpt Fee Here .. Tmnpuseagearses cad? 4 IN omcs . .. 7 8 A [gn, nr . NOTICE RE: FOREIGN JUDGMENT CIVIL ACTION mma NUMBER: ;'/g623'7f7 QQ {2 gm 5; Uggzus Mqgz?, gg Pursuant to Ge0rgia's ENFORCEMENT OF FOREIGN JUDGMENT O.C.G.A. you are hereby notified that: 6 md a xv Judgment Creditor whose atiomeyis I gig, QQ Qgxg?n, 72 7?iW has filed a foreign judgment in this office in which you are the judgment debt0r(s). This, day of ,.20 . I Deputy C1 Fulton Iourt IN SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA I LED IN OFFICE Qygezgg 2%/Hd CIVIL ACTION FILE NO: gmx//us?/7 VS. a/ DEFENDANT U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Ma:} Only; N0 Insurance Coverage Provided} T. Postage Cemhec Fee I I Hm 2 Tumnvusmgearees 4 4{ I I uv cme; I Harm TLA P: coum . NOTICE RE: FOREIGN JUDGMENT ro; Z,/no civu. ACTION gi me NUMBER: QM?/gd37f7 5240 gf Pursuant to Ge0rgia's ENFORCEMENT OF FOREIGN JUDGMENT O.C.G.A. 9-12-130, you are hereby notified that: 6 md CL Judgment Creditor whose attomey is 2 2 . MM gg//gg?g QQ @4/vg jh 72 has filed a foreign judgment in this office in which you are the judgment debtor(s). This, [5 day of lg Deputy Og, Fulton ?gourt IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA LED IN OFFICE 'l 9 ju; 1 o=o- I noi./anus coum GA 3%/Hd CIVIL ACTION FILE NO: gmx//wsrf? VS. 5 6 d/ DEFENDANT U.S. Postal Service CERTIFIED MAIL RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) .11 JI Poskage .s Cemiv?d Fee 3 Hm CI Resmmea Denwy ree (Endorsement Reqwredl 3 Tm! smmgea. Fees I 4 .4 30 I (L A ILED IN OFFICE I I., {aL` NOTICE RE: FOREIGN JUDGMENT ro; Mr 1 crvu. ACTION mr; NUMBERggm?z gg Ziff Pursuant to Ge0rgia's ENFORCEMENT OF FOREIGN JUDGMENT O.C.G.A. 9-12-130, you are hereby notified that: 5 md . Judgment Creditor . whose attomey is 2 2 . has filed a foreign judgment in this office in which you are the judgment debtor(s). This, gf day of ,.20 Deputy C?erk, Fulton Superior Court if 7 SWORN AFFIDAVIT IN SUPPORT OF ENROLL JUDGMENT STATE OF TEXAS JUL 1 8 NB umm umu suvsmon coun couNrY or TARRANT Before me the undersigned Notary Public on this day personally appeared Jeffrey R. Allen, who being duly sworn under oath deposes and states: l. "My name is Jeffrey R. Allen. I am of sound mind, over the age of 2l, have never been convicted of a felony or of a crime involving moral turpitude and am fully competent to make this affidavit. I have personal knowledge of the facts stated in this affidavit and they are true and correct. 2. I am a licensed attorney in good standing in the State of Texas, and I am the attomey of record for Universal Cinema Services, Inc., Plaintiff and Judgment Creditor in the matter styled Universal Cinema Service, Inc. v. James Duyjjz, Individually; Cinema Grill Systems, Inc.; Backlot Management, Inc.; The Restaurant Entertainment Group, Inc; Entertainment Film Works, Inc.; and Entertainment Developers, Inc., in the 96th District Court for Tarrant County, Texas. Judgment in this matter was taken against Defendants, jointly and severally, on January l8, 2005, and a certified copy of said Judgment is filed with this Affidavit along with the requisite filing fee. 3. Pursuant to the Uniform Enforcement of Foreign Judgment Act as adopted by the State of Georgia, Universal Cinema Services, Inc., as Judgment Creditor requests that the Judgment be filed among the Court's records and be given force and effect under Georgia law. 4. I hereby certify that the last known mailing addresses of the Judgment Debtors in the above-referenced matter are as follows: James T. Duffy 990 Edgewater Drive Atlanta, Georgia 30328 Cinema Grill Services, Inc. P.O. Box 28467 Atlanta, Georgia 30358 Backlot Management, Inc. P.O. Box 28467 Atlanta, Georgia 30358 The Restaurant Entertaimnent Group, Inc. P.O. Box 28467 Atlanta, Georgia 30358 Entertainment Film Works, Inc. 5920 Roswell Road NE Atlanta, Georgia 30328 Entertainment Developers, Inc. 13720 Six Mile Cyprus, Ste. #2 Fort Meyers, Florida 33912 5. The mailing address of the Judgment Creditor is Universal Cinema Services, Inc., 1205 Corporate Drive East, Arlington, Texas 76006. The Judgment Creditor may be contacted for all purposes through counsel at the following address: Jeffrey R. Allen SHANNON, GRACEY, RATLIFF MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 Telephone:(8l7) 882-7616 Facsimile:(8l7) 877-8716 6. Further, affiant sayeth not." By re . All STATE OF TEXAS COUNTY OF TARRANT SUBSCRIBED AND SWORN TO AND AQTQNOWLEDGED BEFORE ME, by said Jeffrey R. Allen on this day of [un 2005 to certify which witness my hand and official seal of office. Notary Publ? %tate of Texas 15:* 2 uyc?m.??.1mamm Cause No. 096-2073 UNIVERSAL CINEMA SERVICES, INC., IN DISTRICT COURT Plaintiff, vs. JAMES T. DUFFY, Individually; CINEMA GRILL SYSTEMS, BACKLOT TARRANT COUNTY, TEXAS MANAGEMENT, THE RESTAURANT ENTERTAINMENT GROUP, ENTERTAINMENT FILM WORKS, ENTERTAINMENT DEVELOPERS, INC., Defendant. JUDICIAL DISTRICT DEFAULT JUDGMENT At the hearing on this cause, Plaintiff appeared through its attomey of record. Defendants James Duffy, Individually, Cinema Grill Systems, Inc., Backlot Management, Inc., The Restaurant Entertainment Group, Inc., Entertaimnent Film Works, Inc., and Entertainment Developers, Inc. (together, "Defendants"), although duly cited to appear and answer herein, have failed to tile an answer within the time allowed by law. The Court has considered the pleadings and records on file in this cause and the evidence herein and is of the opinion that judgment against Defendants should be rendered for Plaintiff in all respects. Accordingly, the Court finds as follows: WHEREAS, Defendants have engaged in a joint enterprise and fraudulent scheme directed at Plaintiff to defraud Plaintiff of materials and labor; WHEREAS, as a result of Defendants' actions, Plaintiff has been defrauded of material and labor worth in excess of $402,243 ,99; WHEREAS, Defendants have failed and refuse to pay the sums due and owing to Plaintiff despite repeated demands to do so, as more fully described in Plaintiffs' Original Petition, which is attached hereto as Exhibit and WHEREAS, Defendants have admitted the factual allegations contained in Plaintiffs' Original Petition by virtue of their default, which factual allegations are incorporated into this Judgment as though set forth fully herein; A ATTEST. gllmikl. I DEFAULT JUDGMENT A. HI DER Courts Mmutq?xGE 1 STRICT CL C0 _,mm Transaction It is aocordingly ORDERED, ADJUDGED, and DECREED that Universal Cinema Services, Inc., Plaintiff, recover from the above named Defendants, jointly and severally, judgment for-- l. $402,243.99 as the principal amount due; 2. Pre-judgment interest at the maximum rate allowed by law on the principal amount to the date of judgment; 3. 16,504.00 as atftorr1ey's fees incurred to date; additional fees to perform post-judgment discovery and execute and collect the Judgment in the amount of $5,000.00; additional reasonable fees to draft or respond to a motion for new trial in the amount of $2,500.00; additional reasonable fees in the event of appeal to the Texas Court of Appeals or other court of appeals in the amount of $5,000.00; and additional reasonable fees in the event of appeal to the Texas Supreme Court or other further appeal in the amount of $5,000.00. 4. $743.46 for expenses incurred herein; 5. Interest at the maximum rate allowed by law on the total Judgment from the date of Judgment until paid in full; and 6. All costs of Court. It is further ORDERED that Plaintiff shall have all writs of execution and other process necessary to enforce this Judgment. This Judgment is final and is appealable. SIGNED on this /Day of January, 2005. `l]UD%5f I DEFAULT JUDGMENT PAGE 2 es I. . A CauseNoU96 UNIVERSAL CINEMA SERVICES, INC., IN DISTRICT QQURT Plaintiff, vs. . . 5 JAMES T. DUFFY, Indmdually; CINEMA GRILL SYSTEMS, BACKLOT TARRANT COUNTY, TEXAS MANAGEMENT, THE RESTAURANT ENTERTAINMENT GROUP, ENTERTAINMENT FILM WORKS, ENTERTAINMENT 3 DEVELOPERS, INC., ii Defendant. 5 JUDICIAL DISTRICT 7 In . ZJ ORIGINAL PETITION if-* . (ji, Plaintifti Universal Cinema Services, Inc., tiles this Original Petition, complaining of Defendants James Duffy, Individually, Cinema Grill Systems, Inc., Backlot Management, Inc., The Restaurant Entertainment Group, Inc., Entertainment Film Works, Inc., and Entertainment Developers, Inc. (together, "Defendants"), and in support thereof shows the following; 1. Discovery is intended to be conducted under Texas Rule of Civil Procedure 190.3 (Level 2). Pursuant to Rule 216 of the Rules of Civil Procedure, Plaintiff hereby demands ajury trial, and has paid the requisite fee. Parties 2. Plaintiff is a Texas corporation whose principal place of business is in Tarrant County, Texas. 3. Defendant James T. Duffy is an individual residing at 990 Edgewater Drive, Atlanta, Georgia 30328. As a non-resident individual doing business in the state of Texas, but who does not maintain a residence . business in the state of Texas, and who has not ORIGINAL PETITION PAGE 1 vv AH i designated or maintained a designated or registered agent for service of process in the state of Texas, Defendant James T. Duffy may be served with process pursuant to Section l7.044(b) of the Civil Practices and Remedies Code, ?by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to Defendant James T. Duffy's home: 990 Edgewater Drive, Atlanta, Georgia 30328. 4. Defendant Cinema Grill Services, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the state of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but who does not maintain a designated or registered agent for service of process in the State of Texas, Defendant Cinema Grill Services, Inc., may be served with process pursuant to l7.044(b) of the CIVIL Pimcricas AND Coma, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's home office: P.O. Box 28467, Atlanta, Georgia 30358. 5. Defendant Backlot Management, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but who does not maintain a designated or registered agent for service of process in the state of Texas, PLAINTIFPS ORIGINAL PETITION PAGE 2 Defendant Backlot Management, Inc., may be served with process pursuantto l7.044(b) of the CIVIL PRACTICES AND REMEDIES CODE, by serving the Texas Secretary of State, Citations Unit, P. 0. Box 12079, Austin, Travis County, Texas 787ll-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at me mailing address of Defendant's home office: P.O. Box 28467, Atlanta, Georgia 30358. 6. Defendant The Restaurant Entertairnnent Group, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is P.O. Box 28467, Atlanta, Georgia 30358. As a foreign corporation doing business in the State of Texas, but not required to maintain a designated or registered agent for service of process in the State of Texas, Defendant The Restaurant Entertainment Group, Inc., may be served with process pursuant to Section l7.044(b) ofthe Civil Practices and Remedies Code, by sewing the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to said Defendant, at the mailing address of Defendant's home office: P.O. Box 28467, Atlanta, Georgia 30358. 7. Defendant Entertaimnent Film Works, Inc., is a Georgia corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is 5920 Roswell Road NE, Atlanta, Georgia 30328. As a foreign corporation doing business in the State of Texas, but not required to maintain a designated or registered agent for service of process in the State of Texas, Defendant Entertainment Film Works, Inc., may be served with process pursuant to ORIGINAL PETITION PAGE 3 Section l7.044(b) of the Civil Practices and Remedies Code, by sewing the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward a copy of suit papers and citation to the mailing address of Defendant's home office: 5920 Roswell Road NE, Atlanta, Georgia 30328. 8. Defendant Entertainment Developers, Inc., is a Nevada corporation that does not maintain a designated or registered agent for service of process or a regular place of business in the State of Texas, and whose principal place of business mailing address is 13720 Six Mile Cyprus, Ste. Fort Meyers, Florida 33912. As a foreign corporation doing business in the State of Texas, but not required to maintain a registered agent for service of process in the State of Texas, Defendant Entertainment Developers, Inc., may be served with process pursuant to Section l7.044(b) of the Civil Practices and Remedies Code, by serving the Texas Secretary of State, Citations Unit, P. O. Box 12079, Austin, Travis County, Texas 78711-2079, who should then provide notice pursuant to Section l7.045(a) of the Civil Practices and Remedies Code and forward suit papers and citation to said Defendant, at the mailing address of Defendant's home office: 13720 Six Mile Cyprus, Ste. Fort Meyers, Florida 33912. urisdietion and Venue 9. This Court has jurisdiction over Defendants because all Defendants engaged in business in Tarrant County, Texas, by conspiring to defraud Plaintiff in Tarrant County, Texas, committing fraud and misrepresentation in Tarrant County, Texas, and entering into a series of contractual agreements with Plaintiff (whether directly or through other Defendants as agents), payment under which was to be made to Plaintiff in Tarrant County, Texas, and the matters at issue herein arise out of those actions. This Court has jurisdiction over the amount in ORIGINAL PETITION PAGE 4 i I I controversy because the damages sought are within this Court's jurisdictional limits. Venue is proper in Tarrant County, Texas because all or a substantial part of the acts or omissions giving rise to the Plaintiffs claims occurred in this county, and Plaintiff is located in this county. Background 10. Plaintiff is a Tarrant County company in the business of designing and constructing the finished interiors of movie theatres, including, among other things, the installation of movie screens, projection equipment, sound systems, and seating. ll. The corporate Defendants, (together, the "Duffy Entities") are nominally five separate entities incorporated under Georgia law (in the cases of Cinema Grill Services, Inc., Backlot Management, Inc., Entertainment Film Works, Inc., and The Restaurant Entertainment Group Inc.) and Nevada law (in the case of Entertainment Developers, Inc.). On information and belietj Defendants are operated as a joint business enterprise, and/or as alter egos of Defendant Duffy. Defendant Duffy is listed with the Georgia Secretary of State as the chief executive officer, chief financia.l officer, and secretary of Cinema Grill Services, Inc., Backlot Management, Inc., and The Restaurant Entertainment Group, Inc. All three of these Defendant entities list the same post office box in Atlanta, Georgia, as their mailing address, and all three list the same agent for service of process within the state of Georgia: Sonya White, 228 Water Tank Road, Atlanta, Georgia 30132. On information and belief, Defendant Entertainment Film Works, Inc., and Defendant Entertainment Developers, Inc., are also wholly owned and controlled by Duffy. On infonnation and belief] Defendant Duffy used the Duffy Entities, and possibly other entities, in a concerted effort to fraudulently deprive Plaintiff of its goods and services, with the intention from the outset of never paying Plaintiff for said goods and services. PLAINTIFPS ORIGINAL PETITION PAGE around October 2003, Plaintiff was contacted in Tarrant County, Texas, by representatives of Defendants regarding a possible arrangement between Plaintiff and Defendants by which Plaintiff would provide certain materials and labor for the fmish-out of three separate theater projects. Defendants were developing said theaters in Rocky Mount, North Carolina, Columbus, Ohio, and Cincinnati, Ohio (the "Projects"). Ultimately, after submitting a credit application under the name of Defendant Cinema Grill Services, Inc., along with industry references (including a credit reference from Defendant Backlot Management, Inc.) to Plaintiff, Defendants established an account with Plaintiff under which Defendants would submit oral or written purchase orders for equipment and installation thereof for the Projects which Plaintiff could accept or reject as Plaintiff determined (referred to collectively herein as the "C0ntracts"). As Plaintiff understands the Projects, Defendants acted as the general contractor for the Projects, and acted as the liaison between all subcontractors (including Plaintiff) and the owners of the retail outlets in which the Projects were located. On information and belief, either Defendants or separate entities set up by Defendants were to be the operators of the Projects once the theatres were up and running. Upon information and belief the only theater still in operation of the three is the Cincinnati theater, operated by Defendant Entertainment Developers, Inc. Upon information and belief, Defendant Enterta.inment Developers, Inc., acted through the other Defendants as its agents, including Defendants Duffy and Cinema Grill Services, Inc., to solicit goods and services from Plaintiff 13. Under the terms ofthe Contracts, Defendants were to pay amounts due and owing within 21 days of receipt of the invoices. Payment was to be made to Plaintiff in Texas. Over a period of several months, Plaintiff provided substantial amounts of labor and material to the three Projects at Defendants' request, and billed Defendants accordingly. Over the course of the ORIGINAL PETITION PAGE 6 . I i three Projects, Plaintiff received only two payments from Defendants, in the form of two checks from Defendant Backlot Management, Inc, signed by Defendant Duffy. 14. As the amounts due and owing (yet unpaid) on Defendants' account began to age, employees of Plaintiff contacted Defendants to inquire as to the state of Defendants' finances and the status of the Projects. Plaintiffs were assured repeatedly by Defendants, including Defendant Duffy, that Defendants had the ability and intention of paying all amounts owed to Plaintiff and that would be incurred as a result of future orders. Specifically, Defendant Duffy stated to Plaintiff on one occasion that Defendants would pay Plaintiff as soon as the landlord on one of the Projects paid Defendants, which was supposed to happen in a matter of one or two weeks. On another occasion, Defendant Duffy stated to Plaintiff that he expected to receive a check soon and would pay Plaintiff when he got it. On still other occasions, Defendant Duff`y pleaded with Plaintiff to keep Defendants' account open because he had "some money coming" and would be able to pay Plaintiff In reliance on Defendant Duffy's (upon information and belief, false) representations in this regard, Plaintiff fulfilled additional orders from Defendants relating to the Projects. 15. Eventually, the past-due amounts owing to Plaintiff on Defendants' Projects rose to $402,243 .99, and Plaintiff refused to provide additional goods or services to Defendants until paid. Despite repeated demands by Plaintiff to pay these amounts, Defendants refused. Eventually, Plaintiff retained the services of counsel, who sent a written demand for payment to Defendants. Defendants failed and refused, and continue to fail and refuse, to pay the amounts due and owing to Plaintiff. 16. Incredibly, when confronted with a demand for payment on the account with Plaintiff Defendant Duffy responded in a letter dated April 29, 2004, that "Cinema Grill PLAINTIFF's ORIGINAL PETITION PAGE 1 Systems, Inc., did not contract with Universal Cinema Services, Inc." for the labor and material on which the demand for payment was made. Defendant Duffy states in the same letter that Defendant Cinema Grill Systems, Inc., "licenses to others the right to operate Cinema Grill" and that he thinks Plaintiffs "dealings were with the Operator/Licensee, and that any question regarding any claims or obligations need to be directed to the appropriate party." This response, while clearly contrary to the facts (because Cinema Grill Systems, Inc. is the name in which Defendants applied for an account with Plaintiff, and the name in which Defendants were invoiced), serves to illustrate the shell game that Defendants attempted to play on Plaintiff On information and belief, Defendants entered into the Contracts wit.h Plaintiff`, and induced Plaintiff into said Contracts, with the present intention not to pay the charges incurred under the Contracts. Moreover, on information and belief Defendants conspired (at Duffy's direction) to structure the transactions in such a way that one Defendant entity would act nominally as the contracting party with Plaintiff while another entity entered a lease on a given Project, while yet another entity acted as the eventual operator of each Project, all with the intent of jointly defrauding Plaintiff and leaving Plaintiff no readily available recourse when Defendants ultimately defaulted on the Contracts. Conspiracy 17. Plaintiff incorporates by reference the allegations contained in paragraphs 1- 16 herein as if fully set forth at length. 18. The actions of Defendants as described above amount to a conspiracy to defraud Plaintiff On information and belief Defendants reached a meeting of the minds to act in concert with one another to fraudulently induce Plaintiff into providing goods and services for which Defendants had no intention to pay. At least two of the Defendants, James T. Duffy and Cinema ORIGINAL PETITION PAGE 8 i Grill Services, Inc., committed overt acts of fraud and misrepresentation in furtherance of said conspiracy, for the benefit of themselves and the other Defendants, resulting in monetary damages in an amount within the jurisdictional limits of the Court, for which Plaintiff sues. Fraudulent Misrepresentation/Negligent Misrepresentation and Exemplary Damages 19. Plaintiff incorporates by reference the allegations contained in paragraphs 1- 18 herein as if fully set forth at length. 20. Defendants herein colluded to defraud Plaintiff of its goods and services by representing to Plaintiff a willingness and ability to pay all sums that would become due and owing with no intention and/or ability to actually pay said sums. Furthermore, Defendant Duffy made numerous representations to Plaintiff that the goods and services being provided by Plaintiff would be paid for, even alter Plaintiff became coneemed about Defendants' growing late balance and asked for assurances from Defendants of Defendants' willingness and ability to pay amounts due and owing. Defendants made such representations despite the fact that they knew they had no intention of paying the amounts due and owing, and/or despite the fact that they knew or should have known they had no ability to pay such amounts. Plaintiff repeatedly relied on these misrepresentations, first in entering into the Contracts to begin with, and then in continuing forward in providing goods and services to Defendants. 21. As a direct and proximate result of the misrepresentaticns by Defendants, Plaintiff has incurred damages within the minimum jurisdictional limits of the court, for which sums Plaintiff now sues. Furthermore, because of Defendants' willfully fraudulent conduct, Plaintiff is entitled to an award of exemplaiy and punitive damages, for which it sues. PLAINTIFWS ORIGINAL PETITION PAGE 9 A 1 i Breach of Contract 22. Plaintiff incorporates by reference the allegations contained in paragraphs l- 2l herein as if fully set forth at length. 23. The behavior described above constitutes material breach of the Contracts on the part of Defendants. 24. The Plaintiff complied with its obligations pursuant to the Contracts, and provided materials and labor to Defendants. However, Defendants failed to fulfill their contractual obligations by failing to pay all a.mounts due and owing as agreed. 25. Defendants' failure to comply with their contractual obligations as described herein constitutes breaches of the Contracts, which have proximately caused damages to the Plaintiff in an amount within the jurisdictional limits of this court, for which sums the Plaintiff now sues. 26. All conditions precedent have been or have occurred as required by Tex. R. Civ. P. 54. Unjust Enrichment/Quantum Meruit 27. The Plaintiff incorporates by reference the allegations contained in paragraphs 1- 26 herein as if fully set forth at length. 28. In addition and in the altemative to the causes of action set out above, Plaintiff asserts a right to recover the fair market value of the goods and services provided to Defendants under the doctrine of unjust enrichment. Defendants have received the benefit of Plaintiff' goods and services without compensating Plaintiff. For this reason, Plaintiff sues for quantum meruir damages from Defendants in an amount within the jurisdictional limits of this Court. Alter Ego PLAINTIFPS ORIGINAL PETITION PAGE 10 tf I 29. Plaintiff incorporates by reference the allegations contained in paragraphs 28 herein as if hilly set forth at length. 30. Upon infomation and belief Defendant Duffy operates the Duffy Entities merely as alter egos of himselti and uses the Defendant entities in furtherance of his fraudulent schemes. For these reasons, the Court should find that the actions and liabilities of the Duffy Entities are attributable in all respects to Duffy individually. Damages 31. As a direct and proximate result of Defendants conduct, as set forth herein, Plaintiff has been damaged in an amount within this court's jurisdictional limits. Att0rney's Fees 32. Plaintiff incorporates by reference the allegations contained in paragraphs l- 30 herein as if fully set forth at length. 33. Due to the actions of Defendants as set out in this petition, Plaintiff has been forced to retain the services of the undersigned law firm. Plaintiff has agreed to pay the undersigned a reasonable fee for its services necessarily rendered and to be rendered in pursuing Plaintiffs claims against Defendants. Therefore, pursuant to TEX. CIV. PRAC. RBM.. CODE 38.001, et seq., and other Texas law, Plaintiff is entitled to an award of reasonable attorr1eys' fees and expenses in an amount to be established at trial. Prayer Plaintiff respectfully requests that Defendants be cited to appear and answer herein, and that upon final hearing hereof: Plaintiff recovers its actual damages suffered as a result of Defendants' civil conspiracy, fraudulent and negligent misrepresentations, breach of contract; ORIGINAL PETITION PAGE 11 . I i Plaintiff recovers exemplary and punitive damages for Defendants' knowing and willful conspiracy and fraud; Plaintiff recovers the value of the goods and services provided to Defendants Imder quantum meruir; Plaintiff recovers all its damages, costs, and expenses, including reasonable and necessary attomeys' fees and expenses incm?red in bringing this action; Plaintiff recovers pre-judgment and post-judgment interest at the maximum rate allowed by law; and Plaintiff have and recover any and all other relief, special or general, legal or equitable, as the Court deems appropriate. Respectfully Submitted, ta Bar o. 07321900 Jeffrey R, Allen State Bar No. 24006751 SHANNON, GRACEY, RATLIFF MILLER, L.L.P. 1000 Ballpark Way, Suite 300 Arlington, Texas 76011 882-7616 Facsimile:(8l7) 795-4864 ATTORNEYS FOR PLAINTIFF el tmsaamwraaengw. paatramc ORIGINAL PETITION PAGE 12