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Filing # 196421210 E-Filed 04/17/2024 03:53:09 PM
IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR MANATEE COUNTY, FLORIDA
LUXUS CAPITAL, LLC, CASE NO.: 2024-CA-000366AX
a Florida limited liability company, and
VANGUARD ARMS, LLC, a Florida
limited liability company,
Plaintiffs,
VS.
EASTON LAND HOLDINGS, LLC,
a Florida limited liability company,
Defendant.
/
AMENDED MPLAT T
(Contains Demand for Jury Trial)
Plaintiff, LUXUS CAPITAL, LLC, a Florida limited liability company, and
VANGUARD ARMS, LLC, sues the Defendant, EASTON LAND HOLDINGS, LLC, and
alleges as follows:
GENERAL ALLEGATIONS AND BACKGROUND
1 Plaintiff, LUXUS CAPITAL, LLC (“Luxus”), at all material times herein, was
and is a Florida limited liability company with its principal place of business and headquarters in
Bradenton, Manatee County, Florida.
2. Plaintiff, VANGUARD ARMS, LLC, (“Vanguard”), at all material times herein,
was and is a Florida limited liability company with its principal place of business and
headquarters in Bradenton, Manatee County, Florida.
3 Defendant, EASTON LAND HOLDINGS, LLC (“Easton”) is a Florida limited
liability company with its principal place of business in Tampa, Hillsborough County, Florida.
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At all material times herein, Mariano Cibran (“Mr. Cibran”) was the manager or managing
member of Easton.
4 Through a Special Warranty Deed recorded on April 11, 2022, in the Manatee
County Public Records, Instrument Number 202241048825, Easton is the owner of certain real
estate in Manatee County, Florida, that is legally described as Lot 1, 64 Center East, A
Commercial Subdivision, According to the Map or Plat thereof, as Recorded in Plat Book 42,
Pages 120 through 123, Inclusive, of the Public Records of Manatee County, Florida, Parcel
Identification Number 11156.1035/9, and having a street address of 5115 East State Road 64,
Bradenton, Florida 34208, which is undivided and un-subdivided realty consisting of a north
portion containing an empty undeveloped lot and a south portion that has a commercial structure
thereon (collectively the “Realty”).
5 On or about January 19, 2023, Luxus entered into a twelve (12) month
Commercial Lease Agreement with Easton with respect to the south portion of the Realty, a copy
of the Lease Agreement attached hereto and made a part hereof as Exhibit “1” (the “Lease
Agreement”).
6 Entry into the Lease Agreement between Luxus and Easton was predicated upon
Luxus using the Premises for the sale of firearms and ammunition. As contained in section 1.3
of the Lease Agreement, commencement of the Lease Agreement was to occur “when ATF has
given approval.” Furthermore, pursuant to section 4.1 of the Lease Agreement, the use of the
Premises was and is for “an office for the purchase and sale of collectibles, including firearms,
ammunitions, and related items.” Additionally, the Lease Agreement addendum, titled
“Commercial Lease Addendum”, as contained in sections 1, 5, and 8 evidence the requirement of
ATF approval.
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7
What made the Premises of interest to Luxus, which was a material inducement
for it to enter into the Lease Agreement, was the fact that it had a bank vault. Prior to entering in
the Lease Agreement, Luxus, through its representatives, had discussions with Mr. Cibran,
Easton’s representative, regarding the removal of the pre-existing safe deposit boxes in order to
accommodate the storage of a voluminous inventory of firearms and ammunition.
8 Easton, through Mr. Cibran, even interacted with Alcohol Tobacco & Firearms
(“ATF”) with respect to Luxus usage of the Premises
9 The Lease Agreement, section | .2(a), also provided for “two additional terms of
five (5) years,” In accordance with section 1.2(a) of the Lease Agreement, “If Tenant exercises
the option period, the terms and conditions of that renewal period shall be the terms and
conditions of this Lease. In order to renew, Tenant shall give written notice of such renewal to
Landlord Ninety (90) days prior to the expiration of the initial terms hereunder and each
successive optional term.”
10. Nothing contained within the Lease Agreement precluded or otherwise prevented
Luxus’ use of the Premises from being open to the public.
11. Pursuant to the Lease Agreement, Luxus was not precluded from engaging in the
sale of firearms and ammunition.
12. On or about February 23, 2023, Luxus obtained ATF approval, as required by the
Lease Agreement, and provided evidence of that notice to Easton.
13. Atall material times, Vanguard was a business involved in the sale of firearms
and ammunition and other accessories to the public. Within days of entry into the Lease
Agreement, on January 24, 2023, Luxus wrote to Easton and its real estate agent the following:
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Pursuant to Adain’s instructions, this will serve to let you know that Luxus Capital, LLC
would like to sublease a portion of its premises to Vanguard Arms, LLC. Vanguard
Amns, LLC is known to Luxus Capital, LLC, and is its current neighbor (prior to our
location to 5115 E. State Road 64). We also believe Vanguard Arms, LLC is known to
you. Is there any else you would like from either Luxus Capital, LLC or Vanguard Arms,
LLC in order to consent to this sublease? Please let us know. Thanks.
14. Tn response to Luxus’ January 24, 2023 written notice, the same day, Easton by
Mr. Cibran, thereafter responded back in writing stating, “Nothing else. Looks good.”
15. Accordingly, on January 26, 2023, Vanguard commenced its application for its
amended Federal Firearms License (“FFL”) using the Premises as its place of business, a copy of
the application for its amended FFL attached hereto and made a part hereof as Exhibit “2.”
16. Five days later, on January 31, 2023, following Easton’s authorization and
consent for Luxus to sublet a portion of the leasehold Premises to Vanguard, Luxus entered into a
formal Sublease and Office Sharing Agreement (“Sublease Agreement”) with Vanguard with
tespect to the Premises, a copy of which is attached hereto and made a part hereof as Exhibit “3.”
17. Easton reviewed Vanguard’s application for an amended FFL, but if it did not, it
should have. Vanguard’s application for its amended FFLwas available to Luxus for review at all
times. Vanguard’s application for its amended FFL clearly reflects that Vanguard’s business
would be open to the general public, the hours of operation, and the nature of the Premises.
18. Giving rise to the inference that Luxus reviewed Vanguard’s application for its
amended FFL, and if it did not should have, is because on February 6, 2023, Mr. Cibran (who
appears to have signed or acknowledged in some representative capacity for Magnolia
Dayschool) wrote the following email to ATF:
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Hey Chrstine,
I’m aware of the sublease to Vanguard. I’m okay with this.
Mariano Cibran
Magnolia Dayschool
Chrstine A. Hight, a Senior Industry Operations Investigator for ATF as aforesaid, thereafter
replied back on February 7, 2023:
Thank you for responding!
19. Approximately three weeks later, on or about March 1, 2023, Vanguard received
its FFL license, for the Premises location, that is designated for a person or entity intending to
engage in a business involving the sale, as well as the importation, of firearms and ammunition.
20. Luxus’ Sublease Agreement with Vanguard provides a substantial financial
benefit to Luxus, including that of a recoupment of rent being paid to Easton. And as a result of
the financial benefit it is receiving from Vanguard, Luxus exercised, on August 11, 2023, the
initial five (5) year option to renew the Lease Agreement.
21. On August 11, 2023, Luxus provided notice to Easton that it was exercising “its
option to renew the Lease Agreement for an additional term of five (5) years subsequent to the
initial term of the Lease Agreement.” In response, together with Luxus’ query “Will this notice
suffice for Easton’s purposes?” Easton responded back on the same August 11, 2023 stating,
“That works.”
22. At the time Luxus entered into the Lease Agreement with Easton, at the time
Easton consented and authorized Luxus’ Sublease Agreement with Vanguard, and at the time
Luxus exercised its option to renew the Lease Agreement for another 5 years, Easton was aware
of the nature of the businesses being conducted both by Luxus and Vanguard. In fact, on January
31, 2024, Easton, through Mr. Cibran signing or acknowledging in some representative capacity
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for Magnolia Dayschool, wrote the following to Vanguard in an email:
Hey Nick,
T was reaching out because we have some activity going on with the site and we wanted
to discuss some options with you. There are two groups that are interested in purchasing
the sites. Both are very large national companies. One group is only interested in the rear
property and the other is interested in the whole site.
Since you have a right of first refusal that extends for the first 18 months after the lease I
wanted to check in with you to see if you had any interest in buying the site. If you did,
we would formalize with a contract, deposit, inspection period, closing date, etc.
If you do not want to exercise that right then I would tum to the offers. The group that
would like to purchase the rare lot is a childcare company. They do not love the idea of
a gun store so close to a school. I’ve been speaking with this group for a few months
now as they've been looking at my other sites. What I gather from them, is that they will
try to legally remove you from the site. Since they have in house counsel it won’t cost
them anything to pursue this avenue. J’m not an attorney so I don’t know how they’ do
it, but they seemed confident it could be done.
The other group wants the whole parcel, but you are currently under a lease. I’m sure
they can wait out the lease as they would need to work on the zoning and other things for
the property. They have approached me and offered $25,000 for you all to move from the
site. Basically for moving expenses.
Let me know your thoughts and we can figure something out.
Mariano Cibran
Magnolia Dayschool
23. What followed is that on February 16, 2024, notwithstanding Easton’s
knowledge, consent, and authorization of Vanguard operating in the Premises in the manner that
it was and is, Easton served upon Luxus a 20 day notice, Exhibit “4” attached hereto, stating in
part,
...Tenant is not permitted under the lease to use the property as a gun shop. In addition,
the declaration of covenants for the office park where the property is located, section
6.1(m)... specifically prohibits gun shops in the subdivision. This use must immediately
stop. The Owner’s Association has been contacted and they have stated no permission
was obtained for gun shop use. Accordingly, said use must stop immediately.
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24. In addition to being the manager or managing member of Easton, Mr. Cibran also
appears to have an interest in Magnolia Dayschool. At all material times herein, Mr. Cibran was
ontemporaneously marketing the adjacent lot to the Premises, also owned by Easton, for use as
children’s day school. It appears that the above-alleged February 16, 2024, notice provided by
Easton is nothing more than a subterfuge and pretext to remove and dispossess Luxus and
Vanguard from the Premises, which is further evidenced from the January 31, 2024,
above-alleged email provided by Mr. Cibran to Vanguard. The adjacent lot is less than one
thousand feet away from the Premises that Easton leased to Luxus notwithstanding that Luxus
and Vanguard at all material times was and is involved in the sale of firearms and ammunition.
25. At the time Luxus entered into the Lease Agreement with Easton, at the time
Easton consented and authorized Luxus’ Sublease Agreement with Vanguard, and at the time
Luxus exercised its option to renew the Lease Agreement for another 5 years, and through
January 2024, Easton was aware of the nature of the businesses being conducted both by Luxus
and Vanguard, however, at no point in time prior to the February 16, 2024 notice had Easton
>
previously disclosed any prohibition within any Declaration of Covenants with respect to Luxus
and Vanguard’s use of the Premises. Even the above-alleged January 31, 2024, sent
approximately two weeks prior to the February 16, 2024 notice, fails to assert that the business
being conducted in the Premises by Luxus and Vanguard was violating any lease provision or
Declaration of Covenants.
26. In fact, on January 23, 2023, on or about the time Luxus was discussing
Vanguard’s Sublease Agreement with the Easton, Easton’s agent, in an email to Luxus, stated, in
bolded capital letters, the following:
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PER MARIANO HE HAS NO WRITTEN DEC PAGES FOR THE HOA, THIS IS
ACTUALLY ONLY AN HOA THAT MANAGES THE INTERIOR PARK ROADS,
COMMON LIGHTS ON ROADS AND ANY CONDO PROPERTIES IN THIS
PARK. OUR BUILDING HAS ABSOLUTELY NO ACKNOWLEDGEMENT OF
THE HOA. THE ONLY HIGHER POWER THAT CAN DICTATE USE OF OUR
BUILDING AND BUSINESS IS THE CITY OF BRADENTON. NOW IF YOU
DECIDE TO SEPARATE A PROPERTY AND MAKE IT INTO TWO OR MORE
PARCELS / BUILD A BRAND NEW STRUCTURE THEN THE HOA WOULD
NEED TO APPROVE THAT. FYI MOST LIKELY PETER IS LEASING A FLEX
SPACE IN A PARK AND THAT PARK HAS ROADS AND COMMON AREAS
MANAGED BY THE HOA. 90% OF PROPERTIES HAVE SOME SORT OF
HOA MANAGING THE COMMON AREAS, THEY CANNOT DICTATE THE
USE OF A BUILDING UNLESS IT'S A CONNECTED CONDO, IF YOU
GAINED YOUR APPROVAL WITH THE CITY OF BRADENTON THEN YOU
ARE FINE.
COUNT I: ACTION FOR FRAUDULENT INDUCEMENT.
INTO A CONTRACTUAL RELATIONSHIP
{Luxus Lease Agreement with Easton)
27 This is an action for damages in excess of Fifty Thousand ($50,000.00) Dollars,
exclusive of costs, interest, and attorney’s fees.
28. Luxus Capital, LLC hereby realleges and adopts herein each and every allegation
contained in paragraphs | - 26 above.
29. Tn accordance with Camena Investments and Property Management v. Cross, 791
So.2d 595, 598 (Fla. 3d DCA 2001), “... while a buyer might be expected to search the public
tecords before a real estate closing and a contractor might also be expected to search the public
records for flood zones prior to obtaining a permit, these types of searches are not expected to be
performed as standard procedure by a party entering into a commercial lease.”
30. The representations of Easton, as well as its willful and intentional omissions and
failure to disclose, were false and material and knew or should have known of their falsity.
31. Easton, through itself and its agent, made the material false representations, or
intentionally and willfully failed to disclose material information, in order to induce Luxus to
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enter in the alleged Lease Agreement, and thereafter exercise its five (5) year option renewal.
32. Luxus justifiably relied upon the material and false representations, or Easton’s
intentional and willful failure to disclose material information, and entered into the Lease
Agreement, and thereafter exercised its five (5) year option renewal, to its detriment, which is
Easton’s effort to dispossess it from the Premises for activity known to Easton and authorized.
33. As a result of the conduct of Easton, Luxus has sustained direct and consequential
damages.
34. As a result of the above and foregoing, Easton has retained undersigned counsel
to represent it in the above styled cause and has agreed to pay him a reasonable attorney’s fee for
his services. In accordance with section 20.8 of the Lease Agreement, “In any litigation arising
out of this Lease, the prevailing Party shall be entitled to recover reasonable attorney’s fees and
costs, including, but not limited to, fees and costs at the trial and each appellate level as well as
during any bankruptcy proceeding.”
WHEREFORE, the Plaintiff, LEXUS CAPITAL, LLC, hereby demands judgment for
direct and consequential damages against the Defendant, EASTON LAND HOLDINGS, LLC, in
an amount in excess of $50,000.00, together with interest, costs, attorney’s fees, and any and all
other relief that this Court deems just and equitable.
COUNT II: ACTION FOR FRAUDULENT INDUCEMENT
INTO A CONTRACTUAL RELATIONSHIP
(Luxus Sublease Agreement with Vanguard)
35. This is an action for damages in excess of Fifty Thousand ($50,000.00) Dollars,
exclusive of costs, interest, and attorney’s fees.
36. Luxus Capital, LLC hereby realleges and adopts herein each and every allegation
contained in paragraph 1 - 26 above.
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37. In accordance with Camena Investments and Property Management y. Cross, 791
So.2d 595, 598 (Fla. 3d DCA 2001), “... while a buyer might be expected to search the public
records before a real estate closing and a contractor might also be expected to search the public
records for flood zones prior to obtaining a permit, these types of searches are not expected to be
performed as standard procedure by a party entering into a commercial lease.”
38. The representations of Easton, as well as its willful and intentional omissions and
failure to disclose, were false and material and knew or should have known of their falsity.
39. Easton, through itself and its agent, made the material false representations, or
intentionally and willfully failed to disclose material information, in order to induce Luxus to
enter in the Sublease Agreement with Vanguard.
40. Luxus justifiably relied upon the material and false representations, or Easston’s
intentional and willful failure to disclose material information, and entered into the Sublease
Agreement with Vanguard to its detriment, which is Easton’s effort to dispossess Luxus, as well
as Vanguard, from the Premises for activity known to Easton and authorized.
41. As a result of the conduct of Easton, Luxus has sustained direct and consequential
damages.
42. As a result of the above and foregoing, Luxus has retained undersigned counsel to
represent it in the above styled cause and has agreed to pay him a reasonable attorney’s fee for
his services. In accordance with section 20.8 of the Lease Agreement, “In any litigation arising
out of this Lease, the prevailing Party shall be entitled to recover reasonable attorney’s fees and
costs, including, but not limited to, fees and costs at the trial and each appellate level as well as
during any bankruptcy proceeding.
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WHEREFORE, the Plaintiff, LEXUS CAPITAL, LLC, hereby demands judgment against
the Defendant, EASTON LAND HOLDINGS, LLC, in an amount in excess of $50,000.00,
together with interest, costs, attorney’s fees, and any and all other relief that this Court deems
just and equitable.
COUNT IIL ACTION FOR FRAUDULENT INDUCEMENT
INTO A CONTRACTUAL RELATIONSHIP
(Vanguard Sublease Agreement with Luxus)
43. This is an action for damages in excess of Fifty Thousand ($50,000.00) Dollars,
exclusive of costs, interest, and attorney’s fees.
44, Vanguard Arms, LLC hereby realleges and adopts herein each and every
allegation contained in paragraphs 1 - 26 above.
45. The representations of Easton to Vanguard, as well as its willful and intentional
omissions and failure to disclose, were false and material and knew or should have known of
their falsity.
46. Easton, through itself and its agent, made the material false representations, or
intentionally and willfully failed to disclose material information, in order to induce Vanguard to
enter into the Sublease Agreement with Luxus.
47. Vanguard justifiably relied upon the material and false representations, or
Easton’s intentional and willful failure to disclose material information, and entered into the
Sublease Agreement with Luxus, to its detriment, which is Easton’s effort to dispossess it from
the Premises for activity known to Easton and authorized.
48. Tn addition to direct damages arising from the conduct of Easton, Vanguard has
also incurred special damages consisting of lost profits, loss of business opportunity, loss of
income and other revenue, and consequential damages as a result of Easton's conduct.
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WHEREFORE, the Plaintiff, VANGUARD ARMS, LLC, hereby demands judgment
against the Defendant, EASTON LAND HOLDINGS, LLC, in an amount in excess of
$50,000.00, together with interest, costs, and any and all other relief that this Court deems just
and equitable.
COUNT IV: DECLARATORY JUDGMENT
49. Luxus Capital, LLC hereby realleges and adopts herein each and every allegation
set forth in paragraphs 1— 26 above.
50. This is an action for Declaratory Judgment in accordance with Chapter 86, Florida
Statutes.
51. Luxus is in doubt as to a number of issues relating to the Lease Agreement
entered into with Easton and the Premises, inclusive of its right of first refusal to purchase a
portion of the real property alleged in paragraph 4 above:
1. LEASE USAGE;
Sl. Luxus is in doubt as to its rights relative to the use of the Premises pursuant to the
Lease Agreement entered into with Easton, specifically the meaning of the section 4.1 usage, to
wit: “an office for the purchase and sale of collectibles, including firearms, ammunitions, and
telated items.” Furthermore, given the conduct and silence of Easton, notwithstanding the
language contained in the Lease Agreement, issue arises whether Easton has waived! or is
' In accordance with Arbogast v. Bryan, 393 So.2d 606, 607-08 (Fla. 4th DCA 1981), “Waiver is the intentional
relinquishment of a known right, or the voluntary relinquishment of a known right, or conduct which warrants an
inference of the relinquishment of a known right. It may be express or implied; and when a party waives a right
under a contract he cannot, without the consent of his adversary, reclaim it (citation omitted).”
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otherwise estopped? from asserting anything contrary to Luxus position. Certainly, Easton
ratified the conduct of Luxus.
Tl. LEASE TERMINATION:
$2. Pursuant to the Lease Agreement, contained in paragraph 4 of the amendment,
“Tenant has the right of first refusal to purchase the front portion of the lot per approximate lot
line in in [sic] Exhibit A (south portion) for $2,795,000 if they are not in default of the lease. The
right of first refusal will lasts [sic] for 18 months after lease commencement.” Luxus is also in
doubt as to the right of Easton to terminate the Lease Agreement and demand that Luxus vacate
the Premises.
$3. Easton is now actively marketing the Realty alleged in paragraph 4 above, a
portion of which Luxus maintains its right of first refusal therein, however, on April 12, 2024,
counsel for Easton provided two proposed contract offers for sale and purchase of the Realty,
along with an email stating in part, “We need to know if you want to buy, or vacate if the one
contract for [the entire undivided and un-subdivided lot of the Realty] goes through, or stay if the
vacant land contract goes through,” but there is nothing contained in the Lease Agreement
providing Easton with grounds to terminate Luxus’ Lease Agreement and demand that it vacate
the premises in the event that it, Luxus, elects not to exercise its right of first refusal and the
Realty, in full or part, is ultimately purchased by a third party.
? In accordance with Afajor League Baseball y. Morsani, 790 So.2d 1071, 1076 (Fla. 2001), “Equitable estoppel is
the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from
asserting rights which perhaps have otherwise existed, either of property or of contract, or of remedy, as against
another person, who has in good faith relied upon such conduct and has been led thereby to change his position for
the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy.
(citation omitted).”
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iil. RIGHT OF FIRST REFUSAL:
54. Pursuant to the Lease Agreement, as contained in paragraph 4 of the amendment,
“Tenant has the right of first refusal to purchase the front portion of the lot per
approximate lot line in in [sic] Exhibit A (south portion) for $2,795,000 if they are not in
default of the lease. The right of first refusal will lasts [sic] for 18 months after lease
commencement.” This right of first refusal pertains to Luxus’ rights with respect to a portion of
the Realty contained in the duly recorded instrument consisting of the Special Warranty Deed
alleged in paragraph 4 above, in conjunction with the rights provided by the Lease Agreement.
55. Herein, notwithstanding the Lease Agreement date of January 19, 2023, the
commencement date in accordance with section 1.2 is “[oJn the date the Tenant first takes
possession of the Leased Premises (the “Commencement Date”)...”, however, in accordance with
the amendment attached thereto, it is specifically reflected “Lease Start Date: March 1, 2023.”
Accordingly, the 18 month period with respect to the above alleged right of first refusal remains
in effect up until, and including, September 1, 2024.
56. Easton is now actively marketing the Realty for sale, the same Realty that Luxus
was provided with a right of first refusal for a portion thereof.
57. On April 12, 2024, counsel for Easton provided two proposed contract offers for
sale and purchase of the Realty, to wit:
A One proposed contract offer consisted of an offer by the purchaser to buy the
north portion containing the empty undeveloped lot for the sum of [Amount Redacted].
According to the Exhibit “A” attached to the written offer was an “Addendum A”, attached
hereto and made a part hereof as Exhibit “5,” specifically designating the north portion of the
Realty. The contract offer for the north portion of the Realty specifically stated, “Site to be
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divided from 5115 SR 64 E. Bradenton FL. Site will be delivered with a separate address and
parcel 1D."
B One proposed contract was for both the north and south portion of the Realty for
the sum of [Amount Redacted], which consists of the entire Realty, the north portion and the
south portion, inclusive of the Realty that Easton provided to Luxus the right of first refusal.
58. With the two proposed contract offers on April 12, 2024, counsel for Easton wrote
in an accompanying email stating, “Mr. Poznanski, Here are both contracts. We need to know if
you want to buy, or vacate if the one contract for [Amount Redacted] goes through, or stay if the
vacant land contract goes through. Steve will return Monday to discuss all issues in full.”
59. So there is no confusion, the vacant land contract is the north portion of the Realty
as evidenced by the Addendum A, Exhibit “5S” attached. And while not couched in the terms of a
triggering any right of first refusal, the contract for the north and south portion is for the entire
Realty, undivided and un-subdivided, and includes the south portion for which Luxus maintains
its right of first refusal therein.
60. Thereafter, on April 16, 2024, counsel for Easton then wrote, in part,” Looking at
the plain language of the ROFR in the addendum, it is limited to the sale of the front portion of
the lot. Neither of the 2 offers are for just the front portion that your client is leasing. One is the
entire property and one is for the rear portion. So it’s our opinion the ROFR was not triggered.”
And then again on April 17, 2023, counsel for Easton wrote, referring to Luxus’ right of first
tefusal, “it would be triggered on a third party contract to purchase just the leasehold parcel.”
ol. “Courts should not employ an interpretation of a contractual provision that would
lead to an absurd result” /amigtio v. lamiglio, 279 So.3d 736, 740 (Fla. 2d DCA 2019) and the
April 16 and 17, 2024 emails from counsel for Easton provides for an absurd result, two fold:
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A First, the offer to purchase the Realty that is for the purchase of the entire
undivided and un-subdivided lot, specifically includes the south portion of the Realty to which
Easton provided Luxus with the right of first refusal.
B Second, pursuant to the Lease Agreement itself, the Exhibit “A” attached thereto,
in connection with the right of first refusal, specifically states, “Proposed approx. Lot Line
Split South Parcel of approx. 1.01 acres would be included only in the option to purchase.”
The Exhibit “A” to the Lease Agreement specifically designates the entirety of the south portion
of the Realty, not just the “front portion” of the actual leasehold premises.
62. Given the conduct of Eston, Luxus is also in doubt as to its rights, without
exercising it, with respect to preserving its right of first refusal through September 1, 2024.
Based upon the foregoing, while not exercising it, Luxus seeks to preserve “[t]he right of first
refusal to purchase the front portion of the lot per approximate lot line in in [sic] Exhibit A
(south portion) for $2,795,000 if they are not in default of the lease. The right of first refusal will
lasts [sic] for 18 months after lease commencement.” Again, Luxus, while not exercising it,
seeks to preserve its right of first refusal through September 1, 2024; nothing contained within
the Lease Agreement requiring Luxus to elect a time sooner even in the event that Easton brings
a prospective purchaser, There is nothing contained in the Lease Agreement requiring a specific
period of time that Luxus has to exercise its right of first refusal in the event Easton receives a
valid, executed contract for sale and purchase encompassing the portion of the Realty for which
Luxus maintains a right of first refusal.
63. The purpose of a declaratory judgment is to afford parties relief from insecurity
and uncertainty with respect to rights, status, and other equitable or legal remedies. Pursuant to
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section 86.021, Florida Statutes, “Any person claiming to be interested or who may be in doubt
about his or her rights under a deed, will, contract, or other article, memorandum, or instrument
in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or
any regulation made under statutory authority, or by municipal ordinance, contract, deed, will,
franchise, or other article, memorandum, or instrument in writing may have determined any
question of construction or validity arising under such statute, regulation, municipal ordinance,
contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any
part thereof, and obtain a declaration of rights, status, or other equitable or legal relations
thereunder.”
64. The allegations contained above show and evidence that there is a bona fide,
actual, present practical need for the declaration sought herein; that the facts and circumstances
alleged deal with a present, ascertained state of facts or present controversy as to a state of facts
and that the rights of Plaintiff are dependent upon the facts or the law applicable to said facts.
65. The parties hereto, and the claim asserted, create an actual, present, adverse and
antagonistic interest as to use of the Premises contained in the Lease Agreement.
66. Tn accordance with section 86.061, Florida Statutes, “Further relief based on a
declaratory judgment may be granted when necessary or proper. The application therefor shall be
by motion to the court having jurisdiction to grant relief. If the application is sufficient, the court
shall require any adverse party whose rights have been adjudicated by the declaratory judgment
to show cause on reasonable notice, why further relief should not be granted forthwith.”
67. All parties to this action are before this Court.
68. As a result of the above and foregoing, Luxus has retained undersigned counsel to
represent it in the above styled cause and has agreed to pay him a reasonable attomey’s fee for
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his services. In accordance with section 20.8 of the Lease Agreement, “In any litigation arising
out of this Lease, the prevailing Party shall be entitled to recover reasonable attorney’s fees and
costs, including, but not limited to, fees and costs at the trial and each appellate level as well as
during any bankruptcy proceeding.” Luxus is also entitled to recover its costs of litigation in
accordance with section 86.081, Florida Statutes.
WHEREFORE, the Plaintiff, LUXUS CAPITAL, LLC, demands declaratory judgment as
follows:
A Notwithstanding any Declaration of Covenants to the contrary, a determination
that, LUXUS CAPITAL, LLC, under the alleged Lease Agreement entered into with the
Defendant, EASTON LAND HOLDINGS, LLC, was granted the right to use the leasehold
Premises for retail sale of handguns, rifles, shotguns, ammunition and other accessories to the
public;
B A determination that the sublease by LUXUS CAPITAL, LLC to Vanguard Anns,
LLC was authorized and consented to by the Defendant, EASTON LAND HOLDINGS, LLC;
Cc A determination that there is nothing contained in the Lease Agreement that
provides for the Defendant, EASTON LAND HOLDINGS, LLC, to terminate the Lease
Agreement that it entered into with LUXUS CAPITAL, LLC and demand that Luxus Capital,
LLC vacate the premises in the event that it does not elect to exercise its right of first refusal and
the Realty, in full or part, is ultimately purchased by a third party.
D A determination that, while not exercising it, preserved unto Plaintiff,
LUXUS CAPITAL, LLLC, is its “[rJight of first refusal to purchase the front portion of the lot
per approximate lot line in in [sic] Exhibit A (south portion) through through September 1, 2024
and that the Defendant, EASTON LAND HOLDINGS, LLC, may not force upon Plaintiff a time
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sooner even in the event that Easton Land Holdings, LLC brings a prospective purchaser since
there is nothing contained in the Lease Agreement requiring a specific period of time that Luxus
Capital, LLC has to exercise its right of first refusal in the event Easton Land Holdings, LLC
receives a valid, executed contract for sale and purchase encompassing the portion of the Realty
for which Luxus Capital, LLC maintains a right of first refusal.
E Awarding to Plaintiff attorney’s fees and costs in accordance with section. 20.8 of
the Lease Agreement, as well as costs pursuant to 86.081, Florida Statutes; and
F. Awarding any and all other relief that this Court deems just and equitable.
e_ Plaintiff further demands an award of attorney’s fees, costs, and any and all other relief that
this Court deems just and equitable.
DEMAND FOR JURY TRIAL
Plaintiff, LUXUS CAPITAL, LLC, demands trial by jury on all issues triable as a right
by jury.
I HEREBY CERTIFY that a true and correct copy of the foregoing was served by
Electronic Mail, through the Florida Efiling Portal in accordance with Rule 2.516, Fla. R. Jud.
Admin, upon: W. Nelon Kirkland, Esquire, Dye Harrison Knowles Kirkland Pratt & Depaola,
PLLC, P.O. Box 400, Bradenton, Florida 34206 on this 17th day of April, 2024.
HOWARD POZNANSKI, ESQUIRE
Attorney for Plaintiffs
Florida Bar No. 0814946
Email: howard wpoznanski@bellsouth.
net
P.O. Box 970094
Coconut Creek, Florida 33097
Tel: (561) 417-9294
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Preview
Filing # 196421210 E-Filed 04/17/2024 03:53:09 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR MANATEE COUNTY, FLORIDA LUXUS CAPITAL, LLC, CASE NO.: 2024-CA-000366AX a Florida limited liability company, and VANGUARD ARMS, LLC, a Florida limited liability company, Plaintiffs, VS. EASTON LAND HOLDINGS, LLC, a Florida limited liability company, Defendant. / AMENDED MPLAT T (Contains Demand for Jury Trial) Plaintiff, LUXUS CAPITAL, LLC, a Florida limited liability company, and VANGUARD ARMS, LLC, sues the Defendant, EASTON LAND HOLDINGS, LLC, and alleges as follows: GENERAL ALLEGATIONS AND BACKGROUND 1 Plaintiff, LUXUS CAPITAL, LLC (“Luxus”), at all material times herein, was and is a Florida limited liability company with its principal place of business and headquarters in Bradenton, Manatee County, Florida. 2. Plaintiff, VANGUARD ARMS, LLC, (“Vanguard”), at all material times herein, was and is a Florida limited liability company with its principal place of business and headquarters in Bradenton, Manatee County, Florida. 3 Defendant, EASTON LAND HOLDINGS, LLC (“Easton”) is a Florida limited liability company with its principal place of business in Tampa, Hillsborough County, Florida. "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT At all material times herein, Mariano Cibran (“Mr. Cibran”) was the manager or managing member of Easton. 4 Through a Special Warranty Deed recorded on April 11, 2022, in the Manatee County Public Records, Instrument Number 202241048825, Easton is the owner of certain real estate in Manatee County, Florida, that is legally described as Lot 1, 64 Center East, A Commercial Subdivision, According to the Map or Plat thereof, as Recorded in Plat Book 42, Pages 120 through 123, Inclusive, of the Public Records of Manatee County, Florida, Parcel Identification Number 11156.1035/9, and having a street address of 5115 East State Road 64, Bradenton, Florida 34208, which is undivided and un-subdivided realty consisting of a north portion containing an empty undeveloped lot and a south portion that has a commercial structure thereon (collectively the “Realty”). 5 On or about January 19, 2023, Luxus entered into a twelve (12) month Commercial Lease Agreement with Easton with respect to the south portion of the Realty, a copy of the Lease Agreement attached hereto and made a part hereof as Exhibit “1” (the “Lease Agreement”). 6 Entry into the Lease Agreement between Luxus and Easton was predicated upon Luxus using the Premises for the sale of firearms and ammunition. As contained in section 1.3 of the Lease Agreement, commencement of the Lease Agreement was to occur “when ATF has given approval.” Furthermore, pursuant to section 4.1 of the Lease Agreement, the use of the Premises was and is for “an office for the purchase and sale of collectibles, including firearms, ammunitions, and related items.” Additionally, the Lease Agreement addendum, titled “Commercial Lease Addendum”, as contained in sections 1, 5, and 8 evidence the requirement of ATF approval. "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT 7 What made the Premises of interest to Luxus, which was a material inducement for it to enter into the Lease Agreement, was the fact that it had a bank vault. Prior to entering in the Lease Agreement, Luxus, through its representatives, had discussions with Mr. Cibran, Easton’s representative, regarding the removal of the pre-existing safe deposit boxes in order to accommodate the storage of a voluminous inventory of firearms and ammunition. 8 Easton, through Mr. Cibran, even interacted with Alcohol Tobacco & Firearms (“ATF”) with respect to Luxus usage of the Premises 9 The Lease Agreement, section | .2(a), also provided for “two additional terms of five (5) years,” In accordance with section 1.2(a) of the Lease Agreement, “If Tenant exercises the option period, the terms and conditions of that renewal period shall be the terms and conditions of this Lease. In order to renew, Tenant shall give written notice of such renewal to Landlord Ninety (90) days prior to the expiration of the initial terms hereunder and each successive optional term.” 10. Nothing contained within the Lease Agreement precluded or otherwise prevented Luxus’ use of the Premises from being open to the public. 11. Pursuant to the Lease Agreement, Luxus was not precluded from engaging in the sale of firearms and ammunition. 12. On or about February 23, 2023, Luxus obtained ATF approval, as required by the Lease Agreement, and provided evidence of that notice to Easton. 13. Atall material times, Vanguard was a business involved in the sale of firearms and ammunition and other accessories to the public. Within days of entry into the Lease Agreement, on January 24, 2023, Luxus wrote to Easton and its real estate agent the following: "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT Pursuant to Adain’s instructions, this will serve to let you know that Luxus Capital, LLC would like to sublease a portion of its premises to Vanguard Arms, LLC. Vanguard Amns, LLC is known to Luxus Capital, LLC, and is its current neighbor (prior to our location to 5115 E. State Road 64). We also believe Vanguard Arms, LLC is known to you. Is there any else you would like from either Luxus Capital, LLC or Vanguard Arms, LLC in order to consent to this sublease? Please let us know. Thanks. 14. Tn response to Luxus’ January 24, 2023 written notice, the same day, Easton by Mr. Cibran, thereafter responded back in writing stating, “Nothing else. Looks good.” 15. Accordingly, on January 26, 2023, Vanguard commenced its application for its amended Federal Firearms License (“FFL”) using the Premises as its place of business, a copy of the application for its amended FFL attached hereto and made a part hereof as Exhibit “2.” 16. Five days later, on January 31, 2023, following Easton’s authorization and consent for Luxus to sublet a portion of the leasehold Premises to Vanguard, Luxus entered into a formal Sublease and Office Sharing Agreement (“Sublease Agreement”) with Vanguard with tespect to the Premises, a copy of which is attached hereto and made a part hereof as Exhibit “3.” 17. Easton reviewed Vanguard’s application for an amended FFL, but if it did not, it should have. Vanguard’s application for its amended FFLwas available to Luxus for review at all times. Vanguard’s application for its amended FFL clearly reflects that Vanguard’s business would be open to the general public, the hours of operation, and the nature of the Premises. 18. Giving rise to the inference that Luxus reviewed Vanguard’s application for its amended FFL, and if it did not should have, is because on February 6, 2023, Mr. Cibran (who appears to have signed or acknowledged in some representative capacity for Magnolia Dayschool) wrote the following email to ATF: "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT Hey Chrstine, I’m aware of the sublease to Vanguard. I’m okay with this. Mariano Cibran Magnolia Dayschool Chrstine A. Hight, a Senior Industry Operations Investigator for ATF as aforesaid, thereafter replied back on February 7, 2023: Thank you for responding! 19. Approximately three weeks later, on or about March 1, 2023, Vanguard received its FFL license, for the Premises location, that is designated for a person or entity intending to engage in a business involving the sale, as well as the importation, of firearms and ammunition. 20. Luxus’ Sublease Agreement with Vanguard provides a substantial financial benefit to Luxus, including that of a recoupment of rent being paid to Easton. And as a result of the financial benefit it is receiving from Vanguard, Luxus exercised, on August 11, 2023, the initial five (5) year option to renew the Lease Agreement. 21. On August 11, 2023, Luxus provided notice to Easton that it was exercising “its option to renew the Lease Agreement for an additional term of five (5) years subsequent to the initial term of the Lease Agreement.” In response, together with Luxus’ query “Will this notice suffice for Easton’s purposes?” Easton responded back on the same August 11, 2023 stating, “That works.” 22. At the time Luxus entered into the Lease Agreement with Easton, at the time Easton consented and authorized Luxus’ Sublease Agreement with Vanguard, and at the time Luxus exercised its option to renew the Lease Agreement for another 5 years, Easton was aware of the nature of the businesses being conducted both by Luxus and Vanguard. In fact, on January 31, 2024, Easton, through Mr. Cibran signing or acknowledging in some representative capacity "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT for Magnolia Dayschool, wrote the following to Vanguard in an email: Hey Nick, T was reaching out because we have some activity going on with the site and we wanted to discuss some options with you. There are two groups that are interested in purchasing the sites. Both are very large national companies. One group is only interested in the rear property and the other is interested in the whole site. Since you have a right of first refusal that extends for the first 18 months after the lease I wanted to check in with you to see if you had any interest in buying the site. If you did, we would formalize with a contract, deposit, inspection period, closing date, etc. If you do not want to exercise that right then I would tum to the offers. The group that would like to purchase the rare lot is a childcare company. They do not love the idea of a gun store so close to a school. I’ve been speaking with this group for a few months now as they've been looking at my other sites. What I gather from them, is that they will try to legally remove you from the site. Since they have in house counsel it won’t cost them anything to pursue this avenue. J’m not an attorney so I don’t know how they’ do it, but they seemed confident it could be done. The other group wants the whole parcel, but you are currently under a lease. I’m sure they can wait out the lease as they would need to work on the zoning and other things for the property. They have approached me and offered $25,000 for you all to move from the site. Basically for moving expenses. Let me know your thoughts and we can figure something out. Mariano Cibran Magnolia Dayschool 23. What followed is that on February 16, 2024, notwithstanding Easton’s knowledge, consent, and authorization of Vanguard operating in the Premises in the manner that it was and is, Easton served upon Luxus a 20 day notice, Exhibit “4” attached hereto, stating in part, ...Tenant is not permitted under the lease to use the property as a gun shop. In addition, the declaration of covenants for the office park where the property is located, section 6.1(m)... specifically prohibits gun shops in the subdivision. This use must immediately stop. The Owner’s Association has been contacted and they have stated no permission was obtained for gun shop use. Accordingly, said use must stop immediately. "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT 24. In addition to being the manager or managing member of Easton, Mr. Cibran also appears to have an interest in Magnolia Dayschool. At all material times herein, Mr. Cibran was ontemporaneously marketing the adjacent lot to the Premises, also owned by Easton, for use as children’s day school. It appears that the above-alleged February 16, 2024, notice provided by Easton is nothing more than a subterfuge and pretext to remove and dispossess Luxus and Vanguard from the Premises, which is further evidenced from the January 31, 2024, above-alleged email provided by Mr. Cibran to Vanguard. The adjacent lot is less than one thousand feet away from the Premises that Easton leased to Luxus notwithstanding that Luxus and Vanguard at all material times was and is involved in the sale of firearms and ammunition. 25. At the time Luxus entered into the Lease Agreement with Easton, at the time Easton consented and authorized Luxus’ Sublease Agreement with Vanguard, and at the time Luxus exercised its option to renew the Lease Agreement for another 5 years, and through January 2024, Easton was aware of the nature of the businesses being conducted both by Luxus and Vanguard, however, at no point in time prior to the February 16, 2024 notice had Easton > previously disclosed any prohibition within any Declaration of Covenants with respect to Luxus and Vanguard’s use of the Premises. Even the above-alleged January 31, 2024, sent approximately two weeks prior to the February 16, 2024 notice, fails to assert that the business being conducted in the Premises by Luxus and Vanguard was violating any lease provision or Declaration of Covenants. 26. In fact, on January 23, 2023, on or about the time Luxus was discussing Vanguard’s Sublease Agreement with the Easton, Easton’s agent, in an email to Luxus, stated, in bolded capital letters, the following: "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT PER MARIANO HE HAS NO WRITTEN DEC PAGES FOR THE HOA, THIS IS ACTUALLY ONLY AN HOA THAT MANAGES THE INTERIOR PARK ROADS, COMMON LIGHTS ON ROADS AND ANY CONDO PROPERTIES IN THIS PARK. OUR BUILDING HAS ABSOLUTELY NO ACKNOWLEDGEMENT OF THE HOA. THE ONLY HIGHER POWER THAT CAN DICTATE USE OF OUR BUILDING AND BUSINESS IS THE CITY OF BRADENTON. NOW IF YOU DECIDE TO SEPARATE A PROPERTY AND MAKE IT INTO TWO OR MORE PARCELS / BUILD A BRAND NEW STRUCTURE THEN THE HOA WOULD NEED TO APPROVE THAT. FYI MOST LIKELY PETER IS LEASING A FLEX SPACE IN A PARK AND THAT PARK HAS ROADS AND COMMON AREAS MANAGED BY THE HOA. 90% OF PROPERTIES HAVE SOME SORT OF HOA MANAGING THE COMMON AREAS, THEY CANNOT DICTATE THE USE OF A BUILDING UNLESS IT'S A CONNECTED CONDO, IF YOU GAINED YOUR APPROVAL WITH THE CITY OF BRADENTON THEN YOU ARE FINE. COUNT I: ACTION FOR FRAUDULENT INDUCEMENT. INTO A CONTRACTUAL RELATIONSHIP {Luxus Lease Agreement with Easton) 27 This is an action for damages in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of costs, interest, and attorney’s fees. 28. Luxus Capital, LLC hereby realleges and adopts herein each and every allegation contained in paragraphs | - 26 above. 29. Tn accordance with Camena Investments and Property Management v. Cross, 791 So.2d 595, 598 (Fla. 3d DCA 2001), “... while a buyer might be expected to search the public tecords before a real estate closing and a contractor might also be expected to search the public records for flood zones prior to obtaining a permit, these types of searches are not expected to be performed as standard procedure by a party entering into a commercial lease.” 30. The representations of Easton, as well as its willful and intentional omissions and failure to disclose, were false and material and knew or should have known of their falsity. 31. Easton, through itself and its agent, made the material false representations, or intentionally and willfully failed to disclose material information, in order to induce Luxus to "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT enter in the alleged Lease Agreement, and thereafter exercise its five (5) year option renewal. 32. Luxus justifiably relied upon the material and false representations, or Easton’s intentional and willful failure to disclose material information, and entered into the Lease Agreement, and thereafter exercised its five (5) year option renewal, to its detriment, which is Easton’s effort to dispossess it from the Premises for activity known to Easton and authorized. 33. As a result of the conduct of Easton, Luxus has sustained direct and consequential damages. 34. As a result of the above and foregoing, Easton has retained undersigned counsel to represent it in the above styled cause and has agreed to pay him a reasonable attorney’s fee for his services. In accordance with section 20.8 of the Lease Agreement, “In any litigation arising out of this Lease, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs, including, but not limited to, fees and costs at the trial and each appellate level as well as during any bankruptcy proceeding.” WHEREFORE, the Plaintiff, LEXUS CAPITAL, LLC, hereby demands judgment for direct and consequential damages against the Defendant, EASTON LAND HOLDINGS, LLC, in an amount in excess of $50,000.00, together with interest, costs, attorney’s fees, and any and all other relief that this Court deems just and equitable. COUNT II: ACTION FOR FRAUDULENT INDUCEMENT INTO A CONTRACTUAL RELATIONSHIP (Luxus Sublease Agreement with Vanguard) 35. This is an action for damages in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of costs, interest, and attorney’s fees. 36. Luxus Capital, LLC hereby realleges and adopts herein each and every allegation contained in paragraph 1 - 26 above. "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT 37. In accordance with Camena Investments and Property Management y. Cross, 791 So.2d 595, 598 (Fla. 3d DCA 2001), “... while a buyer might be expected to search the public records before a real estate closing and a contractor might also be expected to search the public records for flood zones prior to obtaining a permit, these types of searches are not expected to be performed as standard procedure by a party entering into a commercial lease.” 38. The representations of Easton, as well as its willful and intentional omissions and failure to disclose, were false and material and knew or should have known of their falsity. 39. Easton, through itself and its agent, made the material false representations, or intentionally and willfully failed to disclose material information, in order to induce Luxus to enter in the Sublease Agreement with Vanguard. 40. Luxus justifiably relied upon the material and false representations, or Easston’s intentional and willful failure to disclose material information, and entered into the Sublease Agreement with Vanguard to its detriment, which is Easton’s effort to dispossess Luxus, as well as Vanguard, from the Premises for activity known to Easton and authorized. 41. As a result of the conduct of Easton, Luxus has sustained direct and consequential damages. 42. As a result of the above and foregoing, Luxus has retained undersigned counsel to represent it in the above styled cause and has agreed to pay him a reasonable attorney’s fee for his services. In accordance with section 20.8 of the Lease Agreement, “In any litigation arising out of this Lease, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs, including, but not limited to, fees and costs at the trial and each appellate level as well as during any bankruptcy proceeding. 10 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT WHEREFORE, the Plaintiff, LEXUS CAPITAL, LLC, hereby demands judgment against the Defendant, EASTON LAND HOLDINGS, LLC, in an amount in excess of $50,000.00, together with interest, costs, attorney’s fees, and any and all other relief that this Court deems just and equitable. COUNT IIL ACTION FOR FRAUDULENT INDUCEMENT INTO A CONTRACTUAL RELATIONSHIP (Vanguard Sublease Agreement with Luxus) 43. This is an action for damages in excess of Fifty Thousand ($50,000.00) Dollars, exclusive of costs, interest, and attorney’s fees. 44, Vanguard Arms, LLC hereby realleges and adopts herein each and every allegation contained in paragraphs 1 - 26 above. 45. The representations of Easton to Vanguard, as well as its willful and intentional omissions and failure to disclose, were false and material and knew or should have known of their falsity. 46. Easton, through itself and its agent, made the material false representations, or intentionally and willfully failed to disclose material information, in order to induce Vanguard to enter into the Sublease Agreement with Luxus. 47. Vanguard justifiably relied upon the material and false representations, or Easton’s intentional and willful failure to disclose material information, and entered into the Sublease Agreement with Luxus, to its detriment, which is Easton’s effort to dispossess it from the Premises for activity known to Easton and authorized. 48. Tn addition to direct damages arising from the conduct of Easton, Vanguard has also incurred special damages consisting of lost profits, loss of business opportunity, loss of income and other revenue, and consequential damages as a result of Easton's conduct. 11 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT WHEREFORE, the Plaintiff, VANGUARD ARMS, LLC, hereby demands judgment against the Defendant, EASTON LAND HOLDINGS, LLC, in an amount in excess of $50,000.00, together with interest, costs, and any and all other relief that this Court deems just and equitable. COUNT IV: DECLARATORY JUDGMENT 49. Luxus Capital, LLC hereby realleges and adopts herein each and every allegation set forth in paragraphs 1— 26 above. 50. This is an action for Declaratory Judgment in accordance with Chapter 86, Florida Statutes. 51. Luxus is in doubt as to a number of issues relating to the Lease Agreement entered into with Easton and the Premises, inclusive of its right of first refusal to purchase a portion of the real property alleged in paragraph 4 above: 1. LEASE USAGE; Sl. Luxus is in doubt as to its rights relative to the use of the Premises pursuant to the Lease Agreement entered into with Easton, specifically the meaning of the section 4.1 usage, to wit: “an office for the purchase and sale of collectibles, including firearms, ammunitions, and telated items.” Furthermore, given the conduct and silence of Easton, notwithstanding the language contained in the Lease Agreement, issue arises whether Easton has waived! or is ' In accordance with Arbogast v. Bryan, 393 So.2d 606, 607-08 (Fla. 4th DCA 1981), “Waiver is the intentional relinquishment of a known right, or the voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right. It may be express or implied; and when a party waives a right under a contract he cannot, without the consent of his adversary, reclaim it (citation omitted).” 12 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT otherwise estopped? from asserting anything contrary to Luxus position. Certainly, Easton ratified the conduct of Luxus. Tl. LEASE TERMINATION: $2. Pursuant to the Lease Agreement, contained in paragraph 4 of the amendment, “Tenant has the right of first refusal to purchase the front portion of the lot per approximate lot line in in [sic] Exhibit A (south portion) for $2,795,000 if they are not in default of the lease. The right of first refusal will lasts [sic] for 18 months after lease commencement.” Luxus is also in doubt as to the right of Easton to terminate the Lease Agreement and demand that Luxus vacate the Premises. $3. Easton is now actively marketing the Realty alleged in paragraph 4 above, a portion of which Luxus maintains its right of first refusal therein, however, on April 12, 2024, counsel for Easton provided two proposed contract offers for sale and purchase of the Realty, along with an email stating in part, “We need to know if you want to buy, or vacate if the one contract for [the entire undivided and un-subdivided lot of the Realty] goes through, or stay if the vacant land contract goes through,” but there is nothing contained in the Lease Agreement providing Easton with grounds to terminate Luxus’ Lease Agreement and demand that it vacate the premises in the event that it, Luxus, elects not to exercise its right of first refusal and the Realty, in full or part, is ultimately purchased by a third party. ? In accordance with Afajor League Baseball y. Morsani, 790 So.2d 1071, 1076 (Fla. 2001), “Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed, either of property or of contract, or of remedy, as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy. (citation omitted).” 13 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT iil. RIGHT OF FIRST REFUSAL: 54. Pursuant to the Lease Agreement, as contained in paragraph 4 of the amendment, “Tenant has the right of first refusal to purchase the front portion of the lot per approximate lot line in in [sic] Exhibit A (south portion) for $2,795,000 if they are not in default of the lease. The right of first refusal will lasts [sic] for 18 months after lease commencement.” This right of first refusal pertains to Luxus’ rights with respect to a portion of the Realty contained in the duly recorded instrument consisting of the Special Warranty Deed alleged in paragraph 4 above, in conjunction with the rights provided by the Lease Agreement. 55. Herein, notwithstanding the Lease Agreement date of January 19, 2023, the commencement date in accordance with section 1.2 is “[oJn the date the Tenant first takes possession of the Leased Premises (the “Commencement Date”)...”, however, in accordance with the amendment attached thereto, it is specifically reflected “Lease Start Date: March 1, 2023.” Accordingly, the 18 month period with respect to the above alleged right of first refusal remains in effect up until, and including, September 1, 2024. 56. Easton is now actively marketing the Realty for sale, the same Realty that Luxus was provided with a right of first refusal for a portion thereof. 57. On April 12, 2024, counsel for Easton provided two proposed contract offers for sale and purchase of the Realty, to wit: A One proposed contract offer consisted of an offer by the purchaser to buy the north portion containing the empty undeveloped lot for the sum of [Amount Redacted]. According to the Exhibit “A” attached to the written offer was an “Addendum A”, attached hereto and made a part hereof as Exhibit “5,” specifically designating the north portion of the Realty. The contract offer for the north portion of the Realty specifically stated, “Site to be 14 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT divided from 5115 SR 64 E. Bradenton FL. Site will be delivered with a separate address and parcel 1D." B One proposed contract was for both the north and south portion of the Realty for the sum of [Amount Redacted], which consists of the entire Realty, the north portion and the south portion, inclusive of the Realty that Easton provided to Luxus the right of first refusal. 58. With the two proposed contract offers on April 12, 2024, counsel for Easton wrote in an accompanying email stating, “Mr. Poznanski, Here are both contracts. We need to know if you want to buy, or vacate if the one contract for [Amount Redacted] goes through, or stay if the vacant land contract goes through. Steve will return Monday to discuss all issues in full.” 59. So there is no confusion, the vacant land contract is the north portion of the Realty as evidenced by the Addendum A, Exhibit “5S” attached. And while not couched in the terms of a triggering any right of first refusal, the contract for the north and south portion is for the entire Realty, undivided and un-subdivided, and includes the south portion for which Luxus maintains its right of first refusal therein. 60. Thereafter, on April 16, 2024, counsel for Easton then wrote, in part,” Looking at the plain language of the ROFR in the addendum, it is limited to the sale of the front portion of the lot. Neither of the 2 offers are for just the front portion that your client is leasing. One is the entire property and one is for the rear portion. So it’s our opinion the ROFR was not triggered.” And then again on April 17, 2023, counsel for Easton wrote, referring to Luxus’ right of first tefusal, “it would be triggered on a third party contract to purchase just the leasehold parcel.” ol. “Courts should not employ an interpretation of a contractual provision that would lead to an absurd result” /amigtio v. lamiglio, 279 So.3d 736, 740 (Fla. 2d DCA 2019) and the April 16 and 17, 2024 emails from counsel for Easton provides for an absurd result, two fold: 15 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT A First, the offer to purchase the Realty that is for the purchase of the entire undivided and un-subdivided lot, specifically includes the south portion of the Realty to which Easton provided Luxus with the right of first refusal. B Second, pursuant to the Lease Agreement itself, the Exhibit “A” attached thereto, in connection with the right of first refusal, specifically states, “Proposed approx. Lot Line Split South Parcel of approx. 1.01 acres would be included only in the option to purchase.” The Exhibit “A” to the Lease Agreement specifically designates the entirety of the south portion of the Realty, not just the “front portion” of the actual leasehold premises. 62. Given the conduct of Eston, Luxus is also in doubt as to its rights, without exercising it, with respect to preserving its right of first refusal through September 1, 2024. Based upon the foregoing, while not exercising it, Luxus seeks to preserve “[t]he right of first refusal to purchase the front portion of the lot per approximate lot line in in [sic] Exhibit A (south portion) for $2,795,000 if they are not in default of the lease. The right of first refusal will lasts [sic] for 18 months after lease commencement.” Again, Luxus, while not exercising it, seeks to preserve its right of first refusal through September 1, 2024; nothing contained within the Lease Agreement requiring Luxus to elect a time sooner even in the event that Easton brings a prospective purchaser, There is nothing contained in the Lease Agreement requiring a specific period of time that Luxus has to exercise its right of first refusal in the event Easton receives a valid, executed contract for sale and purchase encompassing the portion of the Realty for which Luxus maintains a right of first refusal. 63. The purpose of a declaratory judgment is to afford parties relief from insecurity and uncertainty with respect to rights, status, and other equitable or legal remedies. Pursuant to 16 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT section 86.021, Florida Statutes, “Any person claiming to be interested or who may be in doubt about his or her rights under a deed, will, contract, or other article, memorandum, or instrument in writing or whose rights, status, or other equitable or legal relations are affected by a statute, or any regulation made under statutory authority, or by municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.” 64. The allegations contained above show and evidence that there is a bona fide, actual, present practical need for the declaration sought herein; that the facts and circumstances alleged deal with a present, ascertained state of facts or present controversy as to a state of facts and that the rights of Plaintiff are dependent upon the facts or the law applicable to said facts. 65. The parties hereto, and the claim asserted, create an actual, present, adverse and antagonistic interest as to use of the Premises contained in the Lease Agreement. 66. Tn accordance with section 86.061, Florida Statutes, “Further relief based on a declaratory judgment may be granted when necessary or proper. The application therefor shall be by motion to the court having jurisdiction to grant relief. If the application is sufficient, the court shall require any adverse party whose rights have been adjudicated by the declaratory judgment to show cause on reasonable notice, why further relief should not be granted forthwith.” 67. All parties to this action are before this Court. 68. As a result of the above and foregoing, Luxus has retained undersigned counsel to represent it in the above styled cause and has agreed to pay him a reasonable attomey’s fee for 17 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT his services. In accordance with section 20.8 of the Lease Agreement, “In any litigation arising out of this Lease, the prevailing Party shall be entitled to recover reasonable attorney’s fees and costs, including, but not limited to, fees and costs at the trial and each appellate level as well as during any bankruptcy proceeding.” Luxus is also entitled to recover its costs of litigation in accordance with section 86.081, Florida Statutes. WHEREFORE, the Plaintiff, LUXUS CAPITAL, LLC, demands declaratory judgment as follows: A Notwithstanding any Declaration of Covenants to the contrary, a determination that, LUXUS CAPITAL, LLC, under the alleged Lease Agreement entered into with the Defendant, EASTON LAND HOLDINGS, LLC, was granted the right to use the leasehold Premises for retail sale of handguns, rifles, shotguns, ammunition and other accessories to the public; B A determination that the sublease by LUXUS CAPITAL, LLC to Vanguard Anns, LLC was authorized and consented to by the Defendant, EASTON LAND HOLDINGS, LLC; Cc A determination that there is nothing contained in the Lease Agreement that provides for the Defendant, EASTON LAND HOLDINGS, LLC, to terminate the Lease Agreement that it entered into with LUXUS CAPITAL, LLC and demand that Luxus Capital, LLC vacate the premises in the event that it does not elect to exercise its right of first refusal and the Realty, in full or part, is ultimately purchased by a third party. D A determination that, while not exercising it, preserved unto Plaintiff, LUXUS CAPITAL, LLLC, is its “[rJight of first refusal to purchase the front portion of the lot per approximate lot line in in [sic] Exhibit A (south portion) through through September 1, 2024 and that the Defendant, EASTON LAND HOLDINGS, LLC, may not force upon Plaintiff a time 18 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT sooner even in the event that Easton Land Holdings, LLC brings a prospective purchaser since there is nothing contained in the Lease Agreement requiring a specific period of time that Luxus Capital, LLC has to exercise its right of first refusal in the event Easton Land Holdings, LLC receives a valid, executed contract for sale and purchase encompassing the portion of the Realty for which Luxus Capital, LLC maintains a right of first refusal. E Awarding to Plaintiff attorney’s fees and costs in accordance with section. 20.8 of the Lease Agreement, as well as costs pursuant to 86.081, Florida Statutes; and F. Awarding any and all other relief that this Court deems just and equitable. e_ Plaintiff further demands an award of attorney’s fees, costs, and any and all other relief that this Court deems just and equitable. DEMAND FOR JURY TRIAL Plaintiff, LUXUS CAPITAL, LLC, demands trial by jury on all issues triable as a right by jury. I HEREBY CERTIFY that a true and correct copy of the foregoing was served by Electronic Mail, through the Florida Efiling Portal in accordance with Rule 2.516, Fla. R. Jud. Admin, upon: W. Nelon Kirkland, Esquire, Dye Harrison Knowles Kirkland Pratt & Depaola, PLLC, P.O. Box 400, Bradenton, Florida 34206 on this 17th day of April, 2024. HOWARD POZNANSKI, ESQUIRE Attorney for Plaintiffs Florida Bar No. 0814946 Email: howard wpoznanski@bellsouth. net P.O. Box 970094 Coconut Creek, Florida 33097 Tel: (561) 417-9294 19 "2024CA000366AX" 196421210 Filed at Manatee County Clerk 04/17/2024 03:53:08 PM EDT