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Kimery v. Unicoi County Insurance Agency6/2/2003
In this action plaintiff sought dissolution of a corporation and distribution of assets and named defendants Jack McKinney and Unicoi County Insurance. He claimed defendant owned 50% of the corporation, and that the directors were deadlocked and could no longer conduct business. He further alleged that McKinney had acted illegally by misapplying and wasting corporate assets. He further alleged that he had been locked out of the business and sought $100,000.00 in damages, and the appointment of a receiver.
The McKinneys filed an Answer, Counter-Complaint, and Third Party Complaint, alleging that the proper name of the corporation was Unicoi County Insurance and Diversified Services, Inc., and that the corporation was created by McKinney, and that McKinney was originally the sole shareholder. He further alleged that in 1992 he sold Kimery 49% of the shares of stock for $47,000.00 to be paid in installments, and that the last installment was never paid. The agreement provided that if any installments were not timely paid, the stock would be conveyed back to McKinney, and McKinney would be entitled to keep any funds paid as damages.
McKinney further alleged that Kimery took money from the corporation for his own personal use, failed to file the annual report, and charged personal expenses to the corporation, and that these actions were taken while McKinney was recuperating from a heart attack.
Thereafter, Kimery's attorney withdrew and the trial was continued to a later date. Kimery procured a new attorney, but then sent a letter to the Court on his own behalf, requesting mediation. Kimery's new attorney filed a Motion to Withdraw, which the Court allowed, and no other attorney appeared on Kimery's behalf. At some point the Court granted the Motion to Mediate and the plaintiff subsequently objected to mediation and the Court then set the case for trial on February 12, 2002.
On January 27, 2002, Kimery wrote to the court clerk, as follows:
On January 17, 2002, Mr. Arthur M. Fowler filed an Order to Mediation of our case. This past week We have received notice to withdraw at my approval, and change the date of court to an earlier date, The change in Mediation was without my approval as stated.
At this we request to keep the Mediation as we feel it would be to our better interest.
And the requested change of court date would not be good for us, due to time needed to prepare the case with legal help.
Then plaintiff wrote a letter to the Court on February 5, 2002, which made various charges about the witnesses on the McKinneys' witness list, and listed the witnesses which Kimery intended to call. At the end of the letter, Kimery stated:
We pled that it would be granted a continuance for at least sixty 60 days to prepare with our new council as he has requested to do so, this given time to prepare due to the long time taken to seek legal council;
Also at this we request to keep the Mediation as we feel it would be to our better interest if continuance not granted.
On the assigned trial date, the Court called the case and asked if Kimery was there, and he could not be located in the courthouse. The Court noted that no attorney had appeared on Kimery's behalf, and that Kimery's prior attorneys had withdrawn. The Court, upon review of the file, noted the case had been pending for two years, and that there had been problems with discovery, etc., and that Kimery had attempted to obstruct the progress of the case to trial, and that "from this voluminous file that probably weighs now in excess of two pounds, it appears that he has an aim to delay and to not meet the merits
Page 1 2 3 4 Tennessee Personal Injury Attorneys
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