1. law, govt and politics

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STATE OF INDIANA
COUNTYOFELKHART
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INDIANA DEPARTMENT OF
REVENUE,
Plaintiff,
v.
PUMPERNICKEL FOODS, INC. and
DAVID ULLERY d/b/a
PUMPERNICKEL'S CATERING,
PUMPERNICKLES CATERING, AND
PUMPERNICKEL'S PRETZEL BAKERY
AND SANDWICH SHOP,
Defendants.
IN THE ELKHART CIRCUIT COURT
CAUSE NO.: 20COl-1505-MI-00171
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FILED
IN OPEN COURT
MAY 26 2015
CLERK ELKHART CIRCUIT COURT
PRELIMINARY INJUNCTION
This matter comes before the Court on the Plaintiff's Verified Motion for Temporary
Restraining Order, as modified in open Court at the hearing on May 26, 2015, and the Court,
having examined the Motion, as modified, and attached exhibits, and being duly advised, now
finds that:
1.
At any time after a judgment arising from a tax warrant has been recorded, the
Indiana Department of Revenue (the "Department") may obtain a court order restraining the
person(s) owing the tax from conducting business in Indiana. Ind. Code § 6-8.1-8-5.
2.
The Department is attempting to collect upon 82 lmpaid tax warrants filed and
recorded with the Clerk of this Court against Pumpernickel Foods, Inc. ("Pumpernickel").
3.
Defendant Pumpernickel failed to remit Indiana retail sales taxes to the
Department as required by law. Ind. Code § 6-2.5-6-1.
4.
Defendant Pumpennckel failed to remit Indiana withholding taxes to the
Department as required by law. Ind. Code § 6-3-4-8(a).
5.
Defendant Pumpernickel had its Registered Retail Merchant Certificate (RRMC)
revoked twice, first on January 30, 2009 and again on January 30, 2013, and is thus not legally
allowed to conduct business activities within the State of Indiana. Ind. Code § 6-2.5-8-1(a), (g).
6.
The responsible officer of Defendant Pumpernickel, David Ullery, is personally
liable for the taxes due. See Ind. Code §§ 6-2.5-9-3; 6-3-4-8(g).
7.
Defendant David Ullery currently conducts business through Pumpernickel's
Catering, Pumpernickles Catering, and/or Pumpernickel's Pretzel Bakery and Sandwich Shop.
8.
The Department has not been able to collect the retail sales taxes or withholding
taxes from the Defendants, and the Defendants have not remitted the taxes to the Department as
required by law. Thus, by reason of the Defendants' wrongful actions, the Department has and
will continue to suffer an immediate and irreparable injury inasmuch as it has not been able to
and will not be able to collect the retail sales taxes or withholding taxes owed by the Defendants.
9.
Pursuant to Ind. Code § 6-8.1-8-5 and Ind. Trial Rule 65, it is necessary that the
Defendants be restrained from conducting business in Indiana.
10.
The Plaintiff has shown through its Motion, as modified in open court, that the
Plaintiffs action has a likelihood of success on the merits, that there will be irreparable harm
without the injunction, that there is a favorable balance of the equities, and the injunction is in
the public interest.
11.
A preliminary injunction is necessary to protect the Department's interests until
the Department can collect on the judgments recorded in this matter.
12.
As part of the Preliminary Injunction, the Defendants may not assume new clients
and/or schedule further services. Specifically, Pumpernickel's Catering and/or Pmnpernickles
Catering may not assume new clients and/or schedule further services.
13.
The Defendants, including David Ullery d/b/a Pumpernickel's Catering and/or
Pumpernickles Catering, are ordered to wind-up all existing business services to current clients
within seven (7) days.
14.
The Defendants must provide Plaintiff's counsel with an exhaustive list of their
current business by the end of May 27, 2015. The list shall include, but not be limited to, the
names of the individuals Pumpernickel's Catering and/or Pumpernickles Catering are to provide
services for and the dates of the services currently scheduled. The list shall be sent to Plaintiff's
cOlmsel, either by fax at (317) 233-6581 or by email [email protected].
15.
In the event Defendants fail to wind up their existing business services, forward
an exhaustive list of current business to Plaintiff, or any other violation of this Preliminary
Injunction, said Defendants may be held in contempt of this Court.
IT IS THEREFORE ORDERED that the Defendants and the Defendants' agents,
successors, subsidiaries, proprietorships, and assigns and all persons natural or corporate acting
in concert or in participation with the Defendants, including Pumpernickel's Catering,
Pumpernickles Catering, and Pumpernickel's Pretzel Bakery and Sandwich Shop, are restrained
in any manner or by any means from doing business in Indiana and from dissipating,
distributing, transferring, encumbering, assigning, paying over, or otherwise disposing of any
monies or assets owned by or in the possession of the Defendants as a result of the Defendants'
business activities in Indiana.
IT IS FURTHER ORDERED that the Defendants must provide an exhaustive list of their
current business, including current business for Pumpernickel's Catering and/or Pumpernickles
Catering, with names of clients who contracted for services and the dates of scheduled services
by the end of May 27,2015 to Plaintiff's counsel. The Defendants, including David Ullery d/b/a
Pumpernickel's Catering and/or Pumpernickles Catering, also must wind-up their existing
business services within seven (7) days, may not assume new clients or customers, or schedule
further services.
SO ORDERED this
~b
day of May, 2015.
Distribution:
Pumpernickel Foods, Inc.
c/o David Ullery
500 South Main Street
Elkhart, Indiana 46516-3282
David Ullery d/b/a Pumpernickel's
Catering and Pumpernickel's Pretzel
Bakery and Sandwich Shop
10762 Toledo Avenue
Osceola, Indiana 46561-9761
John Edward Frank
Office of the Indiana Attorney General
Indiana Government Center South, 5th Floor
302 West Washington Street
Indianapolis, IN 46204-2770
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