Division of Consumer Affairs
Previously this Court entered default judgment under Rule 55, Tenn. Rules Civ. Proc. against Defendants, Alex T. Owen, Carl Ketchum, and John Wheatley in this action filed by the State of Tennessee under the Tennessee Consumer Protection Act. The corporate Defendants, American Cemeteries, Inc. and Cemetery Services, Inc., have both filed bankruptcy and all proceedings as to those Defendants are stayed under the automatic stay provisions of the United States Bankruptcy Code.
This matter came on for further hearing on April 4, 1997, upon the entire record and upon the request of Plaintiff, State of Tennessee, to establish the appropriate relief this Court should award against Defendants Alex T. Owen, Carl Ketchum, and John Wheatley, in their individual capacities. Realizing that this is a substantial judgment against individuals and, moreover, that the State of Tennessee has purposely limited the relief it is seeking to take into account that the relief sought is against individuals, the Court has considered all relevant factors in making the awards reflected in this Judgment. For the record, it should be noted that the Defendant Alex T. Owen did not appear at the hearing and that Defendants Carl Ketchum and John Wheatley appeared pro se and offered no defense to the Plaintiff's claims, although given an opportunity to do so.
For good cause shown, as evidenced by the entire record, it is ORDERED, ADJUDGED AND DECREED that the following relief is GRANTED in favor of the State of Tennessee and against Defendants Alex T. Owen, Carl Ketchum, and John Wheatley, (hereafter referred to as individual Defendants) in their individual capacities:
1. The Court enjoins the individual Defendants from committing further violations of the Tennessee Consumer Protection Act, and directs that the Agreed Temporary Injunction Order, entered in this action on February 26, 1996, remain in full effect and become a permanent injunction as to the individual Defendants.
2. The Court separately assesses civil penalties in the amount of Eight Thousand, Six Hundred Dollars and No Cents ($8,600.00) against each individual Defendant.
3. The Court orders the individual Defendants to make restitution to the State of Tennessee in the total amount of Twenty-Four Thousand, Eight Hundred Twenty-Seven Dollars and Twenty-Seven Cents ($24,827.27). If the State of Tennessee receives funds under this Judgment, the State of Tennessee will distribute restitution under this Judgment as reflected in Appendix A to this Judgment or in a pro rata fashion (in light of Appendix A) if the State of Tennessee is not able to collect and distribute the full restitution amount. Nothing in this order should be construed to prevent any consumer, including those listed in Appendix A to this Judgment, from seeking restitution from the corporate Defendants in bankruptcy court or in this Court if the bankruptcy stay is lifted.
4. The Court awards attorneys' fees and costs in the amount of Ten Thousand Dollars and No Cents ($10,000.00) in favor of the State of Tennessee and against the individual Defendants.
5. All costs of this action are taxed against the individual Defendants.
Under Rule 54.02, Tenn. Rules of Civ. Proc., this Court determines there is no just reason for delay and directs that this Judgment be considered a final judgment in favor of the State of Tennessee and against Defendants Alex T. Owen, Carl Ketchum, and John Wheatley, in their individual capacities. All other matters are RESERVED.
IT IS SO ORDERED, ADJUDGED, AND DECREED this
day of April, 1997.
JUDGE
Approved for Entry:
I hereby certify that a true and exact copy of the foregoing Order has been
forwarded by first-class mail, postage prepaid, to Steven L. Leftkovitz, Esq.,
530 Church Street, Suite 202, Nashville, Tennessee 37219, (Bankruptcy counsel
for American Cemeteries, Inc., and Cemetery Services, Inc.), Mr. Alex T. Owen,
1881 Sommerset Road, Ocean Isle, NC 28469, Mr. Carl Ketchum, 1955 Union Place
Apt. I-154, Columbia, Tennessee 38401 and Mr. John Wheatley, 2391 Nashville
Highway, Columbia, Tennessee 38401 on this the day of April, 1997.