Page 1 of 21UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA MIAMI DIVISION Case Number: 14-20136-CIV-MARTINEZ-GOODMAN Sean Raimbeault and Lori-Ann Raimbeault Plaintiffs, vs. Accurate Machine & Tool, LLC, Sunbelt Diversified Enterprises, LLC, Chatham Capital Management III, LLC, 1848 Capital Partners LLC, J ames Tolzien, J ames Wilder a/k/a J immie Wilder and J ohn Sicilian Defendants. PLAINTIFF’S FIRST AMENDED COMPLAINT Sean Raimbeault and Lori-Ann Raimbeault (together, the “Plaintiffs”), by and through their undersigned attorneys, hereby file this Amended Complaint against Accurate Machine & Tool, LLC (“Accurate”), Sunbelt Diversified Enterprises, LLC (“Sunbelt”), Chatham Capital Management III, LLC (“Chatham”), 1848 Capital Partners LLC (“1848 Capital”), J ames Tolzien (“Tolzien”), J ames Wilder a/k/a J immie Wilder (“Wilder”), and J ohn Sicilian (“Sicilian”) together, (collectively, the “Defendants”) and allege and say: THE PARTIES 1. Sean Raimbeault and Lori-Ann Raimbeault are citizens and residents of the State of South Carolina. 2. Upon information and belief, Accurate is a limited liability company organized and existing under the laws of the State of Florida, with its principal place of business in Miami, Florida. Page 2 of 21 3. Upon information and belief, Sunbelt is a limited liability company organized under the laws of the State of Florida, with its principal place of business in Miami, Florida. 4. Sunbelt owns a 90% interest in Accurate with the remaining 10% owned by J immie Wilder, Accurate’s Chief Executive Officer. 5. Upon information and belief, 1848 Capital is a limited liability company organized and existing under the laws of the State of Delaware with its principal place of business located in Miami, Florida. 6. Upon information and belief, 1848 Capital is an equity owner/partner in Sunbelt Diversified Enterprises and Accurate Machine and Tool. 7. Upon Information and belief, 1848 Capital, through its principals and executives, controls Sunbelt. 8. 1848 Capital, Sunbelt, and Accurate all share the same office suite in Miami. 9. Upon information and belief, Chatham is a limited liability company organized under the laws of the State of Georgia. 10. Upon information and belief, Mr. Tolzien is a citizen and resident of the State of Florida. Upon further information and belief, Mr. Tolzien is the Chief Executive Officer of Sunbelt. 11. Upon information and belief, Mr. Wilder is the Chief Executive Officer of Accurate. 12. Upon information and belief, Mr. Sicilian is a partner and board member of Sunbelt and a partner in 1848 Capital. VENUE AND JURISDICTION Page 3 of 21 13. Venue in this Court is proper pursuant to a Consent Order executed by the Plaintiffs and Accurate which transferred this litigation from the United States District Court for the District Court of South Carolina to this Court. 14. This Court has personal jurisdiction over the parties and subject matter jurisdiction over the issues raised in this Amended Complaint. BACKGROUND 15. The instant action arises from a transaction for the sale of assets between the Plaintiffs and Defendants, wherein the Defendants made fraudulent misrepresentations and conspired to defraud Plaintiff and obtain possession of Plaintiffs’ business assets. 16. LAURENTEC, LLC f/k/a Laurentec, LLC (“Laurentec”) is a limited liability company organized and existing under the laws of the State of South Carolina. 17. Plaintiffs were the sole shareholders of LAURENTEC, then known as Laurentec, LLC. Laurentec was a commercial business engaged in production, fabricating and machining and sales of precision machining and parts production on a contract basis. 18. In or around J uly 2012, Peter Patraka, the executive vice president of business development at Sunbelt approached Mr. Raimbeault regarding acquiring his company on behalf of 1848 Capital. On J uly 27, 2012, Mr. Patraka sent Mr. Raimbeault an email containing information regarding 1848 Capital and stated that 1848 Capital was looking for additional acquisitions and was interested in acquiring Laurentec. 19. Mr. Patraka and Mr. Wilder then visited Mr. Raimbeault in South Carolina to discuss purchasing Laurentec’s assets. Page 4 of 21 20. Mr. Patraka and Mr. Wilder introduced Mr. Raimbeault to Mr. Tolzin, Sunbelt’s CEO and a representative of 1848 Capital, and Mr. Sicilian, a member of Sunbelt and the Chairman of the Sunbelt board, and a principal of 1848 Capital. 21. The three principals of 1848 Capital are J ohn Sicilian, J oseph DeGrosa, J r., and David Neithardt. They were copied on most correspondence regarding the transaction at issue. 22. In August 2012 Sunbelt sent a Letter of Intent (“LOI”) to Mr. Raimbeault. Tolzien, Wilder, Sicilian, J ohn DaGrosa, J r., and David Neithardt copied on LOI. 23. Mr. Tolzin stated to Mr. Raimbeault that J ohn Sicilian, J oseph DeGrosa, J r., and David Neithardt had all personally approved the transaction to purchase Laurentec assets. 24. Pursuant to the LOI, Mr. Raimbeault would be provided with a security interest in the physical equipment that was being sold. 25. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian later modified the transaction. Tolzin stated that Chatam and/or 1848 Capital refused to allow Mr. Raimbeault retain a security interest in the equipment, and convinced Raimbeault to accept a guaranty from Sunbelt instead. 26. Further, instead of Sunbelt purchasing the Laurentec assets, the Defendants modified the transaction so that Accurate would be the purchasing entity. 27. The LOI Expired September 15, 2013. Tolzin paid Mr. Raimbeault a $35k “deposit”, purportedly from 1848 Capital, to extend the transaction period. 28. Defendants knew that Accurate had little or no capital and had been in default with Chatam for several years. 29. During the time period between the summer of 2012, until the closing of the Laurentec transaction in November, Defendants 1848, Sunbelt, Accurate and the individual Page 5 of 21 representatives of these companies were negotiating with Chatam to modify Accurate’s debt obligations. 30. Upon information and belief, the Defendants conspired to structure the transaction with Accurate as the buyer, knowing that Accurate had been in default with Chatam for years and had insufficient liquid capital to purchase the Laurentec assets, and Defendants only provided financing to Accurate for the initial down payment. 31. Defendants made representations to Mr. Raimbeault that 1848 Capital, Sunbelt, and Accurate had sufficient capital and was in good standing with its debts. This was done with the intent to defraud Raimbeault to deceive him in to accepting a worthless guarantee instead of a security interest in the assets. 32. All Defendants had access to Accurate’s books and knowledge of Accurate’s financial situation at the time it purportedly modified its debt obligations with to enter into the transaction to purchase Laurentec assets. 33. On or about November 20, 2012, Accurate as Buyer and Laurentec, as Seller, and Sean and Lori-Ann Raimbeault as the only shareholders of Laurentec executed an Asset Purchase Agreement (“APA”) pursuant to which certain Laurentec assets were sold to Accurate. 34. Chatham, 1848 Capital, Sunbelt, and their respective agents, together with Messrs. Tolzien, Wilder, and Sicilian were directly involved with the negotiations regarding the terms of the sale and otherwise controlled the process for Accurate and Sunbelt. 35. Upon information and belief both Chatam and 1848 Capital Partners provided Accurate with funds for the transaction with Plaintiffs. 36. Accurate paid a portion of the total purchase price in cash at closing. The remaining portion of the purchase price was financed by a promissory note in the principal Page 6 of 21 amount of $650,000.00 made by Accurate (the “Accurate Note”) to the Plaintiffs. A copy of the Accurate Note is attached hereto as Exhibit A and incorporated herein by reference. 37. Sunbelt executed an unconditional limited guarantee (“Sunbelt Guarantee”) of the debt pursuant to which it was liable for $300,000.00 in principal of the Accurate Note. A copy of the Sunbelt Guarantee is attached hereto as Exhibit B and incorporated herein by reference. 38. The Sunbelt Guarantee recites that “Guarantor [Sunbelt] has a direct economic interest in Buyer [Accurate], and Guarantor has a real and substantial interest in inducing Seller and the Shareholders to proceed to a closing. . .”. Id. at p. 1. 39. The Plaintiffs also executed a Subordination and Intercreditor Agreement (“Intercreditor Agreement”) with Chatham. A copy of the Intercreditor Agreement is attached hereto as Exhibit C and incorporated herein by reference. 40. Defendants identified Chatham as a senior lender of Accurate who would provide approval for financing to Accurate to acquire the business assets of Laurentec. 41. Chatham is purportedly a lender under the terms of a Senior Credit Agreement dated J uly 15, 2008, pursuant to which it would make loans and other financial accommodations to Accurate. 42. Defendants persuaded Plaintiffs to execute the Intercreditor Agreement. While the full terms of the Intercreditor Agreement are set forth therein, the agreement contained a “Standstill Provision” which provides – Until Discharge of Senior Debt shall have occurred, Subordinated Creditor [Plaintiffs] shall not, without the prior written consent of Agent [Chatham], take any Enforcement Action with respect to the Subordinated Debt. Notwithstanding the foregoing, Subordinated Creditor may file proofs of claim against the Company in any Proceeding involving the Company. Any distributions or other proceeds of any Enforcement Action obtained by Subordinated Creditor in violation of the foregoing prohibition shall in any event be held in trust by it for the benefit of Agent Page 7 of 21 and Senior Lenders and promptly paid or delivered to Agent for the benefit of Senior Lenders in the form received until Discharge of Senior Debt shall have occurred. Intercreditor Agreement at § 2.4. 43. If enforceable, the Standstill Provision operates to preclude the Plaintiffs from enforcing the Subordinating Debt (defined as both the Accurate Note and Sunbelt Guarantee) in the event that Accurate defaulted under its loan with Chatham. 44. During all negotiations concerning the sale of Laurentec’s assets, Defendants’ principals represented to Plaintiffs that Chatham was an unrelated third-party lender entity who provided traditional financing in an arms-length manner. 45. Sunbelt, 1848 Capital, and Accurate and its respective agents, together with Messrs. Tolzien, Wilder, and Sicilian further represented to Plaintiffs that Accurate was performing its obligations under its loan with Chatham. 46. During the all dealings, negotiations, and up to the time of closing, Sunbelt, 1848 Capital, and Accurate and its respective agents, together with Messrs. Tolzien, Wilder, and Sicilian knew, or had reason to know, that Accurate was in default under its loan with Chatham . 47. Sunbelt, 1848 Capital, and Accurate and its respective agents, together with Messrs. Tolzien, Wilder, and Sicilian knew, or had reason to know, that the Intercreditor Agreement would purportedly preclude the enforcement of the Accurate Note and Sunbelt Guarantee by the Plaintiffs under the Standstill Provision, because Accurate would unavoidably default on its modified debt obligations to Chatham. 48. Immediately preceding the closing on the sale of Laurentec assets, Chatham, and Accurate, purportedly entered into a loan modification agreement wherein the slate was “wiped Page 8 of 21 clean”, such that Accurate was not in default, in order to allow Accurate to acquire the Laurentec assets and enter into the various agreements with Plaintiff. 49. Immediately after closing on the transaction with Plaintiffs, Accurate allegedly again defaulted on its obligations purportedly owed to Chatham. 50. Defendants never disclosed to Plaintiffs that Accurate had been in default and was unable to perform its obligations under the terms of its loan agreement with Chatam. 51. Upon information and belief, Defendants knew at the time of the closing on the sale with Plaintiffs that Accurate would be unable to perform its obligations owed to Chatham, even as the obligations were purportedly modified. 52. Accurate’s default on its obligations owed to Chatham and its inability to perform notwithstanding the purported modification were material. The Plaintiffs would not have agreed to finance the purchase of Laurentec’s assets had they known that they had no effective ability to enforce the agreements and that Accurate was not paying its other notes and debts. 53. Furthermore, Plaintiffs would not have entered into a the Intercreditor Agreement which purportedly precludes the enforcement of the Accurate Note and Sunbelt Guarantee under the Standstill Provision in the event that Accurate was in default on its loan with Chatham. 54. After the closing on November 23, 2012, Plaintiffs remained in physical possession of the equipment. 55. Accurate allegedly defaulted on its debt obligations to Chatam on December 3, 2012. 56. Accurate did not provide Plaintiffs with notice of its default. 57. Pursuant to the Intercreditor Agreement, when Accurate defaulted on its payment to Chatam, it was prohibited from making any further payments to Plaintiffs. However, Page 9 of 21 Defendants caused Accurate to tender its first payment pursuant to the Accurate Note on J anuary 1, 2013, in order to mislead Plaintiffs and obtain possession of the equipment. COUNT ONE (Declaratory Judgment) (As to Defendants Accurate and Chatham) Plaintiffs repeat and reallege the allegations contained in paragraphs 1 to 57 as if the same were set forth at length herein. 58. Plaintiffs assert this declaratory judgment claim against Accurate and Chatham to declare the Intercreditor Agreement unenforceable. 59. Through various representations, discussions and failure to disclose material information by the Defendants, the Plaintiffs agreed to enter into the transaction with Accurate and agree to finance a portion of the purchase. 60. Defendants’ actions and statements duped the Plaintiffs into entering the Intercreditor Agreement pursuant to which the Plaintiffs purportedly agreed to forego enforcement of the Accurate Note and Sunbelt Guarantee or otherwise turnover any funds paid as a result of any enforcement proceedings. 61. There is a bona fide, actual, present and practical need for declaratory relief and a substantial, present, and continuing controversy between the parties and a declaration of rights is both necessary and appropriate to establish that the Intercreditor Agreement is not a valid or enforceable contract. 62. All parties with an actual, present, adverse and antagonistic interests in the subject matter of this controversy are properly before the Court. 63. The declaratory relief sought is not merely legal advice by the courts or to answer questions propounded form curiosity. Page 10 of 21 64. If enforceable, the Intercreditor Agreement effectively leaves the Plaintiffs without any effective remedy and the promises contained in the Accurate Note and Sunbelt Guarantee are essentially illusory and of no force or effect. In essence, Accurate can retain the assets obtained from Laurentec under the terms of the APA without making any payment to the Plaintiffs in perpetuity. 65. Plaintiffs would never have agreed to the sale, the financing or the Intercreditor Agreement had Defendants disclosed the multi-year default by Accurate. 66. Plaintiffs’ injury can be redressed by a declaration that the Intercreditor Agreement is unenforceable and allow the parties to enforce the terms of the Accurate Note and Sunbelt Guarantee. If the Plaintiffs are prevented from pursuing their rights under the terms of the Accurate Note and Sunbelt Guarantee, Plaintiffs will be monetarily harmed without the ability to seek redress and Accurate and Sunbelt will be rewarded for their unjust and unconscionable conduct. WHEREFORE, Plaintiffs Sean Raimbeault and Lori-Ann Raimbeault respectfully request this Honorable Court to enter judgment in their favor and against Defendants Accurate and Chatham declare that the Intercreditor Agreement is unenforceable and null and void, and for any other relief this Court deems just and equitable. COUNT TWO (Civil Conspiracy to Commit Fraud) (As to Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian.) Plaintiffs repeat and reallege the allegations contained in paragraphs 1 to 57 as if the same were set forth at length herein. 67. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian entered into an agreement with one another pursuant to which they agreed to, among other things, willfully Page 11 of 21 misrepresent and refuse to disclose Accurate’s default under the Chatham loan and its intention not to perform its obligations owed to Plaintiffs as part of the purchase of Laurentec’s assets. 68. Accurate’s default under the Chatham loan was material. 69. The actions of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, Sicilian and. were done in an effort to defraud Plaintiffs. 70. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, Sicilian and each made false representations and/or assurances of the status of Accurate’s loan with Chatham, its performance thereunder and its intention and ability of Accurate to fulfil its obligations owed to Plaintiffs. Each and every false representations and/or assurances were overt acts in furtherance of the conspiracy between them to harm Plaintiffs. 71. Plaintiffs have incurred damages as a result of the actions of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendants Accurate, Sunbelt Chatham , 1848 Capital , Tolzien, Wilder, and Sicilian for compensatory damages and costs, and upon a proper showing pursuant to the Florida Tort Reform Act, allow Plaintiffs’ claim for punitive damages, and for any other relief this Court deems just and proper. COUNT THREE (Suit on Note) (As to Defendant Accurate) Plaintiffs repeat and reallege the allegations contained in the paragraphs 1 to 57 as if the same were set forth at length herein. 72. Under the terms of the Accurate Note, Accurate, as Borrower, agreed to pay the Raimbeaults the original principal amount of $650,000.00 at the annual rate of nine (9.0%) percent by making 36 monthly payments of principal and interest. Page 12 of 21 73. At the time of closing, the purchased assets were located at Laurentec’s facility in Summerville, South Carolina and remained there until sometime after the first payment became due under the Accurate Note became due. 74. Accurate made the first payment due under the Accurate Note to Plaintiffs in order to gain access to the Purchased Assets, and shortly thereafter moved the assets to its facility located in North Carolina. 75. Thereafter, without notice to Plaintiffs, Accurate failed and refused to tender any further payments due under the Accurate Note. 76. The Accurate Note is a valid and binding contract between Accurate and the Raimbeaults. 77. The Plaintiffs performed all of their obligations due and owing under the Accurate Note. 78. Accurate’s failure to tender payment to the Plaintiffs is a material default of the Accurate Note. 79. Upon Accurate’s default, interest on the unpaid balance accrued at the rate of eighteen (18%) percent. 80. All required notices of default have been provided to Accurate. 81. As of April 30, 2014, there is an unpaid balance of $841,368.19, plus interest accruing at the annual rate of 18% on the Accurate Note. 82. The Accurate Note provides that the Plaintiffs are entitled to the reimbursement of their costs and expenses incurred in response to a default. 83. The Plaintiffs retained the undersigned law firms in response to Accurate’s default under the Accurate Note. Page 13 of 21 84. The Plaintiffs are entitled to entry of judgment against Accurate for the amounts due and owing under Accurate Note, together with all accruing interest and attorneys’ fees and costs. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendant Accurate, for compensatory damages, prejudgment interest, and attorney’s fees and costs, and for any other relief this Court deems just and proper. COUNT FOUR (Suit on Guarantee) (As to Defendant Sunbelt) Plaintiffs repeat and reallege the allegations contained in the paragraphs 1 to 57 as if the same were set forth at length herein. 85. As Plaintiffs required additional security to consummate the transaction, Sunbelt executed the Sunbelt Guaranty pursuant to which it agreed to, among other things, guarantee the full and timely payment of the first $300,000.00 of principal due under the Accurate Note. 86. The guarantee was absolute, unconditional, complete and irrevocable. 87. Sunbelt further waived all defenses to the payment of the indebtedness that may be asserted by Accurate. 88. The Sunbelt Guarantee is a valid and enforceable agreement between the Plaintiffs and Sunbelt. 89. The Plaintiffs performed all of their obligations due and owing under the Sunbelt Guarantee. 90. The loan is in default as a result of Accurate’s failure to pay the amounts due and owing under the Accurate Note, among other things. 91. All notices of default have been given to Sunbelt. Page 14 of 21 92. Despite demand, Sunbelt refuses to fulfill its obligations under the Sunbelt Guaranty and pay the amounts due and owing. 93. Sunbelt’s refusal to pay the Plaintiffs the amounts due and owing as set forth in the Sunbelt Guaranty is a material default of the terms and conditions of the Sunbelt Guaranty. 94. In addition to the payment of $300,000.00 in principal, the Plaintiffs are entitled to the reimbursement of their costs and expenses incurred in response to Sunbelt’s refusal to honor its obligations, including the repayment of their costs and attorneys’ fees. 95. The Plaintiffs are entitled to entry of judgment against Sunbelt in the amount of $300,000.00, plus interest, costs and attorneys’ fees. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendant Sunbelt for compensatory damages, prejudgment interest, and attorney’s fees and costs, and for any other relief this Court deems just and proper. COUNT FIVE (Fraud) (As to Defendants Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian.) Plaintiffs repeat and reallege the allegations contained in the paragraphs 1 to 57 as if the same were set forth at length herein. 96. Through various representations and discussions, Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian committed fraud in the purchase of Laurentec’s assets. 97. The aforementioned actions statements, and material errors and omissions falsely represented the relationship between Accurate, Sunbelt and Chatham and the performance of the loan with Chatham. 98. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian knew of the falsity of the representations made to the Plaintiffs at all times material to this action. Page 15 of 21 99. The misrepresentations, half-truths, and omissions of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian were intended to cause Plaintiff to sell Laurentec and deliver its assets. 100. Plaintiffs did not know of the falsity of the representations and could not have discovered the falsity through the exercise of reasonable care. 101. Plaintiffs relied upon the representations of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian. 102. But for those representations, Plaintiffs would not have sold Laurentec’s assets or financed the transaction. 103. Plaintiffs had a right to rely upon the representations of Accurate, Sunbelt, 1848 Capital Partners, Tolzien, Wilder, and Sicilian. 104. As a direct and proximate result of the misrepresentations, half-truths, and omissions, the Plaintiffs have been damaged in an amount to be determined at trial. 105. Because the actions of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian were willful, malicious and or in reckless disregard for the truth, Plaintiffs are entitled to punitive damages. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendants Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian for compensatory damages and costs, and upon a proper showing pursuant to the Florida Tort Reform Act, allow Plaintiffs’ claim for punitive damages, and for any other relief this Court deems just and proper. COUNT SIX (Constructive Fraud) (As to Defendants Accurate, Sunbelt, 1848 Capital Partners, Tolzien, Wilder and Sicilian Page 16 of 21 Plaintiffs repeat and reallege the allegations contained in the paragraphs 1 to 57 as if the same were set forth at length herein. 106. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian made the aforementioned representations to the Plaintiffs. 107. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian knew, or should have known, that their representations were false and material to the purchase of Laurentec’s assets and the financing obtained from Plaintiffs. 108. Upon information and belief, Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian knew that Accurate and Sunbelt were unwilling and incapable of honoring their contractual obligations. 109. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian knew the representations were false, or recklessly disregarded the truth or falsity of the representation. 110. Relying upon the false representations of Accurate, Sunbelt, 1848, Tolzien, Wilder and Sicilian, Plaintiffs sold the assets of Laurentec and financed the transaction. 111. Plaintiffs were unaware of the falsity of the representations. 112. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian intended to deceive the Plaintiffs. 113. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian intended that Plaintiffs act upon its false representations. 114. Plaintiffs justifiably relied upon the representations of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian 115. Plaintiffs had a right to rely upon the representations of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian. Page 17 of 21 116. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian profited from Plaintiffs’ reliance upon the false representations. 117. Because of the fraud in the inducement to enter into the agreement to sell Laurentec’s assets and finance the transaction, Plaintiffs have proximately and consequently suffered damages as outlined and as shall be proven at trial. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendants Accurate, Sunbelt, 1848 Capital , Tolzien, Wilder and Sicilian for compensatory damages and costs, and upon a proper showing pursuant to the Florida Tort Reform Act, allow Plaintiffs’ claim for punitive damages, and for any other relief this Court deems just and proper. COUNT SEVEN (Unjust Enrichment) (As to Defendants Accurate and Sunbelt) Plaintiffs repeat and reallege the allegations contained in the paragraphs 1 to 57 as if the same were set forth at length herein. 118. In reliance upon the promises and representations of Defendants, Plaintiffs sold Laurentec’s assets and financed the transaction. 119. Accurate and Sunbelt enjoyed and realized the benefits of Laurentec’s assets by retaining and utilizing them in the operation of their business. 120. Accurate and Sunbelt refuse to pay Plaintiffs the amounts due and owing in connection with their purchase and have actively engaged in a scheme to defraud Plaintiffs. 121. Accurate and Sunbelt will obtain an unjust enrichment to the detriment of Plaintiff as a result of failure to pay for their acquisition of LAURENTEC’s assets. Page 18 of 21 WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendants Accurate and Sunbelt for compensatory damages, prejudgment interest, and attorney’s fees and costs, and for any other relief this Court deems just and proper. COUNT EIGHT (Unfair and Deceptive Trade Practices) (As to Defendants Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian.) Plaintiffs repeat and reallege the allegations contained in the paragraphs 1 to 57 as if the same were set forth at length herein. 122. The conduct of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian constitutes unfair and deceptive trade practices and is a violation of Fla. Stat. § 501.201, et. Seq. (“FUDTPA”) 123. The Plaintiffs are consumers within the meaning of FUDTPA. 124. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian engaged in unfair practices when they misrepresented Accurate’s default status with Chatam and caused Plaintiffs to transfer Laurentec assets in exchange for a worthless and purportedly unenforceable note and guaranty. 125. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian engaged in unfair practices when the conspired to induce Plaintiffs to accept an “absolute, unconditional, complete, continuing, and irrevocable” Guarantee, which they knew would not have any effect due to the Chatam intercreditor agreement, instead of the previously agreed upon security interest in the equipment. 126. The actions of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian were willful and intentional. Page 19 of 21 127. The conduct of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian is capable of repetition and, upon information and belief has been repeated. 128. The conduct of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian affects the public interest. 129. Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian knew or should have known that its actions constituted unfair and deceptive trade practices. 130. The conduct of Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder and Sicilian qualifies as an unfair practice within the meaning of FUDTPA, because said acts are unethical, unscrupulous, and substantially injurious to Plaintiffs. 131. As a direct, foreseeable, and proximate result of the unfair and deceptive trade practices, the Plaintiff has suffered an ascertainable loss of money and property. WHEREFORE, Plaintiffs respectfully request this Honorable Court to enter judgment in their favor and against Defendants Accurate, Sunbelt, 1848 Capital, Tolzien, Wilder, and Sicilian for compensatory damages and costs, and upon a proper showing pursuant to the Florida Tort Reform Act, allow Plaintiffs’ claim for punitive damages, and for any other relief this Court deems just and proper. COUNT NINE (Breach of Contract – Consulting Agreement) (As to Defendant Accurate) Plaintiffs repeat and reallege the allegations contained in the paragraphs 1 to 57 as if the same were set forth at length herein. 132. Accurate and Sean Raimbeault entered into a Consulting Agreement. 133. Under the terms of the Consulting Agreement, Mr. Raimbeault provided services to Accurate in order to assist Accurate in the development of its businesses. Page 20 of 21 134. The Consulting Agreement provided that Mr. Raimbeault would earn a commission from both existing and new customers that he prevented. 135. The Consulting Agreement required Accurate to promptly respond to a new customer’s order and whether such order was acceptable. In the event that the order was not accepted, Accurate is required to specify the reasons for rejecting the new customer’s order. 136. Mr. Raimbeault has presented several proposals to Accurate. 137. Accurate failed to respond to the proposals as required or pay the commissions to Mr. Raimbeault. 138. Mr. Raimbeault performed all of his obligations under the Consulting Agreement and continues to perform the same. 139. Accurate is in material breach of the Consulting Agreement by failing to pay commissions and responding to customer proposals. 140. As a result of the material breaches of the Consulting Agreement by Accurate, Mr. Raimbeault has been damaged by an amount to be determined at trial. WHEREFORE, Plaintiff Sean Raimbeault respectfully request this Honorable Court to enter judgment in their favor and against Defendant Accurate, for compensatory damages, prejudgment interest, and attorney’s fees and costs, and for any other relief this Court deems just and proper. DATED on this _____ day of May, 2014. Respectfully Submitted, POLLACK, POLLACK & KOOGAN, LLC Co-Counsel to Plaintiffs Courthouse Tower 44 West Flagler Street Suite 2050 Page 21 of 21 Miami, FL 33130 Primary:
[email protected] Primary:
[email protected] Secondary:
[email protected] Secondary:
[email protected] Tel: (305) 373-9676 Fax: (305) 373-9679 By: Bretton I. Pollack, Esq. Fla. Bar No. 48793 Gary W. Pollack, Esq. Fla. Bar No. 313114 LANGENDORFER LAW FIRM, LLC Co-Counsel to Plaintiffs P.O. Box 68 Mount Pleasant, SC 29465 (843) 501-0469 Primary:
[email protected] By: Brendan P. Langendorfer Admitted Pro Hac Vice