Caton v. JIK Enterprises Inc.

16 Pa. D. & C.5th 410
CourtPennsylvania Court of Common Pleas, Lehigh County
DecidedJuly 16, 2010
Docketno. 2007-C-0750
StatusPublished

This text of 16 Pa. D. & C.5th 410 (Caton v. JIK Enterprises Inc.) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lehigh County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caton v. JIK Enterprises Inc., 16 Pa. D. & C.5th 410 (Pa. Super. Ct. 2010).

Opinion

VARRICCHIO, J.,

This case involves three individuals: Kathleen C. Catón, plaintiff and Mother; Irene J. Catón, defendant and Daughter; and John Nicnick, defendant and live in partner of Daughter. There are four corporations relevant to this law suit and all were controlled solely by Irene and John. Kathleen was a shareholder in one of the corporations and there has been ongoing litigation since the time when she sought to redeem her shares, eight years ago. The issue in this case is whether Irene and John, in order to avoid paying Kathleen, conveyed away all of the assets of that corporation; after a non-jury trial, this court finds that they did so, intentionally and fraudulently.

All of the parties were involved in the sale of Auntie Anne’s pretzels, a franchise business. There were several different business locations, each created at different times and each having a separate corporation. Initially, in 1993 Kathleen invested and became a shareholder in JIK Enterprises; presumably JIK refers to John, Irene, and Kathleen. John, secretary, and Irene, president, were the sole corporate officers, and Kathleen was a nonvoting shareholder. This business operated out of Zem’s Farmers Market in Gilbertsville, Pennsylvania. Six years after the start of business operations, January 1999, John, Irene, and Kathleen entered into a shareholders’ buy/sell agreement (P-19). In part, the agreement established that the price for the company’s purchase of shares shall be equal to the greater of $50,000 or 2/3 of the prior fiscal year’s gross sales.

[413]*413It appears from the record that sometime between 1993 and 1999 profits began to shift from JIK to Sassafras Management Inc., the fourth corporation. Sassafras, designed and controlled by Irene and John, increased JIK costs and reduced JIK profits in that JIK employees, formerly paid by JIK, were hired, employed and paid by Sassafras. On paper, the purpose of Sassafras was to reduce overall operating costs through the centralized administration of accounting and payroll for JIK, and the two other pretzel business operations, CM Enterprises Inc. and ETN Enterprises Inc. Instead of three separate payrolls from the three corporations, all of the payrolls were paid from Sassafras. Sassafras would bill JIK, CM, and ETN a management fee at a rate of 125 percent of the payroll. This rerouting of JIK payroll thru Sassafras reduced the profits available to Kathleen and increased those to Irene and John.

In June 2001, Kathleen gave written notice to Irene and John that she wished to redeem her shares pursuant to the agreement. The parties were unable to agree upon a buy out; Mother brought legal action in January 2002 against daughter and her partner.1 Kathleen’s complaint was filed individually and on behalf of JIK, derivatively, against John and Irene, individually, and JIK (P, 19). She alleged, among other things, that John and Irene breached the buy/sell agreement as well as their fiduciary duties by reducing the profits of JIK to the benefit of their other corporations via excessive management fees. Two and one-half years later, and less than a month from trial, the litigation settled in June 2004. A settlement agreement, release, and promissory note was executed [414]*414by the parties (P, 1). By its terms, JIK was to pay Kathleen $50,000; $5,000 down and $747.05 monthly for 84 months with 10 percent interest per annum beginning July 1, 2004. The debt was secured with a promissory note.

In the meantime, unbeknownst to Kathleen, 45 days prior to the settlement of the litigation with Kathleen, John and Irene had executed a security agreement on April 19,2004 in the amount of $200,000 and a judgment note in the amount of $86,008.71 in favor of Sassafras and against JIK (D, 1-3). The UCC filing financing statement was filed April 26,2004. Irene in her candid deposition testimony of September 25, 2007 stated that the purpose of the security agreement and of the note was to get Sassafras ahead of Kathleen. She agreed that its purpose was to ensure that Sassafras would get the money from JIK before Kathleen would get money from JIK. Her less than credible testimony at trial attempted to downplay her admission; she explained that she had other pressing matters, like unpaid taxes. Irene’s true colors were revealed on the checks that she sent pursuant to the settlement agreement in June and in August of 2004 to her mother. On the first check, Irene drew a shark (which Irene testified was simply a fish) and on the third check she drew a cockroach which took up half of the face of the check (P, 3 and 4).

The parties continued to battle in court. This time Daughter and her partner sued Mother; September 2004, Irene and John sued Kathleen for $31,000, the legal fees that they individually incurred defending the litigation initiated by Mother (P, 10).2 The case went to arbitration [415]*415seven months later in April 2005; judgment was entered in favor of Kathleen. No appeal was taken. These legal fees of Irene and John, individually, were ultimately paid by JIK.3

Payments to Mother pursuant to the settlement agreement continued to be made until Irene and John sold JIK; August 24,2006, JIK was sold for $85,000 to 14M LLC rendering JIK insolvent. At the time of the asset sale, after payment of approximately $ 14,000 of attorney fees and the subsequent transfer of the proceeds to Sassafras, JIK remained indebted to Kathleen in the amount of $34,248.45. None of the proceeds from the asset sale were utilized to repay the JIK corporate debt to Kathleen. However, Irene and John did choose to pay their own attorney fees out of the sale of JIK.

There were disbursements made at the settlement that indicate that despite the UCC filing, Irene and John decided what debts would be paid from the sale of JIK. The settlement statement for the sale of JIK included disbursements in the amount of $3,911.85 paid to Tallman, Rudders, & Sorrentino P.C. on behalf of JIK for attorney fees owed for JIK/Zern’s and JIK litigation. Irene clarified that some of these attorney fees were those owed individually by her and John for their defense in the litigation brought by Kathleen (P, 5). She testified that she took the money to pay JIK attorney fees.

After the payment of approximately $14,000 in attorney fees, the funds received by JIK, including a promissory note, were transferred by JIK to Sassafras [416]*416(P. 8). There was a purchase money note on the sale given by 14M LLC, which was payable to JIK. Because of the UCC filing by Sassafras, Sassafras, that is, Irene and John, were paid first, and there was no money left over for Kathleen.

As per the judgment note and customer balance detail, JIK owed Sassafras $86,008.71 (D, 11). The customer balance detail is dated October 3,2007; the report begins on January 4, 2002 with a balance owed by JIK to Sassafras in the amount of $33,674.73. The report concludes on April 25, 2007 with a balance owed to Sassafras of $124,229.44. The report references invoices and payments made by JIK to Sassafras; however there is nothing in this document that denotes the nature of the invoice and/or payment; the court found this report to be nothing more than a self-serving report of the defendants as it is uncorroborated by any other document. Furthermore, there is nothing in the JIK or Sassafras tax returns or balance sheets that identifies the $86,008.71 judgment note or debt.4

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Cite This Page — Counsel Stack

Bluebook (online)
16 Pa. D. & C.5th 410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caton-v-jik-enterprises-inc-pactcompllehigh-2010.