William Temkin v. Dennis Belli
Published: Aug. 5, 2000 | Result Date: Apr. 11, 2000 | Filing Date: Jan. 1, 1900 |Case number: BC206642 Verdict – $10,448
Judge
Court
L.A. Superior Central
Attorneys
Plaintiff
Jamie R. Schloss
(Law Office of Jamie R. Schloss )
Defendant
Facts
Sheldon Temkin and David Barry formed a partnership doing business as Clothes 4 Less. The partnership sold
womenÆs and menÆs apparel and trinkets. The partnership obtained 70 percent of its merchandise from K Mart in New Jersey. All of that merchandise had previously been returned by K Mart customers. The partnership arranged for shipment of the K Mart merchandise through defendant, a shipping agent. One month, the partnership received two shipments from K Mart but had room to store only one of those shipments at its retail store. David Barry, acting for the partnership, asked defendant to arrange storage for the extra shipment. The defendant arranged to store the 1,134 cartons of goods in the shipment under his name at the Western Sunset international warehouse, where he had an existing business relationship with the owner. At the time he
arranged for the K Mart shipment in question and for the storage of that shipment at the WSI warehouse, the
defendant was allegedly aware that Clothes 4 Less was a partnership. For the storage of these goods, WSI invoiced the defendant monthly and the defendant, in turn, invoiced Clothes 4 Less, which allowed the invoices to accumulate without payment. The plaintiff and the defendant then had a falling out. Each accused the other of stealing from the partnership. Through his attorney-brother, the plaintiff told the defendant that the partners in Clothes 4 Less were having a falling out and that Sheldon Temkin wanted to ensure that the cartons stored at WSI were not released to the Barrys until both partners had resolved their dispute. Before he took steps to release the goods to David Barry and his wife Sandy Barry, defendant was aware that Sheldon Temkin and David Barry were disputing the ownership of the goods in storage. The defendant went to WSI on April 24, 1998, took cash from the Barrys to pay his charges for arranging the transportation and storage of the goods and told the representative of WSI that the defendant was out of the deal and that in the future, WSI was to deal with the Barrys regarding the goods. The plaintiff filed suit for conversion, fraud and breach of fiduciary duty by the defendant based on the release of partnership goods to one partner without the consent of the other partner.
Settlement Discussions
The plaintiff made a C.C.P. Section 998 settlement demand for $75,000 before trial. The plaintiff settled with defendant Western Sunset International Warehouse for $64,955 before trial (per C.C.P. 998 demand for $65,000).
Damages
The plaintiff claimed $120,000 in damages.
Other Information
In its statement of decision, the court found that the effect of the defendantÆs actions with respect to the Clothes 4 Less goods in storage at the WSI warehouse on April 24, 1998 was to deliver control of those goods to the Barrys. The actions under the circumstances, constituted conversion of the goods. Because defendant had undertaken to act as an agent for the Clothes 4 Less partnership in connection with the transportation and storage of the goods, he owed a fiduciary duty to Sheldon Temkin, a person knew to be in partnership with David Barry. In October 1988, Sheldon Temkin and the Barrys settled their claims against each other arising out of the Clothes 4 Less partnership and dissolved the partnership. In addition, the Barrys agreed that all tangible and intangible assets of the partnership, including claims against third parties, were the sole property of Sheldon Temkin. Before the trial of this case, Sheldon Temkin assigned his rights in Clothes 4 Less to his brother, plaintiff William Temkin. On April 30, 2000, the defendant filed for bankruptcy under Chapter 7 of the United States Code. This occurred before the motion for attorney fees and the punitive damage portion of the cause could be heard.
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