Preview
Filing # 50280213 E-Filed 12/19/2016 05:04:53 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT, IN
AND FOR ORANGE COUNTY,
FLORIDA
CASE NO.: 2016-CA-004103-0
COMMERCIAL BUSINESS
FINANCE CORP. DBA
COMMERCIAL BUSINESS
FINANCE, a Florida Corporation,
Plaintiff,
vs.
ATLANTIC CONTROLS
CORPORATION a Florida
Corporation; ANTHONY W.
BROWN, Individually, jointly, and
severally; ALLEN ELECTRIC
SUPPLY CO., a Michigan
Corporation; and RICHARD S. GALL,
an Individual.
Defendants.
/
MOTION FOR LEAVE TO FILE
PLEADING WITH CROSS, COUNTER AND THIRD PARTY CLAIMS
COME NOW, Defendants, ATLANTIC CONTROLS CORPORATION a
Florida Corporation, and ANTHONY W. BROWN, by and through undersigned
counsel, pursuant to Rule 1.190 of the Florida Rules of Civil Procedure, move this
Court to grant leave to file counterclaims and crossclaims, and states as follows:
1. Plaintiff filed a Complaint on May 12, 2016.
2. Defendants Atlantic Controls Corporation (hereinafter “ACC”), and
Anthony W. Brown (hereinafter “Brown”) filed their answer with
affirmative defenses on June 14, 2016.
3. On November 18, 2016, the court held a case management conference and,
pursuant to the Case Management Order rendered December 2, 2016, set the
deadline for Defendants to file their motion for leave to file crossclaim or
counterclaim to be December 19, 2016.
4. Defendants submit this motion on time and in accordance with said Case
Management Order. A copy of the pleading is attached hereto as Exhibit A.
5. Fla. R. Civ. Pro. 1.190(a) states that leave of court shall be given freely
when justice so requires.
6. It has always been the policy of Florida courts to freely allow amendments
to pleadings so that cases can be tried on their merits and justice may be
achieved. In exercising its discretion to allow or disallow an amendment, the
Court should resolve all doubts in favor of allowing the amendment. Bill
Williams Air Conditioning & Heating, inc. v. Haymarket Co-op Bank, 592
So.2d 302 (Fla. 1st DCA 1991).
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7. Plaintiff will not be unduly prejudiced by allowing Defendant leave to
amend their claims. Moreover, some of the factual basis for said claims
arose after the filing of Plaintiff’s complaint.
8. This motion is being filed in good faith.
WHEREFORE, Defendants respectfully request that this Court enter an Order
granting leave of Court to file the attached pleading, have it relate back in time as
appropriate under the law and grant any other relief which this Court deems just
and proper under the circumstances.
CERTIFICATE OF GOOD FAITH CONFERENCE
On December 18, 2016, Plaintiff’s counsel, Undine C. George, Esq., emailed
Plaintiff’s counsel and counsel for Defendants Allen Electric Supply Co. and
Richard S. Gall, in a good faith effort to resolve the matters presented by the
Motion. On December 19, 2016, Jocelyne A. Macelloni, Esq., attorney for the
Plaintiff, emailed that she was currently unable to consent. On December 19, 2016
Defendant’s counsel initiated a telephone call to John Y. Benford, Esq., attorney
for Defendants Allen Electric Supply Co. and Richard S. Gall, who communicated
through his assistant that they are of the position that the clients were dismissed
and that he no longer needs to participate in the matter.
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CERTIFICATE OF SERVICE
I hereby certify that a copy hereof has been furnished by email through the
Florida Courts E-filing Portal service system on December 19, 2016, to Jocelyne
A. Macelloni, Esq., attorney for the Plaintiff, at jocelyne.macelloni@uulaw.net and
to John Y. Benford, Esq., attorney for Defendants Allen Electric Supply Co. and
Richard S. Gall, at JYB@JYBLaw.com and alyssa@JYBLaw.com.
ANASTASIA LAW, P.L.
Attorneys for Defendants Atlantic Controls
and Anthony W. Brown
/s/ Undine C. George
Undine C. George
Florida Bar No.: 16872
Pamela M.M. Holcombe
Florida Bar No.: 135010
107 A 11th Street
Saint Augustine, Florida 32080
(904) 236-6243–Telephone
Service Email: undine@anastasialaw.net
Service Email: pamela@anastasialaw.net
Secondary Email: service@anastasialaw.net
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EXHIBIT A
IN THE CIRCUIT COURT OF
THE NINTH JUDICIAL
CIRCUIT, IN AND FOR
ORANGE COUNTY,
COMMERCIAL BUSINESS FINANCE FLORIDA
CORP. DBA COMMERCIAL BUSINESS
FINANCE, a Florida Corporation, CASE NO.: 2016-CA-004103-0
Plaintiff,
vs.
ATLANTIC CONTROLS CORPORATION
a Florida Corporation; ANTHONY W.
BROWN, Individually, jointly, and
severally; ALLEN ELECTRIC SUPPLY
CO., a Michigan Corporation; and
RICHARD S. GALL, an Individual.
Defendants.
…………………………………………………….....
ATLANTIC CONTROLS CORPORATION
a Florida Corporation; and ANTHONY W.
BROWN, an Individual,
Plaintiffs,
-vs-
COMMERCIAL BUSINESS FINANCE
CORP. DBA COMMERCIAL BUSINESS
FINANCE, a Florida Corporation,
Counterclaim Defendant;
ALLEN ELECTRIC SUPPLY CO., a
Michigan Corporation, and RICHARD S.
GALL, an Individual,
Crossclaim Defendants; and
ROBERT CHRISTIAN, an Individual,
Third Party Defendant.
/
ATLANTIC’S COUNTERCLAIM AGAINST CBF;
CROSSCLAIM AGAINST ALLEN ELECTRIC AND GALL; AND
THIRD PARTY CLAIM AGAINST ROBERT CHRISTIAN
Defendants/Cross-Plaintiffs, Atlantic Controls Corporation, a Florida
corporation (“Atlantic”), and Anthony W. Brown (“Brown”), an individual, by and
through undersigned counsel, hereby sue Plaintiff/Counterclaim Defendant,
Commercial Business Finance, Corp. d/b/a Commercial Business Finance, a
Florida Corporation (“CBF”), Defendants/Crossclaim Defendants, Allen Electric
Supply Co., a Michigan Corporation (“Allen”), and Richard S. Gall, an individual
(“Gall”), and Third Party Defendant, Robert Christian, an individual (“Christian”),
(collectively “Defendants”), and in support thereof, state as follows:
Party Allegations
1. CBF is a Florida corporation with its principal place of business located
in Orange County, Florida.
2. Atlantic is a Florida corporation with its principal place of business
located in St. Johns County, Florida.
3. Brown is an individual who resides in St. Johns County, Florida, is over
the age of 18 and is otherwise sui juris.
4. Allen is a Michigan corporation with its principal place of business
located in Wayne County, Michigan.
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5. Gall is an individual who, upon information and belief, resides in
Michigan, is over the age of 18, is the Operations Manager for Allen
Electric and is otherwise sui juris.
6. Christian is an individual who, upon information and belief, resides in
Michigan, is over the age of 18, is the owner of Allen Electric and is
otherwise sui juris.
Allegations as to Jurisdiction and Venue
7. This is an action for money damages, which exceeds $75,000, exclusive
of costs, interest, and attorneys’ fees thereby vesting Complex Business
Division of the Circuit Court with jurisdiction over this cause pursuant to
Chapter 26 of the Florida Statutes and the Local Rules.
8. Defendants are subject to the personal jurisdiction and venue of this
Court because:
a. CBF is a Florida corporation with its principal place of business
located in Orange County, Florida.
b. Allen and Gall were already served in the underlying action to this
claim and pursuant to Fla. R. Civ. P. 1.070(h) and Florida Statute
§48.193(1)(a)(2), service of process may be made upon Allen
Electric and Gall due to Allen Electric and Gall having each
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committed a tortious act within the State of Florida (as described in
more detail below).
c. Christian traveled to Florida pursuant to the negotiations with
Atlantic and Brown, and pursuant to Fla. R. Civ. P. 1.070(h) and
Florida Statute §48.193(1)(a)(2), service of process may be made
upon Christian due to his having each committed a tortious act
within the State of Florida (as described in more detail below).
d. The cause of action accrued in Orange County, Florida.
Allegations Common to Each Count
9. On or about February 1, 2016, Atlantic and Brown entered into an oral
agreement with Allen, Christian and/or Gall for the purchase and sale of
Atlantic (hereinafter the “Agreement”).
10.All, or most, negotiations had been conducted directly by Christian, who
held himself out to be the owner of Allen and who traveled to Florida to
facilitate the negotiations with Atlantic and Brown.
11.Atlantic’s and Brown’s business relationship with Allen and Christian,
and negotiations thereof were made in good faith by Atlantic and Brown.
12.Allen and Christian expressly promised that as part of the purchase of
Atlantic, that Allen and/or Christian would satisfy all obligations owed
by Atlantic, including any obligations owed to Plaintiff, CBF, and to
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perform all of Brown's and Atlantic's obligations pursuant to Atlantic’s
agreement with CBF.
13.Allen and Christian further promised that it would:
a. pay Atlantic’s vendors and suppliers to enable Atlantic to continue
as a going business;
b. enter into long term employment or consulting agreements with
Atlantic’s key personnel including Nigel Brown and Anthony
Brown, so they could continue the business of Atlantic.
14.Prior to Atlantic’s and Brown’s negotiations with Allen and Christian,
Atlantic had properly directed all its clients to make payment to CBF
pursuant to their factoring agreement.
15. On information and belief, Allen, Christian and/or Gall knew that if it
sent out a notice to the clients of Atlantic to make their payments to
Allen, in violation of the factoring agreement without CBF being
satisfied, it would cripple Atlantic financially and expose it to further
liability.
16.Yet, under the guise of formalizing a sale of Atlantic and other assets of
Brown’s Allen and Gall sent out a notice to Atlantic’s clients, a copy of
which is attached as Exhibit “1”, directing such clients to make payment
to Allen and Gall.
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17.At the insistence of Allen and Christian, and with reasonable reliance
upon representations from Allen and Christian, Brown and Atlantic
substantially performed pursuant to the oral contract.
18.On information and belief, Gall and Allen sent correspondence to clients
of Atlantic on or around February 19, 2016, directing that those clients
make their payments to Allen. See attached Exhibit “1”.
19.On information and belief, CBF also sent correspondence to clients of
Atlantic on or around March 22, 2016, directing that those clients make
their payments to CBF. See attached Exhibit “2”.
20.The conflicting letters confused Atlantic’s clients and damaged Atlantic’s
business reputation.
21.Atlantic and/or Brown attempted to reassure CBF that they would be
fully satisfied but by early April of 2016, it became apparent to Atlantic
and Brown that CBF, Allen and/or Gall were communicating directly and
to the detriment of Atlantic.
22.Although in February and March of 2016 Allen and/or Christian did send
occasional payment to Atlantic, Allen and/or Christian thereafter refused
to pay, among other things, the employees, suppliers and vendors of
Atlantic.
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23. Allen and/or Christian breached the oral agreement by, among other
things, failing to make full payment as agreed.
24.Upon information and belief, Allen and/or Gall did in fact tender funds to
CBF in relation to the oral agreement they had negotiated with Atlantic
and Brown.
25.Brown and Atlantic remain unsure of how much money was exchanged
between Allen, Gall and CBF. Brown and Atlantic have demanded
records and/or an accounting from CBF and Allen and Gall and, to date,
neither have provided such information.
26.Upon information and belief, CBF interfered with Atlantic and Brown's
negotiations and business relationship with Allen, Christian and/or Gall
as well as with Atlantic’s business relationship with its customers.
27.Upon information and belief, Allen, Christian and/or Gall interfered with
Atlantic and Brown's business relationship with CBF as well as Atlantic’s
relationship with its customers.
28.The conflicting letters and lack of accounting of the funds exchanged has
been financially devastating to Atlantic.
29.Brown is the sole owner of Atlantic and his livelihood depended upon
Atlantic’s profitability.
30.Brown and Atlantic have been harmed by the actions of Allen.
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31.Brown and Atlantic have been harmed by the actions of Christian.
32.Brown and Atlantic have been harmed by the actions of Gall.
33.Brown and Atlantic have been harmed by the actions of CBF.
34.All conditions precedent to the filing of this action have either been
fulfilled or waived.
35.Atlantic and Brown have incurred attorneys’ fees and costs for the
bringing of this action.
COUNT I - TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS
Brown and Atlantic sue CBF for tortious interference with business
relationships, and in support thereof alleges:
36. Brown and Atlantic restate and incorporate the allegations set forth in
paragraphs 1 through 35, above as if fully set forth herein.
37. As more fully set forth above, Atlantic and Brown had a business
relationship with Allen and/or Christian whereby CBF would be satisfied
of its agreements with Brown and Atlantic, Atlantic would stay in
business, Brown and another key personnel would remain employed for
years.
38.Atlantic’s business relationship with Allen and Christian and negotiations
thereof were made in good faith by Atlantic and Brown.
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39.Atlantic attempted to notify CBF of the good faith nature of the sale of
Atlantic to Allen and warn that interfering with the planned transaction
could ruin the business of Atlantic.
40.Notwithstanding of Atlantic and Brown’s reassurances and warnings to
CBF, CBF ignored Atlantic and Brown’s instructions.
41.Not only did CBF insert itself into the relationship with Atlantic/Brown
and Allen/Christian/Gall, CBF directly communicated with the customers
of Atlantic to the detriment of Atlantic’s business relationships.
42.CBF tortiously interfered with Atlantic and Brown’s relationship with
Allen, Christian and Gall.
43.Further, CBF tortuously interfered with Atlantic and Brown’s
relationship with their customers.
44.Atlantic and Brown were damaged by CBF’s tortious conduct.
WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court enter a judgment in their favor and against Defendant(s), determine and
award Atlantic and Brown their damages, including punitive damages and an
award of reasonable attorney’s fees and costs, pursuant to Florida law, for the
prosecution of these claims.
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COUNT II – SET-OFF
Brown and Atlantic sue CBF for an action of set-off, and in support thereof
alleges:
45. Brown and Atlantic restate and incorporate the allegations set forth in
paragraphs 1 through 35 and 37 through 41 above as if fully set forth
herein.
46.On information and belief, Allen, Christian and/or Gall tendered funds to
CBF which are a direct result of the business relationship between
Atlantic/Brown with Allen/Christian/Gall.
47.Any funds so tendered to CBF are for the same liability as CBF has sued
for in the instant action, and are indistinct therefrom.
48. Allowing CBF to retain those funds without granting a set-off to Atlantic
and Brown would unjustly result in a windfall to CBF.
49.Atlantic and Brown are entitled to a set-off of any and all funds tendered
to CBF by Allen, Christian and/or Gall which arise from the business
relationship of Atlantic/Brown, with Allen/Christian/Gall.
WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court enter a judgment in their favor and against Defendant(s), determine and
award Atlantic and Brown their damages and the amount of set-off they are
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entitled to, as well as an award of reasonable attorney’s fees and costs, pursuant to
Florida law, for the prosecution of these claims.
COUNT III – TORTIOUS INTERFERENCE WITH BUSINESS
RELATIONSHIP AGAINST ALLEN ELECTRIC, CHRISTIAN AND GALL
Brown and Atlantic sue Allen, Christian and Gall for tortious interference
with business relationships, and in support thereof alleges:
50.Brown and Atlantic restate and incorporate the allegations set forth in
paragraphs 1 through 35, above as if fully set forth herein.
51.As more fully set forth herein, Atlantic and Brown had a business
relationship with its key personnel including but not limited to, Nigel
Brown, its vendors, its clients, and with CBF.
52. On information and belief, Allen, Christian and/or Gall knew that if it
sent out a notice to the clients of Atlantic to make their payments to
Allen, without CBF being satisfied, it would cripple Atlantic financially
and expose it to further liability.
53.On information and belief, Allen, Christian and/or Gall knew that if it
recruited Atlantic’s key personnel with long term employment and non-
compete provisions, it would seize up the workings of the small
company.
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54.On information and belief Allen, Christian and/or Gall knew that if it
failed to pay Atlantic’s vendors and suppliers, it could not produce for its
clients.
55. Yet, under the guise of formalizing a sale of Atlantic and other assets of
Brown’s, Allen, Christian and/or Gall sent out a notice to Atlantic’s
clients, (Exhibit 1) directing such clients to make payment to Allen
and/or Gall.
56.Upon information and belief, Allen, Christian and/or Gall sent such
letters without satisfying CBF pursuant to the agreement to sell Atlantic
to Allen and/or Christian.
57.Atlantic and Brown have been damaged by the conduct of Allen,
Christian and Gall.
WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court enter a judgment in their favor and against Defendant(s), determine and
award Atlantic and Brown their damages, including punitive damages and an
award of reasonable attorney’s fees and costs, pursuant to Florida law, for the
prosecution of these claims.
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COUNT IV - BREACH OF ORAL CONTRACT
Brown and Atlantic sue Allen and Christian for breach of oral contract, and
in support thereof alleges:
58.Brown and Atlantic restate and incorporate the allegations set forth in
paragraphs 1 through 35 and 52 through 56 above as if fully set forth
herein.
59.This is an action for breach of contract against Allen and Christian who
breached the oral contract by, among other things, failing to make
payment to CBF.
60.In additional to failing to make payment to CBF, Allen and/or Christian
failed to make payment to Atlantic.
61.Brown and Atlantic substantially performed pursuant to the oral
agreement.
62.Brown and Atlantic have been harmed by Allen’s and/or Christian’s
breach.
WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court enter a judgment in their favor and against Defendant(s), determine and
award Atlantic and Brown their damages, and any other relief they are entitled to
and that is just pursuant to Florida law and the circumstances.
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COUNT V – In the Alternative – QUANTUM MERUIT/QUASI-CONTRACT
Brown and Atlantic, in the alternative to Count I, above, sue Allen and
Christian for quantum meruit / quasi-contract, and in support thereof alleges:
63. Brown and Atlantic restate and incorporate the allegations set forth in
paragraphs 1 through 35, 52 through 56, 60 and 61 above as if fully set
forth herein.
64.Additional terms to the oral agreement included that Allen would receive:
all of Atlantic’s accounts receivable; additional corporate assets of
Brown; and secure non-competition agreements and employment
agreements with Atlantic’s two key personnel.
65.Allen and/or Christian assented to and received the accounts receivable,
additional corporate assets of Brown, non-competition and employment
agreements from Atlantic’s two key personnel.
66.In the ordinary course of common events, a reasonable person receiving
such a benefit normally would expect to pay for it.
67.Allen and Christian failed to pay for such goods or services.
68.Allen and/or Christian was unjustly enriched thereby.
69.It would be unjust for Allen and/or Christian not to pay for such goods or
services.
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WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court enter a judgment in their favor and against Defendant(s), determine and
award Atlantic and Brown their damages, award them reasonable attorney fees
pursuant to the Wrongful Act Doctrine and other Florida Law, and grant any other
relief they are entitled to and that is just pursuant to Florida law and the
circumstances.
COUNT VI - INDEMNITY
Brown and Atlantic sue Allen, Christian and Gall for common law
indemnity, and in support thereof alleges:
70.Cross-Plaintiffs restate and incorporate the allegations set forth in
paragraphs 1 through 35, 52 through 56, 60 and 61 above as if fully set
forth herein.
71.Brown and/or Atlantic relied upon the agreement with Allen, Christian
and Gall and acted thereupon.
72.Allen, Christian and Gall received the benefits of the agreement with
Brown and Atlantic but failed to perform the burdens associated
therewith.
73.Brown and/or Atlantic are without fault as to the liability alleged in
Plaintiff’s, CBF's, Complaint.
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74.Any liability attributed to Brown and/or Atlantic, is vicarious liability
through the actions of Allen, Christian and/or Gall.
75.Atlantic and Brown are entitled to be indemnified by Allen, Christian
and/or Gall from any liability to CBF.
WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court enter a judgment in their favor and against Defendant(s), determine and
award Atlantic and Brown their damages, award them reasonable attorney fees
pursuant to the Wrongful Act Doctrine and other Florida Law, and grant any other
relief they are entitled to and that is just pursuant to Florida law and the
circumstances.
COUNT VII - NEGLIGENT MISREPRESENTATION
Brown and Atlantic sue Allen and Christian for negligent misrepresentation,
and in support thereof alleges:
76. Cross-Plaintiffs restate and incorporate the allegations set forth in
paragraphs 1 through 35, 52 through 56, 60 and 61 above as if fully set
forth herein.
77.Allen and/or Christian represented that it wanted to purchase Atlantic, as
a going business, with the intent of inducing Atlantic and Brown to
surrender valuable assets and services.
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78.Allen’s and/or Christian’s representation of intent to purchase Atlantic
was false.
79.Atlantic and Brown believed Allen’s and/or Christian’s statement was
true and reasonably relied upon it to their detriment.
80.As a result of Allen’s and/or Christian’s false statement, Atlantic and
Brown have suffered damages.
WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court enter a judgment in their favor and against Defendant(s), determine and
award Atlantic and Brown their damages, including punitive damages and an
award of reasonable attorney’s fees and costs, pursuant to Florida law, for the
prosecution of these claims.
COUNT VIII – ACTION FOR EQUITABLE ACCOUNTING AGAINST CBF
Brown and Atlantic sue CBF for an equitable accounting, and in support
thereof alleges:
81. Brown and Atlantic restate and incorporate the allegations set forth in
paragraphs 1 through 35 and 37 through 41 above as if fully set forth
herein.
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82. As more fully set forth in the claims above, both CBF and Allen and/or
Gall instructed Atlantic’s customers to make payment to their own
accounts and presumably both collected funds from Atlantic’s customers.
83. Brown and Atlantic remain unsure of how much money was collected
from Atlantic’s customers.
84. Brown and Atlantic remain unsure of how much money was exchanged
between Allen and CBF.
85. Brown and Atlantic have demanded records and/or an accounting from
CBF and Allen and, to date, none have provided such information.
86. Atlantic and Brown are entitled to an accounting from February 1, 2016
due to the complex nature of the tripartite relationship between Atlantic
and/or Brown, CBF and Allen and/or Gall. Further Allen and/or Gall had
fiduciary and contractual duties with respect to Atlantic and/or Brown.
87. In paragraph 104 of CBF’s, Complaint, as part of CBF’s own claim for
an equitable accounting from Allen, CBF expressly alleges the
complexity of the transactional relationship between the parties at issue.
88. Atlantic and Brown lack a remedy at law.
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WHEREFORE, Defendants Atlantic and Brown respectfully request
that this Court order the following relief: (a) an equitable accounting of all funds
that CBF has received from Allen, Gall, Christian and any of Atlantic’s Account
Debtors and from Atlantic directly; (b) that to the extent that CBF has received any
funds from Allen, Gall or Christian, that CBF be ordered to set off such funds from
any accounts of Atlantic and Brown; (c) that this Court award such other further,
additional and supplemental relief as may be appropriate.
COUNT IX – ACTION FOR EQUITABLE ACCOUNTING AGAINST ALLEN
Brown and Atlantic sue Allen for an equitable accounting, and in support
thereof alleges:
89. Brown and Atlantic restate and incorporate the allegations set forth in
paragraphs 1 through 35, above as if fully set forth herein.
90. As more fully set forth in the claims above, both CBF and Allen and/or
Gall instructed Atlantic’s customers to make payment to their own
accounts and presumably both collected funds from Atlantic’s customers.
91. Brown and Atlantic remain unsure of how much money was collected
from Atlantic’s customers.
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92. Brown and Atlantic remain unsure of how much money was exchanged
between Allen and CBF.
93. Brown and Atlantic have demanded records and/or an accounting from
CBF and Allen and, to date, none have provided such information.
94. Atlantic and Brown are entitled to an accounting from February 1, 2016
due to the complex nature of the tripartite relationship between Atlantic
and/or Brown, CBF and Allen and/or Gall. Further Allen and/or Gall had
fiduciary and contractual duties with respect to Atlantic and/or Brown.
95. In paragraph 104 of CBF’s Complaint, as part of CBF’s own claim for
an equitable accounting from Allen, CBF expressly alleges the
complexity of the transactional relationship between the parties at issue.
96. Atlantic and Brown lack a remedy at law.
WHEREFORE, Defendants Atlantic and Brown respectfully request that this
Court order the following relief: (a) an equitable accounting of all funds that Allen
has received from CBF and any of Atlantic’s Account Debtors and from Atlantic
directly; (b) that to the extent that Allen has received any accounts, or the proceeds
thereof, that Atlantic be awarded an equitable lien or constructive trust upon any
such property and/or that Allen be ordered to disgorge itself and/or pay over the
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Atlantic all Accounts and/or the proceeds thereof; and (c) that this Court award
such other further, additional and supplemental relief as may be appropriate.
CLAIM FOR ATTORNEY FEES
Brown and Atlantic demand attorney’s fees in accordance with the Wrongful
Act Doctrine, Reiterer v. Monteil, 98 So. 3d 586, 588 (Fla. 2d DCA 2012) (noting
that the wrongful act doctrine is “a narrow exception to the rule that attorney’s fees
are recoverable only when authorized by statute or contract”); Fla. Patient’s
Compensation Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985) (“This state has
recognized a limited exception to this general American Rule in situations
involving inequitable conduct.”), Stockman v. Downs, 573 So. 2d 835 (Fla. 1991),
the agreement(s) between the parties, and other relevant Florida Law.
ONGOING DISCOVERY
Discovery is ongoing at this time and Atlantic and Brown reserve the right to
add additional affirmative defenses, counter claims and cross claims should they
become known in discovery.
Respectfully submitted this 19th day of December, 2016, by:
ANASTASIA LAW, P.L.
Page 21 of 22
Attorneys for Defendants Atlantic Controls
and Anthony W. Brown
/s/ Undine C. George
Undine C. George
Florida Bar No.: 16872
Pamela M.M. Holcombe
Florida Bar No.: 135010
107 A 11th Street
Saint Augustine, Florida 32080
(904) 236-6243–Telephone
Service Email: undine@anastasialaw.net
Service Email: pamela@anastasialaw.net
Secondary Email: service@anastasialaw.net
Page 22 of 22
EXHIBIT 1
EXHIBIT 2
Preview
Filing # 50280213 E-Filed 12/19/2016 05:04:53 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA CASE NO.: 2016-CA-004103-0 COMMERCIAL BUSINESS FINANCE CORP. DBA COMMERCIAL BUSINESS FINANCE, a Florida Corporation, Plaintiff, vs. ATLANTIC CONTROLS CORPORATION a Florida Corporation; ANTHONY W. BROWN, Individually, jointly, and severally; ALLEN ELECTRIC SUPPLY CO., a Michigan Corporation; and RICHARD S. GALL, an Individual. Defendants. / MOTION FOR LEAVE TO FILE PLEADING WITH CROSS, COUNTER AND THIRD PARTY CLAIMS COME NOW, Defendants, ATLANTIC CONTROLS CORPORATION a Florida Corporation, and ANTHONY W. BROWN, by and through undersigned counsel, pursuant to Rule 1.190 of the Florida Rules of Civil Procedure, move this Court to grant leave to file counterclaims and crossclaims, and states as follows: 1. Plaintiff filed a Complaint on May 12, 2016. 2. Defendants Atlantic Controls Corporation (hereinafter “ACC”), and Anthony W. Brown (hereinafter “Brown”) filed their answer with affirmative defenses on June 14, 2016. 3. On November 18, 2016, the court held a case management conference and, pursuant to the Case Management Order rendered December 2, 2016, set the deadline for Defendants to file their motion for leave to file crossclaim or counterclaim to be December 19, 2016. 4. Defendants submit this motion on time and in accordance with said Case Management Order. A copy of the pleading is attached hereto as Exhibit A. 5. Fla. R. Civ. Pro. 1.190(a) states that leave of court shall be given freely when justice so requires. 6. It has always been the policy of Florida courts to freely allow amendments to pleadings so that cases can be tried on their merits and justice may be achieved. In exercising its discretion to allow or disallow an amendment, the Court should resolve all doubts in favor of allowing the amendment. Bill Williams Air Conditioning & Heating, inc. v. Haymarket Co-op Bank, 592 So.2d 302 (Fla. 1st DCA 1991). Page 2 of 4 7. Plaintiff will not be unduly prejudiced by allowing Defendant leave to amend their claims. Moreover, some of the factual basis for said claims arose after the filing of Plaintiff’s complaint. 8. This motion is being filed in good faith. WHEREFORE, Defendants respectfully request that this Court enter an Order granting leave of Court to file the attached pleading, have it relate back in time as appropriate under the law and grant any other relief which this Court deems just and proper under the circumstances. CERTIFICATE OF GOOD FAITH CONFERENCE On December 18, 2016, Plaintiff’s counsel, Undine C. George, Esq., emailed Plaintiff’s counsel and counsel for Defendants Allen Electric Supply Co. and Richard S. Gall, in a good faith effort to resolve the matters presented by the Motion. On December 19, 2016, Jocelyne A. Macelloni, Esq., attorney for the Plaintiff, emailed that she was currently unable to consent. On December 19, 2016 Defendant’s counsel initiated a telephone call to John Y. Benford, Esq., attorney for Defendants Allen Electric Supply Co. and Richard S. Gall, who communicated through his assistant that they are of the position that the clients were dismissed and that he no longer needs to participate in the matter. Page 3 of 4 CERTIFICATE OF SERVICE I hereby certify that a copy hereof has been furnished by email through the Florida Courts E-filing Portal service system on December 19, 2016, to Jocelyne A. Macelloni, Esq., attorney for the Plaintiff, at jocelyne.macelloni@uulaw.net and to John Y. Benford, Esq., attorney for Defendants Allen Electric Supply Co. and Richard S. Gall, at JYB@JYBLaw.com and alyssa@JYBLaw.com. ANASTASIA LAW, P.L. Attorneys for Defendants Atlantic Controls and Anthony W. Brown /s/ Undine C. George Undine C. George Florida Bar No.: 16872 Pamela M.M. Holcombe Florida Bar No.: 135010 107 A 11th Street Saint Augustine, Florida 32080 (904) 236-6243–Telephone Service Email: undine@anastasialaw.net Service Email: pamela@anastasialaw.net Secondary Email: service@anastasialaw.net Page 4 of 4 EXHIBIT A IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, COMMERCIAL BUSINESS FINANCE FLORIDA CORP. DBA COMMERCIAL BUSINESS FINANCE, a Florida Corporation, CASE NO.: 2016-CA-004103-0 Plaintiff, vs. ATLANTIC CONTROLS CORPORATION a Florida Corporation; ANTHONY W. BROWN, Individually, jointly, and severally; ALLEN ELECTRIC SUPPLY CO., a Michigan Corporation; and RICHARD S. GALL, an Individual. Defendants. ……………………………………………………..... ATLANTIC CONTROLS CORPORATION a Florida Corporation; and ANTHONY W. BROWN, an Individual, Plaintiffs, -vs- COMMERCIAL BUSINESS FINANCE CORP. DBA COMMERCIAL BUSINESS FINANCE, a Florida Corporation, Counterclaim Defendant; ALLEN ELECTRIC SUPPLY CO., a Michigan Corporation, and RICHARD S. GALL, an Individual, Crossclaim Defendants; and ROBERT CHRISTIAN, an Individual, Third Party Defendant. / ATLANTIC’S COUNTERCLAIM AGAINST CBF; CROSSCLAIM AGAINST ALLEN ELECTRIC AND GALL; AND THIRD PARTY CLAIM AGAINST ROBERT CHRISTIAN Defendants/Cross-Plaintiffs, Atlantic Controls Corporation, a Florida corporation (“Atlantic”), and Anthony W. Brown (“Brown”), an individual, by and through undersigned counsel, hereby sue Plaintiff/Counterclaim Defendant, Commercial Business Finance, Corp. d/b/a Commercial Business Finance, a Florida Corporation (“CBF”), Defendants/Crossclaim Defendants, Allen Electric Supply Co., a Michigan Corporation (“Allen”), and Richard S. Gall, an individual (“Gall”), and Third Party Defendant, Robert Christian, an individual (“Christian”), (collectively “Defendants”), and in support thereof, state as follows: Party Allegations 1. CBF is a Florida corporation with its principal place of business located in Orange County, Florida. 2. Atlantic is a Florida corporation with its principal place of business located in St. Johns County, Florida. 3. Brown is an individual who resides in St. Johns County, Florida, is over the age of 18 and is otherwise sui juris. 4. Allen is a Michigan corporation with its principal place of business located in Wayne County, Michigan. Page 2 of 22 5. Gall is an individual who, upon information and belief, resides in Michigan, is over the age of 18, is the Operations Manager for Allen Electric and is otherwise sui juris. 6. Christian is an individual who, upon information and belief, resides in Michigan, is over the age of 18, is the owner of Allen Electric and is otherwise sui juris. Allegations as to Jurisdiction and Venue 7. This is an action for money damages, which exceeds $75,000, exclusive of costs, interest, and attorneys’ fees thereby vesting Complex Business Division of the Circuit Court with jurisdiction over this cause pursuant to Chapter 26 of the Florida Statutes and the Local Rules. 8. Defendants are subject to the personal jurisdiction and venue of this Court because: a. CBF is a Florida corporation with its principal place of business located in Orange County, Florida. b. Allen and Gall were already served in the underlying action to this claim and pursuant to Fla. R. Civ. P. 1.070(h) and Florida Statute §48.193(1)(a)(2), service of process may be made upon Allen Electric and Gall due to Allen Electric and Gall having each Page 3 of 22 committed a tortious act within the State of Florida (as described in more detail below). c. Christian traveled to Florida pursuant to the negotiations with Atlantic and Brown, and pursuant to Fla. R. Civ. P. 1.070(h) and Florida Statute §48.193(1)(a)(2), service of process may be made upon Christian due to his having each committed a tortious act within the State of Florida (as described in more detail below). d. The cause of action accrued in Orange County, Florida. Allegations Common to Each Count 9. On or about February 1, 2016, Atlantic and Brown entered into an oral agreement with Allen, Christian and/or Gall for the purchase and sale of Atlantic (hereinafter the “Agreement”). 10.All, or most, negotiations had been conducted directly by Christian, who held himself out to be the owner of Allen and who traveled to Florida to facilitate the negotiations with Atlantic and Brown. 11.Atlantic’s and Brown’s business relationship with Allen and Christian, and negotiations thereof were made in good faith by Atlantic and Brown. 12.Allen and Christian expressly promised that as part of the purchase of Atlantic, that Allen and/or Christian would satisfy all obligations owed by Atlantic, including any obligations owed to Plaintiff, CBF, and to Page 4 of 22 perform all of Brown's and Atlantic's obligations pursuant to Atlantic’s agreement with CBF. 13.Allen and Christian further promised that it would: a. pay Atlantic’s vendors and suppliers to enable Atlantic to continue as a going business; b. enter into long term employment or consulting agreements with Atlantic’s key personnel including Nigel Brown and Anthony Brown, so they could continue the business of Atlantic. 14.Prior to Atlantic’s and Brown’s negotiations with Allen and Christian, Atlantic had properly directed all its clients to make payment to CBF pursuant to their factoring agreement. 15. On information and belief, Allen, Christian and/or Gall knew that if it sent out a notice to the clients of Atlantic to make their payments to Allen, in violation of the factoring agreement without CBF being satisfied, it would cripple Atlantic financially and expose it to further liability. 16.Yet, under the guise of formalizing a sale of Atlantic and other assets of Brown’s Allen and Gall sent out a notice to Atlantic’s clients, a copy of which is attached as Exhibit “1”, directing such clients to make payment to Allen and Gall. Page 5 of 22 17.At the insistence of Allen and Christian, and with reasonable reliance upon representations from Allen and Christian, Brown and Atlantic substantially performed pursuant to the oral contract. 18.On information and belief, Gall and Allen sent correspondence to clients of Atlantic on or around February 19, 2016, directing that those clients make their payments to Allen. See attached Exhibit “1”. 19.On information and belief, CBF also sent correspondence to clients of Atlantic on or around March 22, 2016, directing that those clients make their payments to CBF. See attached Exhibit “2”. 20.The conflicting letters confused Atlantic’s clients and damaged Atlantic’s business reputation. 21.Atlantic and/or Brown attempted to reassure CBF that they would be fully satisfied but by early April of 2016, it became apparent to Atlantic and Brown that CBF, Allen and/or Gall were communicating directly and to the detriment of Atlantic. 22.Although in February and March of 2016 Allen and/or Christian did send occasional payment to Atlantic, Allen and/or Christian thereafter refused to pay, among other things, the employees, suppliers and vendors of Atlantic. Page 6 of 22 23. Allen and/or Christian breached the oral agreement by, among other things, failing to make full payment as agreed. 24.Upon information and belief, Allen and/or Gall did in fact tender funds to CBF in relation to the oral agreement they had negotiated with Atlantic and Brown. 25.Brown and Atlantic remain unsure of how much money was exchanged between Allen, Gall and CBF. Brown and Atlantic have demanded records and/or an accounting from CBF and Allen and Gall and, to date, neither have provided such information. 26.Upon information and belief, CBF interfered with Atlantic and Brown's negotiations and business relationship with Allen, Christian and/or Gall as well as with Atlantic’s business relationship with its customers. 27.Upon information and belief, Allen, Christian and/or Gall interfered with Atlantic and Brown's business relationship with CBF as well as Atlantic’s relationship with its customers. 28.The conflicting letters and lack of accounting of the funds exchanged has been financially devastating to Atlantic. 29.Brown is the sole owner of Atlantic and his livelihood depended upon Atlantic’s profitability. 30.Brown and Atlantic have been harmed by the actions of Allen. Page 7 of 22 31.Brown and Atlantic have been harmed by the actions of Christian. 32.Brown and Atlantic have been harmed by the actions of Gall. 33.Brown and Atlantic have been harmed by the actions of CBF. 34.All conditions precedent to the filing of this action have either been fulfilled or waived. 35.Atlantic and Brown have incurred attorneys’ fees and costs for the bringing of this action. COUNT I - TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIPS Brown and Atlantic sue CBF for tortious interference with business relationships, and in support thereof alleges: 36. Brown and Atlantic restate and incorporate the allegations set forth in paragraphs 1 through 35, above as if fully set forth herein. 37. As more fully set forth above, Atlantic and Brown had a business relationship with Allen and/or Christian whereby CBF would be satisfied of its agreements with Brown and Atlantic, Atlantic would stay in business, Brown and another key personnel would remain employed for years. 38.Atlantic’s business relationship with Allen and Christian and negotiations thereof were made in good faith by Atlantic and Brown. Page 8 of 22 39.Atlantic attempted to notify CBF of the good faith nature of the sale of Atlantic to Allen and warn that interfering with the planned transaction could ruin the business of Atlantic. 40.Notwithstanding of Atlantic and Brown’s reassurances and warnings to CBF, CBF ignored Atlantic and Brown’s instructions. 41.Not only did CBF insert itself into the relationship with Atlantic/Brown and Allen/Christian/Gall, CBF directly communicated with the customers of Atlantic to the detriment of Atlantic’s business relationships. 42.CBF tortiously interfered with Atlantic and Brown’s relationship with Allen, Christian and Gall. 43.Further, CBF tortuously interfered with Atlantic and Brown’s relationship with their customers. 44.Atlantic and Brown were damaged by CBF’s tortious conduct. WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court enter a judgment in their favor and against Defendant(s), determine and award Atlantic and Brown their damages, including punitive damages and an award of reasonable attorney’s fees and costs, pursuant to Florida law, for the prosecution of these claims. Page 9 of 22 COUNT II – SET-OFF Brown and Atlantic sue CBF for an action of set-off, and in support thereof alleges: 45. Brown and Atlantic restate and incorporate the allegations set forth in paragraphs 1 through 35 and 37 through 41 above as if fully set forth herein. 46.On information and belief, Allen, Christian and/or Gall tendered funds to CBF which are a direct result of the business relationship between Atlantic/Brown with Allen/Christian/Gall. 47.Any funds so tendered to CBF are for the same liability as CBF has sued for in the instant action, and are indistinct therefrom. 48. Allowing CBF to retain those funds without granting a set-off to Atlantic and Brown would unjustly result in a windfall to CBF. 49.Atlantic and Brown are entitled to a set-off of any and all funds tendered to CBF by Allen, Christian and/or Gall which arise from the business relationship of Atlantic/Brown, with Allen/Christian/Gall. WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court enter a judgment in their favor and against Defendant(s), determine and award Atlantic and Brown their damages and the amount of set-off they are Page 10 of 22 entitled to, as well as an award of reasonable attorney’s fees and costs, pursuant to Florida law, for the prosecution of these claims. COUNT III – TORTIOUS INTERFERENCE WITH BUSINESS RELATIONSHIP AGAINST ALLEN ELECTRIC, CHRISTIAN AND GALL Brown and Atlantic sue Allen, Christian and Gall for tortious interference with business relationships, and in support thereof alleges: 50.Brown and Atlantic restate and incorporate the allegations set forth in paragraphs 1 through 35, above as if fully set forth herein. 51.As more fully set forth herein, Atlantic and Brown had a business relationship with its key personnel including but not limited to, Nigel Brown, its vendors, its clients, and with CBF. 52. On information and belief, Allen, Christian and/or Gall knew that if it sent out a notice to the clients of Atlantic to make their payments to Allen, without CBF being satisfied, it would cripple Atlantic financially and expose it to further liability. 53.On information and belief, Allen, Christian and/or Gall knew that if it recruited Atlantic’s key personnel with long term employment and non- compete provisions, it would seize up the workings of the small company. Page 11 of 22 54.On information and belief Allen, Christian and/or Gall knew that if it failed to pay Atlantic’s vendors and suppliers, it could not produce for its clients. 55. Yet, under the guise of formalizing a sale of Atlantic and other assets of Brown’s, Allen, Christian and/or Gall sent out a notice to Atlantic’s clients, (Exhibit 1) directing such clients to make payment to Allen and/or Gall. 56.Upon information and belief, Allen, Christian and/or Gall sent such letters without satisfying CBF pursuant to the agreement to sell Atlantic to Allen and/or Christian. 57.Atlantic and Brown have been damaged by the conduct of Allen, Christian and Gall. WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court enter a judgment in their favor and against Defendant(s), determine and award Atlantic and Brown their damages, including punitive damages and an award of reasonable attorney’s fees and costs, pursuant to Florida law, for the prosecution of these claims. Page 12 of 22 COUNT IV - BREACH OF ORAL CONTRACT Brown and Atlantic sue Allen and Christian for breach of oral contract, and in support thereof alleges: 58.Brown and Atlantic restate and incorporate the allegations set forth in paragraphs 1 through 35 and 52 through 56 above as if fully set forth herein. 59.This is an action for breach of contract against Allen and Christian who breached the oral contract by, among other things, failing to make payment to CBF. 60.In additional to failing to make payment to CBF, Allen and/or Christian failed to make payment to Atlantic. 61.Brown and Atlantic substantially performed pursuant to the oral agreement. 62.Brown and Atlantic have been harmed by Allen’s and/or Christian’s breach. WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court enter a judgment in their favor and against Defendant(s), determine and award Atlantic and Brown their damages, and any other relief they are entitled to and that is just pursuant to Florida law and the circumstances. Page 13 of 22 COUNT V – In the Alternative – QUANTUM MERUIT/QUASI-CONTRACT Brown and Atlantic, in the alternative to Count I, above, sue Allen and Christian for quantum meruit / quasi-contract, and in support thereof alleges: 63. Brown and Atlantic restate and incorporate the allegations set forth in paragraphs 1 through 35, 52 through 56, 60 and 61 above as if fully set forth herein. 64.Additional terms to the oral agreement included that Allen would receive: all of Atlantic’s accounts receivable; additional corporate assets of Brown; and secure non-competition agreements and employment agreements with Atlantic’s two key personnel. 65.Allen and/or Christian assented to and received the accounts receivable, additional corporate assets of Brown, non-competition and employment agreements from Atlantic’s two key personnel. 66.In the ordinary course of common events, a reasonable person receiving such a benefit normally would expect to pay for it. 67.Allen and Christian failed to pay for such goods or services. 68.Allen and/or Christian was unjustly enriched thereby. 69.It would be unjust for Allen and/or Christian not to pay for such goods or services. Page 14 of 22 WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court enter a judgment in their favor and against Defendant(s), determine and award Atlantic and Brown their damages, award them reasonable attorney fees pursuant to the Wrongful Act Doctrine and other Florida Law, and grant any other relief they are entitled to and that is just pursuant to Florida law and the circumstances. COUNT VI - INDEMNITY Brown and Atlantic sue Allen, Christian and Gall for common law indemnity, and in support thereof alleges: 70.Cross-Plaintiffs restate and incorporate the allegations set forth in paragraphs 1 through 35, 52 through 56, 60 and 61 above as if fully set forth herein. 71.Brown and/or Atlantic relied upon the agreement with Allen, Christian and Gall and acted thereupon. 72.Allen, Christian and Gall received the benefits of the agreement with Brown and Atlantic but failed to perform the burdens associated therewith. 73.Brown and/or Atlantic are without fault as to the liability alleged in Plaintiff’s, CBF's, Complaint. Page 15 of 22 74.Any liability attributed to Brown and/or Atlantic, is vicarious liability through the actions of Allen, Christian and/or Gall. 75.Atlantic and Brown are entitled to be indemnified by Allen, Christian and/or Gall from any liability to CBF. WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court enter a judgment in their favor and against Defendant(s), determine and award Atlantic and Brown their damages, award them reasonable attorney fees pursuant to the Wrongful Act Doctrine and other Florida Law, and grant any other relief they are entitled to and that is just pursuant to Florida law and the circumstances. COUNT VII - NEGLIGENT MISREPRESENTATION Brown and Atlantic sue Allen and Christian for negligent misrepresentation, and in support thereof alleges: 76. Cross-Plaintiffs restate and incorporate the allegations set forth in paragraphs 1 through 35, 52 through 56, 60 and 61 above as if fully set forth herein. 77.Allen and/or Christian represented that it wanted to purchase Atlantic, as a going business, with the intent of inducing Atlantic and Brown to surrender valuable assets and services. Page 16 of 22 78.Allen’s and/or Christian’s representation of intent to purchase Atlantic was false. 79.Atlantic and Brown believed Allen’s and/or Christian’s statement was true and reasonably relied upon it to their detriment. 80.As a result of Allen’s and/or Christian’s false statement, Atlantic and Brown have suffered damages. WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court enter a judgment in their favor and against Defendant(s), determine and award Atlantic and Brown their damages, including punitive damages and an award of reasonable attorney’s fees and costs, pursuant to Florida law, for the prosecution of these claims. COUNT VIII – ACTION FOR EQUITABLE ACCOUNTING AGAINST CBF Brown and Atlantic sue CBF for an equitable accounting, and in support thereof alleges: 81. Brown and Atlantic restate and incorporate the allegations set forth in paragraphs 1 through 35 and 37 through 41 above as if fully set forth herein. Page 17 of 22 82. As more fully set forth in the claims above, both CBF and Allen and/or Gall instructed Atlantic’s customers to make payment to their own accounts and presumably both collected funds from Atlantic’s customers. 83. Brown and Atlantic remain unsure of how much money was collected from Atlantic’s customers. 84. Brown and Atlantic remain unsure of how much money was exchanged between Allen and CBF. 85. Brown and Atlantic have demanded records and/or an accounting from CBF and Allen and, to date, none have provided such information. 86. Atlantic and Brown are entitled to an accounting from February 1, 2016 due to the complex nature of the tripartite relationship between Atlantic and/or Brown, CBF and Allen and/or Gall. Further Allen and/or Gall had fiduciary and contractual duties with respect to Atlantic and/or Brown. 87. In paragraph 104 of CBF’s, Complaint, as part of CBF’s own claim for an equitable accounting from Allen, CBF expressly alleges the complexity of the transactional relationship between the parties at issue. 88. Atlantic and Brown lack a remedy at law. Page 18 of 22 WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court order the following relief: (a) an equitable accounting of all funds that CBF has received from Allen, Gall, Christian and any of Atlantic’s Account Debtors and from Atlantic directly; (b) that to the extent that CBF has received any funds from Allen, Gall or Christian, that CBF be ordered to set off such funds from any accounts of Atlantic and Brown; (c) that this Court award such other further, additional and supplemental relief as may be appropriate. COUNT IX – ACTION FOR EQUITABLE ACCOUNTING AGAINST ALLEN Brown and Atlantic sue Allen for an equitable accounting, and in support thereof alleges: 89. Brown and Atlantic restate and incorporate the allegations set forth in paragraphs 1 through 35, above as if fully set forth herein. 90. As more fully set forth in the claims above, both CBF and Allen and/or Gall instructed Atlantic’s customers to make payment to their own accounts and presumably both collected funds from Atlantic’s customers. 91. Brown and Atlantic remain unsure of how much money was collected from Atlantic’s customers. Page 19 of 22 92. Brown and Atlantic remain unsure of how much money was exchanged between Allen and CBF. 93. Brown and Atlantic have demanded records and/or an accounting from CBF and Allen and, to date, none have provided such information. 94. Atlantic and Brown are entitled to an accounting from February 1, 2016 due to the complex nature of the tripartite relationship between Atlantic and/or Brown, CBF and Allen and/or Gall. Further Allen and/or Gall had fiduciary and contractual duties with respect to Atlantic and/or Brown. 95. In paragraph 104 of CBF’s Complaint, as part of CBF’s own claim for an equitable accounting from Allen, CBF expressly alleges the complexity of the transactional relationship between the parties at issue. 96. Atlantic and Brown lack a remedy at law. WHEREFORE, Defendants Atlantic and Brown respectfully request that this Court order the following relief: (a) an equitable accounting of all funds that Allen has received from CBF and any of Atlantic’s Account Debtors and from Atlantic directly; (b) that to the extent that Allen has received any accounts, or the proceeds thereof, that Atlantic be awarded an equitable lien or constructive trust upon any such property and/or that Allen be ordered to disgorge itself and/or pay over the Page 20 of 22 Atlantic all Accounts and/or the proceeds thereof; and (c) that this Court award such other further, additional and supplemental relief as may be appropriate. CLAIM FOR ATTORNEY FEES Brown and Atlantic demand attorney’s fees in accordance with the Wrongful Act Doctrine, Reiterer v. Monteil, 98 So. 3d 586, 588 (Fla. 2d DCA 2012) (noting that the wrongful act doctrine is “a narrow exception to the rule that attorney’s fees are recoverable only when authorized by statute or contract”); Fla. Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1148 (Fla. 1985) (“This state has recognized a limited exception to this general American Rule in situations involving inequitable conduct.”), Stockman v. Downs, 573 So. 2d 835 (Fla. 1991), the agreement(s) between the parties, and other relevant Florida Law. ONGOING DISCOVERY Discovery is ongoing at this time and Atlantic and Brown reserve the right to add additional affirmative defenses, counter claims and cross claims should they become known in discovery. Respectfully submitted this 19th day of December, 2016, by: ANASTASIA LAW, P.L. Page 21 of 22 Attorneys for Defendants Atlantic Controls and Anthony W. Brown /s/ Undine C. George Undine C. George Florida Bar No.: 16872 Pamela M.M. Holcombe Florida Bar No.: 135010 107 A 11th Street Saint Augustine, Florida 32080 (904) 236-6243–Telephone Service Email: undine@anastasialaw.net Service Email: pamela@anastasialaw.net Secondary Email: service@anastasialaw.net Page 22 of 22 EXHIBIT 1 EXHIBIT 2