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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
LEE ANISMAN, )
)
Plaintiff, )
)
v. ) Civil Action No.: ______________
)
TYLER CALKINS, )
)
Defendant. )
COMPLAINT
COMES NOW Plaintiff Lee Anisman, by and through his undersigned attorney, and for
his Complaint against Defendant, Tyler Calkins, in this action, respectfully states as follows:
PARTIES
1.
Plaintiff is an adult resident and domiciliary of the State of Florida.
2.
Defendant Tyler Calkins is an adult resident and domiciliary of the State of Georgia,
maintaining as his principal residence in this State, 1353 Meridian Street, SW, Atlanta, DeKalb
County, Georgia 30317. Said Defendant may be served with process in this action by service at
the aforesaid address and therefore is subject to the jurisdiction of this Court. Jurisdiction is
proper in this Court based on the complete diversity of the parties pursuant to 28 U.S.C.
1332(a), and because the matter in controversy exceeds the sum of $75,000.
3.
Venue of this action is proper in this Court and Northern District, being the District
where Defendant resides.
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4.
Plaintiff and Defendant were formerly friends. In the Spring of 2013, Plaintiff agreed to
co-sign on a loan for Defendant in the amount of $165,000.00 so that Defendant could purchase
and take over operations of Georgia Voice newspaper (hereinafter SunTrust Loan). By May,
2013, Plaintiff had decided he wanted no part of the purchase of the magazine, but he remained
willing to assist Defendant on obtaining the needed funds so that Defendant could make this
purchase. The SunTrust Loan was procured for the specific purpose of assisting Defendant with
the purchase of Georgia Voice newspaper and taking over operations of the magazine and for no
other purpose. Both Plaintiff and Defendant are obligated as co-signers on the SunTrust Loan.
5.
Plaintiff was not involved in negotiations for the purchase of Georgia Voice by
Defendant after May 16, 2013. Nevertheless, Defendant gave Plaintiff regular updates regarding
the status of the negotiations after May 13, 2013 and repeatedly misled Plaintiff regarding
Defendants intentions for the use of the financing Plaintiff had agreed to provide toward the
Georgia Voice transaction, including how the funds were to be applied, what personal and other
debts were going to be paid with the funds intended for the Georgia Voice purchase, and whether
the purchase was likely to succeed. Plaintiff would have never agreed to the SunTrust Loan if
Defendant had not misrepresented his intentions and the likelihood of success of the intended
purchase of Georgia Voice.
6.
Plaintiff and Defendant signed the loan documents on August 26, 2013. On August 27,
2013, SunTrust disbursed the proceeds from the SunTrust Loan to Defendant without informing
Plaintiff that it was doing so. Plaintiff learned subsequent to this disbursement that the loan was
disbursed in one certified check made payable to TW Media Group, LLC, and that a payment
coupon book was issued to Defendant. At no time during discussions leading up to the
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agreement between Plaintiff and Defendant for the SunTrust Loan and the date of disbursement
did Plaintiff know about Defendants intention to have the loan proceeds disbursed in the name
of TW Media Group, LLC.
7.
After the SunTrust Loan proceeds were disbursed, Defendant used the funds for his own
personal expenses and for expenses related to his magazine Fenuxe. He made several payments
to SunTrust on the loan but stopped making any payments on the SunTrust Loan after January
2014.
8.
It appears now that negotiations for the purchase of Georgia Voice by Defendant were
ended in July 2013 following a dispute over a story reported in Defendants magazine Fenuxe.
However, Defendant continued to represent to Plaintiff that negotiations were ongoing during
this time. As late as August 19, 2013, Defendant presented Plaintiff with cash flow projections
for the new business of the Georgia Voice and promised that Defendant would be able, based on
those projections, to make payments on the SunTrust Loan. On or about September 19, 2013,
Georgia Voice formally terminated negotiations with Defendant and cancelled the planned
purchase by Defendant.
9.
Despite the cancellation of the purchase of Georgia Voice newspaper, Defendant retained
the SunTrust Loan proceeds, used those funds for his own individual expenses and now refuses
to repay this obligation. Plaintiff has been forced to take over payments on the SunTrust Loan
as a result of Defendants actions.
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COUNT ONE
DAMAGES FOR BREACH OF CONTRACT
10.
The facts, statements and allegations contained in Paragraphs 1 through 9 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
11.
Plaintiff herein sues Defendant for breach of contract.
12.
An express contract was made between Plaintiff and Defendant concerning the SunTrust
Loan, the terms of which included: Plaintiff would provide financing for Defendant to purchase
and begin operations of Georgia Voice Magazine, and Defendant would repay the SunTrust Loan
in full.
13.
Plaintiff fully performed his obligations under such contract.
14.
Defendant breached his contract with Plaintiff by failing to use the SunTrust Loan
proceeds as intended, by using those proceeds for his own personal expenses, and by failing and
refusing to repay the SunTrust Loan, which breach has injured Plaintiff in the amount of at least
$165,000.00 and in such further amounts as shall be shown at trial, for which Plaintiff is entitled
to relief in this action.
WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars:
(a) Damages for breach of contract, in an amount to be shown by the evidence at
trial; and,
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(b) Such further relief, as this court, in its discretion, deems proper.
COUNT TWO
ACCOUNTING
15.
The facts, statements and allegations contained in Paragraphs 1 through 14 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
16.
Plaintiff herein seeks an accounting of the application and use of the SunTrust Loan
proceeds by Defendant.
17.
Plaintiff fully performed his obligations under the terms of the agreement to provide
financing toward the purchase and operation of Georgia Voice Magazine by Defendant, and he
now seeks an accounting by Defendant of how those funds were used.
18.
Defendant refuses to repay the SunTrust Loan funds he obtained in the name of TW
Media, LLC and has communicated to Plaintiff his intention to keep such funds for his own.
WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars with regard to the SunTrust Loan:
(a) An order compelling Defendant to specifically account for the use of the SunTrust
Loan funds; and,
(b) Such further relief, as this court, in its discretion, deems proper.
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COUNT THREE
DAMAGES IN QUANTUM MERUIT
19.
The facts, statements and allegations contained in Paragraphs 1 through 18 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
20.
To the extent that the Court fails or refuses for any reason to grant to Plaintiff the relief
described above with regard to the express contract made between the parties in those regards,
Plaintiff herein sues Defendant for damages in quantum meruit.
21.
If no express contract existed between the parties with regard to the SunTrust Loan, at
least an implied contract existed, such that if Defendant took possession of the SunTrust Loan
funds and refused to account for those funds, he should pay to Plaintiff the full amount he
obtained.
22.
Defendant breached such implied contract by taking possession of the SunTrust Loan
funds by false pretenses and representations, and then using said funds for purposes those funds
were not intended for, which actions have injured Plaintiff in the amount of at least $165,000.00
and in such further amounts as shall be shown at trial.
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23.
It would be manifestly unfair and inequitable for Defendant to retain possession of the
SunTrust Loan funds without compensating Plaintiff therefore. Defendant accepted the benefits
of the SunTrust Loan in question and should be obligated to pay Plaintiff the fair value thereof.
WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars:
(a) Damages in quantum meruit, in the amount of at least $165,000.00, and in such
further amounts as shall be shown by the evidence at trial; and,
(b) Such further relief, as this court, in its discretion, deems proper.
COUNT FOUR
DAMAGES IN UNJUST ENRICHMENT
24.
The facts, statements and allegations contained in Paragraphs 1 through 23 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
25.
To the extent that the Court fails or declines for any reason to grant to Plaintiff the relief
described above with regard to the SunTrust Loan, and to the extent that the Court concludes that
no express contract was made between the parties in those regards, Plaintiff herein sues
Defendant for damages for unjust enrichment.
26.
If no express contract existed between the parties with regard to the SunTrust Loan,
Defendant was still unjustly enriched by having wrongfully taken possession of the SunTrust
Loan funds and not using the funds for the intended purpose, and then not repaying the funds as
agreed. This conferred a benefit upon Defendant that Defendant accepted. Under the
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circumstances of this action, Defendant should return or reasonably compensate Plaintiff for
such benefit, in an amount to be shown by the evidence at trial.
WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars:
(a) Damages for unjust enrichment in the amount of at least $165,000.00, and in such
further amounts as shall be shown by the evidence at trial; and,
(b) Such further relief, as this court, in its discretion, deems proper.
COUNT FIVE
DAMAGES FOR CONVERSION
27.
The facts, statements and allegations contained in Paragraphs 1 through 26 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
28.
Plaintiff herein sues Defendant for damages for conversion. Defendant took the subject
SunTrust Loan funds in the name of TW Media, LLC without Plaintiffs knowledge or consent,
he has refused and failed to repay said funds despite the cancellation of the Georgia Voice
purchase and in doing so committed conversion. Such conversion has injured Plaintiff in an
amount to be shown by the evidence at trial and for which Plaintiff is entitled to relief in this
action.
WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars:
(a) Damages for conversion, in an amount to be shown by the evidence at trial; and,
(b) Such further relief as this court, in its discretion, deems proper.
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COUNT SIX
DAMAGES FOR FRAUD
29.
The facts, statements and allegations contained in Paragraphs 1 through 28 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
30.
Plaintiff herein sues Defendant for damages for fraud. Defendant took the subject
SunTrust Loan funds by means of misrepresentation and duplicity by multiple email and other
communications from May 2013 until September 2013, by misleading Plaintiff regarding his
intentions for the use of the funds, by misleading Plaintiff of the chances of success in the
purchase of Georgia Voice Magazine, by his intention to have the funds made payable in the
name of TW Media, LLC and deposited in a TW Media, LLC bank account without Plaintiffs
knowledge or consent, and by his intention to fail and refuse to repay said funds. Such fraud has
injured Plaintiff in an amount to be shown by the evidence at trial and for which Plaintiff is
entitled to relief in this action.
31.
Defendant committed further fraud against Plaintiff when, after obtaining the SunTrust
Loan funds through false pretenses, he then began receiving personal mail intended for Plaintiff
and refused to return it to either the Post Office or to Plaintiff despite repeated requests and
demands that he do so. Upon information and belief, Defendant hid from the United States
Postal Inspector who inquired into this matter, and allegedly checked himself into a mental
health facility in order to avoid questioning. Plaintiff has suffered damages on account of these
actions in an amount to be shown by the evidence at trial.
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WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars:
(a) Damages for fraud, in an amount to be shown by the evidence at trial; and,
(b) Such further relief as this court, in its discretion, deems proper.
COUNT SEVEN
ATTORNEYS FEES
32.
The facts, statements and allegations contained in Paragraphs 1 through 31 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
33.
Plaintiff herein sues Defendant for attorneys fees and expenses of litigation.
34.
Defendant entered into a contract with Plaintiff in bad faith, has been unduly litigious
herein, and/or has caused Plaintiff such unnecessary trouble and expense, that Plaintiff is entitled
to recover from Defendant his attorneys fees and expenses of litigation pursuant to O.C.G.A.
13-6-11, in an amount to be shown by the evidence at trial.
WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars:
(a) Attorneys fees and expenses of this litigation, in an amount to be shown by the
evidence at trial; and
(b) Such further relief as this court, in its discretion, deems proper.
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COUNT EIGHT
PUNITIVE DAMAGES
35.
The facts, statements and allegations contained in Paragraphs 1 through 34 of this
Complaint are hereby reaverred and reaffirmed in every particular and are incorporated herein by
reference.
36.
Plaintiff herein sues Defendant for punitive and/or exemplary damages.
37.
Defendants actions against Plaintiff as described herein, including conversion and fraud,
show willful misconduct, malice, wantonness, oppression and that entire want of care as would
raise the presumption of conscious indifference to the consequences. Accordingly, pursuant to
O.C.G.A. 51-12-5.1, Plaintiff is entitled to punitive damages against Defendant, to punish,
penalize, and deter Defendant from repeating such conduct in the future.
WHEREFORE, Plaintiff demands judgment against Defendant in the following
particulars:
(a) Punitive damages in an amount to be shown by the evidence at trial; and
(b) Such further relief as this court, in its discretion, deems proper.
RESPECTFULLY SUBMITTED this the 6
th
day of October, 2014,
WELSH LAW, LLC
By:__/s/ Michael Shane Welsh_________
Michael Shane Welsh
Georgia Bar No.:005541
275 Fourteenth Street, N.W., Suite 200
Atlanta, Georgia 30318
(404) 890-0044
Counsel for Plaintiff
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