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COMMONWEALTH OF massaceusetrs
WORCESTER, SS. SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO, 1885-CV01028__1)
BRADLEY SMALL, .
AUG - 2 2018
0s can
]
Plaintiff J
]
]
] ANSWER AND COUNTERCL
]
]
]
Vv.
FLOWRITE VALVE SERVICE, INC. and
MICHAEL J. HUNCHARD,
Defendants
ed
Now come the Defendants Flowrite Valve Service, Inc. (hereinafter, “Flowrite”) and
Michael J. Hunchard (hereinafter, “Hunchard”) and answer the averments in the Complaint:
PARTIES Lj +
1. Admitted.
2. Admitted.
3. Admitted.
FACTS
4. Denied. The Plaintiff (hereinafter “Smali”) and Hunchard were never formal business
“partners”. Flowrite was founded in 1992 and incorporated in 1994, by Hunchard alone.
Small began working at Flowrite in 1996. At all relevant times, Hunchard
was the majority shareholder, sole statutory officer and co-Director of Flowrite. At all
relevant times, Small was a minority shareholder and co-Ditecto! of Flowrite. Both
Hunchard and Small were employees of Flowrite. |
-l-Denied that Hunchard and Small were at any time “co-owners” of Flowrite stock. At all
relevant times, Hunchard owned more than 50% of Flowrite stock in his own name. At all
relevant times, Small owned less than 50% of Flowrite stock in his own name. There were
no other Flowrite shareholders.
Admitted.
Admitted.
Admitted that Flowrite had a Directors‘ Meeting in February 2014, and denied as to every
other allegation. The Minutes of that Meeting, signed by Hunchard and Small, state
clearly that Hunchard and Small had reached an “agreement in principle” that upon
payment by Small to Hunchard of $500,000.00 in not more than ten years, Hunchard would
convey to Small shares of his common stock sufficient to give Small “a controlling (51%)
interest” in the Corporation.” The agreement in principle was conditioned upon the parties
negotiating a final agreement as to all terms and presenting it to the Corporation for
approval. In February 2015, Small signed Minutes of a Directors’ Meeting stating that
“Michael J. Hunchard and Bradley B. Small were still in the process of negotiating a stock
transfer agreement which would give Bradley B. Small a controlling (51%) interest in the
Corporation. When the Agreement has been finalized, it will be presented to the Officers
and Directors of the Corporation for discussion and approval.” No written final agreement
was ever reached, signed or presented to the Corporation.
-2-10.
11.
12.
13.
14.
Admitted, but the price was agreed to “in principle”, subject to the parties reaching a
final agreement as to all terms of the conveyance, which never lr
Denied that there was a final agreement. In the alternative, if there was an agreement, its
terms were clear and agreed to -- Hunchard would convey 2% of his stock to Small
(sufficient to give Small a controlling 51% interest), upon agreed payment by or on
behalf of Small within up to ten years.
Denied that there was a final agreement. As to valuation, Flowrite and Hunchard are
without knowledge or information sufficient to form a belief as to Small’s averment
and cail upon him to prove same if relevant.
Denied that there was a final agreement. Admitted that Flowrite’s gross revenues for
2014, which included invoiced parts and supplies for installation and maintenance
jobs, approximated $1,000,000.00.
Denied. Small wrote out no checks to Hunchard in furtherance of the alleged
agreement. Hunchard “credited” Small with $300,000.00 payments in furtherance of the
transaction, by reducing his own (Hunchard’s) profit/bonus payments by that amount.
The $300,000.00 was effectively paid by Hunchard, not Small, reducing the purchase
price and reflecting Hunchard’s belief that Small would honor his remaining promises to
Denied. At all relevant times, Hunchard made it clear to Small that the conveyance
Hunchard.
would be 2% of his stock, as clearly specified in the 2014 and 2015 Minutes signed by
Hunchard and Smaili.15.
16.
17.
18.
19.
20.
21.
22.
23.
24,
25.
26.
27.
Admitted.
Admitted.
Denied.
Denied. These were shares of stock which created a controlling interest for Small,
and therefore had considerably greater value. Flowrite shares are not publicly traded.
The stated price also reflected Flowrite’s business prospects, that Small would have ten
years to pay, that Hunchard would remain as a key employee for the time being, and that
Hunchard would really pay most of the price by crediting Small for payments deducted
from Hunchard’s profits/bonuses, without reducing Small’s profits/bonuses.
Denied.
Denied.
Denied.
Denied.
Admitted.
Denied. Hunchard credited Small with $300,000.00 of Hunchard’s own profit and
bonus payments, without ever reducing Small’s compensation, profits or bonuses, or
receiving any payments from Small.
Denied.
Denied.
Denied, except that Hunchard admits that he told Small that he would only convey
2% of his stock, sufficient to create a “controlling (51%) interest” in Small.28.
29.
30.
31.
32.
33.
34,
35.
Adnitted.
Denied. Hunchard refused to return to Smal! money that Hunchard, not small, paid.
Denied. Hunchard’s personal residence is also the sole business location of Flowrite.
Any work done there was related to Flowrite’s business. Hunchard never
charged Flowrite extra for Flowrite’s use of Hunchard’s personal residence, or
compensated himself extra for his managerial duties running Flowrite, in which Small
never participated, From the time he started in 1996 until the day he walked out on
Flowrite on four days’ notice in December 2016, Small always received equal or greater
compensation than Hunchard. ,
Denied.
Denied.
COUNT I: BREACH OF CONTRACT
Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers
to Paragraphs 1 through 32 above, as if each was set forth here in its entirety.
Denied that there was a contract. In the alternative, if there was a contract, it was for
the conveyance by Hunchard to Small of 2% of Hunchard’s shares of Flowrite stock.
Denied. At the time of the Directors’ Meeting, there was an “agreement in principle”
subject to further negotiation. In the alternative, if there was an agreement, it was for the
. !
conveyance by Hunchard to Smal! of 2% of Hunchard’s shares of Flowwrite stock,
sufficient to give Small a “controlling (51%) interest” in Hlowrite
-5-36.
37.
38.
39.
40.
41.
42.
43.
44.
45.
46.
Denied, except that Hunchard observed and abided by the clearly expressed an
agreed intention of the parties that, upon acceptable payment of the full agreed price,
'
he would convey to Small 2% of his Flowrite stock.
Denied.
Denied.
Denied.
Denied.
WHEREFORE , Flowrite and Hunchard request that this Honorable Court dismiss
Count 1 of the Complaint, or in the alternative enter judgment against Smal! as
determined by the Court, together with any further relief the Court deems fair and just,
including interest, attorney fees, and costs.
COUNT II:
BREACH OF IMPLIED COVENANT TO CONTRACT IN GOOD FAITH
Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to
Paragraphs 1 through 40 above, as if each was set forth here in its entirety.
Admitted.
Denied.
Denied.
Denied.
Denied.
6WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss
Count I of the Complaint, or in the alternative enter judgment'against Small as
determined by the Court, together with any further relief the Court deems fair and
just, including interest, attorney fees and costs.
COUNT III: TORTIOUS INTERFERENCE WITH CONTRACTUAL DEALINGS
47. Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to
Paragraphs 1 through 46 above, as if each was set forth here in its entirety.
48. Denied. In the alternative, if there was a contract, it was for the conveyance by Hunchard
to Small of 2% of Hunchard’s Flowrite stock, sufficient to give Small 51% ownership.
49. Denied that there was a contract. If there was a contract, admitted that Hunchard knew
it stated that, upon acceptable payment by Small, Hunchard would convey to Small
sufficient shares of Hunchard’s Flowrite stock to give Small a controlling (51%) interest.
50. Denied.
51. Denied
52. Denied.
53. Denied.
WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss
Count III of the Complaint, or in the alternative enter judgment against Small as
determined by the Court, together with any further relief the Court deems fair
and just, including interest, attorney fees and costs.
-7-34,
55.
56.
57.
58.
59.
60.
61.
COUNT IV: VIOLATION OF M.G.L. ¢: 93A
Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers
to Paragraphs 1 through 53 above, as if each was set forth herein in its entirety.
Admitted as to Flowrite, but irrelevant as to the Complaint. Denied as to Hunchard, within
the context of the alleged “agreement” of which Small complains. On Flowrite
business, Hunchard never acted in his individual capacity, but rather as an officer and
Director of Flowrite. Small alleges a dispute between two shareholders, essentially
unrelated to the business activities of Flowrite.
Denied.
Denied.
WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss
Count TV of the Complaint, or in the alternative enter judgment against Small as
determined by the Court, together with any further relief the Court deems fair and
just, including interest, attorney fees, and costs.
COUNT V: BREACH OF FIDUCIARY DUTY
Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to
Paragraphs 1 through 57 above, as if each was set forth herein in its entirety.
Admitted.
Admitted.
Denied.
-8-62.
63.
64,
65.
66.
67.
68.
69.
70.
Denied.
Denied.
Denied. |
Denied.
WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss
Count V of the Complaint, or in the alternative enter judgment against Small as
determined by the Court, together with any further relief the Court deems fair
and just, including interest, attorney fees and costs.
COUNT VI: ACTION IN EQUITY
Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers
to Paragraphs ! through 65 above, as if each was set forth herein in its entirety.
Admitted. .
Admitted.
Denied.
Denied.
WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss
Count VI of the Complaint, or in the alternative enter judgment against Small as
determined by the Court, together with any further relief the Court deems fair
and just, including interest, attorney fees and costs.FIRST AFFIRMATIVE DEFENSE:
Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and
Hunchard deny, then Small’s claims are barred by the Statute of Limitations.
SECOND AFFIRMATIVE DEFENSE:
Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and
Hunchard deny, then Small’s claims are barred by the Statute of Frauds.
THIRD AFFIRMATIVE DEFENSE:
Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and
Hunchard deny, then Small’s claims are barred by the doctrine of laches.
FOURTH AFFIRMATIVE DEFENSE:
Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and
Hunchard deny, then Small’s claims are barred by failure of consideration.
FIFTH AFFIRMATIVE DEFENSE:
Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and
Hunchard deny, then Smail’s claims are barred by the doctrine of estoppel.
-10-COUNTERCLAIM
PARTIES
The Plaintiff in Counterclaim Flowrite Valve Service Inc. (hereinafter, “Flowrite”)
is a Massachusetts business corporation with a principal place of business at 29 Pond
Street, Uxbridge, Massachusetts 01569.
The Plaintiff in Counterclaim Michael J. Hunchard (hereinafter, “Hunchard”) is a
natural person with a principal residence at 29 Pond Street, Uxbridge, Massachusetts
01569.
The Defendant in Counterclaim Bradley Smatl (hereinafter “Small!”) is a natural person
with a principal residence at 12 Moorland Drive, Uxbridge, Massachusetts 01569.
FACTS
Hunchard founded Flowrite in 1992.
Hunchard organized Flowrite as a Massachusetts business corporation in 1994,
with Hunchard as its sole officer, Director and shareholder.
At all times relevant to this proceeding, the principal business of Flowrite has been
the installation, repair and maintenance of control valves, primarily for municipalities.
Small started work as a Flowrite employee in 1996.
On January 9, 1998, Flowrite, Hunchard and Small executed a “Shareholder
‘
Agreement”.
-1i-9.
10.
11.
12.
13.
14,
15.
The referenced Shareholder Agreement provided, inter alia, that for $1.00 and
other valuable consideration, Flowrite and Hunchard would incrementally convey
sufficient shares of Flowrite stock to Small that by January 1, 2002, Small would
own 49% of the shares of Flowrite.
The referenced Shareholder Agreement also contained a Covenant Not to Compete,
providing that: “While Small is employed by Flowrite, and for a period of five (5)
years thereafter, Hunchard and Small agree to refrain, directly or indirectly, from
competing with Flowrite, or soliciting its customers, in the six (6) New England States,
except as authorized by Hunchard.”
In 1998, and for nominal consideration, Flowrite issued shares of common stock
to Small sufficient to give Small a 25% equity interest in Flowrite. At the same time,
Small was elected a Director of the Corporation (with Hunchard).
Between 1999 and 2002, and for nominal consideration, Flowrite and Hunchard
periodically issued additional shares of stock sufficient to give Small a final 49% equity
interest in Flowrite.
By January 2002, Small had become the record owner of 49% of Flowrite, for which he
had paid Flowrite and Hunchard no money.
At all times after January 1998 until the time he walked out on Flowrite in
December 2016, Small was a Director and minority shareholder of Flowrite.
Inor prior to 2012, Hunchard and Small began negotiating tes of a conveyance of
Flowrite stock by Hunchard to Small sufficient to give Small a controlling (51%) interest.
-12-16. Hunchard and Small agreed on a price of $500,000.00 for the conveyance.
17. In February 2014, Flowrite held its Annual Directors’ Meeting. !
18. The Minutes of that 2014 Meeting, signed by both Hunchard and Small, stated
that Hunchard and Small had reached an “agreement in principle” that
upon payment by Small to Hunchard of $500,000.00 in not more than ten years,
Hunchard would convey to Small shares of his Flowrite stock sufficient to give Small “a
controlting (51%) interest in the Corporation.”
19. The agreement in principle referred to in the preceding paragraph was subject to
the parties negotiating a final agreement as to all terms and presenting it to the
Corporation for approval.
20. In February 2015, Flowrite held its Annual Directors’ Meeting.
21. The Minutes of that 2015 Meeting, signed by Hunchard and Smail, stated that “Michael J.
Hunchard and Bradley B. Small were still in the process of negotiating a stock transfer
agreement which would give Bradley B. Small a controlling (51%) interest in the
Corporation. When the Agreement has been finalized, it will be presented to the Officers
and Directors of the Corporation for discussion and approval.” |
22. — Inall relevant discussions with Small, Hunchard made it clear to Small that the
conveyance would be 2% of Hunchard’s stock, which was sufficient to get Small to a
controlling (51%) interest.
-13-23.
24,
25.
26.
27.
28.
29.
30.
In 2015, Small, acting in bad faith and suddenly professing not to understand what he had
agreed to, demanded that the conveyance include all of Hunchard’s stock
in Flowrite, giving Small not just controlling ownership in Flowrite, but sole ownership.
In 2015 and 2016, Hunchard, acting in good faith, offered Small various options
for purchasing Hunchard’s entire remaining equity interest in Flowrite, on terms
favorable to Small.
Small refused to negotiate in good faith by refusing to communicate, stalling for
more than a year, orally agreeing to alternative buy-out arrangements, and then
refusing to finalize those arrangements, while he apparently made plans to leave Flowrite,
all to the detriment of Flowrite and Hunchard.
At all relevant times, Small knew of the Covenant Not to Compete that he had signed
in 1998, as essential non-monetary consideration for Hunchard’s conveyance of 49% of
Flowrite to Small, for no money paid by Small.
On December 8, 2016, Small abruptly terminated discussions with Hunchard.
By 2016, Hunchard had in reality paid for Small the first $300,000.00 of the
agreed $500,000.00 purchase price, by crediting Small in that amount entirely from
reductions in Hunchard’s profit/bonus payments, with no corresponding
reduction in Small’s compensation or profit/bonus payments.
In doing so, Hunchard claimed and paid personal taxes on profit distributions and
bonuses that were in reality being credited to the purchase pric to be paid by Small.
At no time has Small given Hunchard any checks or made any monetary payments in
furtherance of the $500,000.00 stock purchase price.31.
32.
33.
34,
35.
36.
37.
38.
39.
During their entire time working together, Small was paid at least as much as, and often
more than, Hunchard, notwithstanding Hunchard’s extra managerial and administrative
duties, for which Hunchard never requested compensation from Flowrite.
On December 20, 2016, without notice to Flowrite or Hunchard and in flagrant violation of
the Covenant Not to Compete and his obligations to Flowrite and Hunchard, Small
began doing business as Hydrus Control Solutions, Inc. (hereinafter, “Hydrus”).
The Articles of Organization of Hydrus listed Small as its sole Director and officer.
The Articles of Organization of Hydcus stated that its principal business activity was
“control valve installation and service.”
The principal business activity of Hydrus, as stated in its Articles of Organization,
is identical to the principal business activity of Flowrite since its organization in 1994.
On December 26, 2016, without any prior notice to Flowrite or Hunchard, Small
sent Hunchard a text message that said he was leaving Flowrite in four days.
Upon receiving the text message, Hunchard immediately contacted Small to see if things
could be worked out, but Small never responded to that.
Small arranged for the Flowrite van he used to be returned to Hunchard, but the
van was virtually empty of the parts and supplies it would normally carry, which
were paid for by Flowrite, but which Small kept or used for his own benefit.
The Flowrite van returned by Small had extensive rear end damage that necessitated
expensive repairs by Flowrite.
-15-40.
41.
42.
43.
44.
45.
Small’s abrupt departure caused Flowrite and Hunchard other harm and expense,
including without being limited to: equipment and tools in Smalil/s possession that were
paid for by Fiowrite; replacing parts and supplies that Flowrite paid for but Smail kept
and wrongfully converted to his own use; revenues from work done by Small while he
was at Flowrite that was never submitted to and billed through Flowrite;
and revenues from work wrongfully taken from Flowrite by Small.
Immediately after December 20, 2016, Small, individually or through Hydrus,
directly and indirectly competed with Flowrite and Hunchard by soliciting and performing
work for Flowrite customers, billing for that work directly, and never accounting for it to
Flowrite or Hunchard, all without Flowrite or Hunchard approval.
For several months into 2017, Small intentionally continued to use his Flowrite cell
phone number to conduct his new business and solicit work for his new company, leading
customers to believe that they were still dealing with Flowrite. ,
Small continues to use Flowrite’s fax number, despite demands by Hunchard that he
not do so.
Hunchard and Flowrite made a final effort to resolve the dispute in 2017, but
Small refused to cooperate, and again abruptly terminated discussions.
Small and his new company have both been unjustly enriched by Small’s actions, and
Flowrite and Hunchard have suffered great harm from those actions.46. In March 20, 2018, apparently in anticipation of this litigation, Small and Hydrus
filed with the Commonwealth of Massachusetts a Statement of Change of Supplemental
Information Contained in Articles of Organization, changing the principal activity of
Hydrus to: “to engage in electrical contracting and installation work.”
47. Small and Hydrus continue to engage in the work of control valve installation and service.
COUNT I: BREACH OF COVENANT NOT TO COMPETE
48. The Plaintiffs in Counterclaim repeat, re-allege, and incorporate by reference fully
Paragraphs | through 47 of the Counterclaim, as if each was set forth here in
its entirety.
49. Asaresult of Small violating the Covenant Not to Compete, Small and Hydrus have been
unjustly enriched and Flowrite and Hunchard have suffered great harm.
WHEREFORE, Flowrite and Hunchard ask this Honorable Court to enter
an order enforcing the Covenant Not to Compete, a judgment in their favor
for compensatory and punitive monetary damages against Small, and any further relief
the Court deems fair and just, including interest, attorney fees and costs.
COUNT I: BREACH OF CONTRACT
50. The Plaintiffs in Counterclaim repeat, re-allege and incorporate’ by reference fully
Paragraphs 1 through 49 of the Counterclaim, as if each was set forth here in its entirety.
-17-51. If there was a contract in this case, its terms were clear -- Hunchard was to convey 2%
of his shares of Flowrite stock to Small, which was sufficient to bring Small to a
controlling 51% interest in Flowrite.
52, By his actions and non-actions, Small refused to perform his obligations under the contract.
53. Smail’s actions constitute a breach of any contract between the parties.
54. Asa result of the breach of any contract by Small, Small has been unjustly enriched and
Flowrite and Hunchard have suffered great harm.
WHEREFORE, Flowrite and Hunchard ask this Honorable Court to enter a
judgment in their favor for compensatory and punitive damages against Small, and any
further relief the Court deems fair and just, including interest, attorney fees and costs.
COUNT II: BREACH OF IMPLIED COVENANT TO CONTRACT IN GOOD FAITH
55. The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully
Paragraphs 1 through 54 of the Counterclaim, as if each was set forth here in its entirety.
56. In every contract, there is an implied covenant of good faith and fair dealings.
57. If there was a contract in this case, then Small acted unfairly and in bad faith, with
intent to deceive and mislead Flowrite and Hunchard, to violate an agreement that
was clear on its face, and violate an unambiguous Covenant Not to Compete that was
consideration for Small essentially being gifted with 49% of Flowrite.
58. The actions of Small established a clear pattern of intentional malice, deceit, bad faith
and interference.
-18-59. Asa result of the conduct of Small, Small has been unjustly enriched and Flowrite
and Hunchard have suffered great harm.
WHEREFORE, the Plaintiffs in Counterclaim ask this Honorable Court to enter
judgment in their favor for compensatory and punitive monetary damages against Smail,
and any further relief the Court deems fair and just, including interest, attorney fees and
costs.
COUNT IV: TORTIOUS INTERFERENCE WITH CONTRACT
60. The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully
Paragraphs 1 through 59 of the Counterclaim, as if each was set forth here in its entirety.
61. If there was a contract in this case, then the actions of Small established a clear
pattern of intentional and tortious malice, deceit, bad faith, and interference.
62, As aresult of the conduct of Small, Small has been unjustly enriched and Flowrite and
Hunchard have suffered great harm.
WHEREFORE, the Plaintiffs in Counterclaim ask this Honorable Court to enter
a judgment in their favor for compensatory and punitive damages against Small, and any
further relief the Court deems fair and just, including interest, attorney fees and costs.
-19-63.
64.
65.
66.
67.
68.
COUNTV: BREACH OF FIDUCIARY DUTY
The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully
Paragraphs | through 62 of the Counterclaim, as if each was set forth here in its entirety.
At all relevant times, Small was one of two Directors, and a 49% shareholder, of Flowrite.
Asa Director, key employee, and 49% shareholder, Small had a fiduciary duty to
Flowrite and Hunchard to deal with them fairly, honestly, lawfully and in good faith.
By his pattern of deceitful, unlawful and bad faith conduct, Small has unjustly enriched
himself at the expense of Flowrite and Hunchard, violated his fiduciary duty, and caused
great harm to Flowrite and Hunchard.
WHEREFORE, the Plaintiffs in Counterclaim ask this Honorable Court to
enter a judgment in their favor for compensatory and punitive monetary damages against
Small, and any further relief the Court deems fair and just, including interest, attorney
fees and costs.
COUNT VI: VIOLATION OF M.G.L. ¢. 93A
The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully
Paragraphs 1 through 66 of the Counterclaim, as if each was set forth here in
its entirety.
At all relevant times, Small was engaged in trade or commerce within the meaning of
M.G.L. c. 93A.
-20-69.
70.
71.
By his intentional, unlawful and deceitful actions, taken in bad faith, Small engaged ina
course of unfair and deceptive acts and practices within the meaning of M.G.L. c. 93A.
By his actions, Small has unjustly enriched himself and caused great harm to Flowrite
and Hunchard.
WHEREFORE, Plaintiffs in Counterclaim ask this Honorable Court to
enter judgment in their favor against Small in an amount determined by the Court, with
treble damages pursuant to M.G.L. c. 93A, plus any other relief the Court deems fair and
just, including interest, costs and attorney fees.
COUNT VII: ACTION IN GENERAL EQUITY
The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully
Paragraphs 1 through 70 of the Counterclaim, as if each was set forth here in its
entirety.
By his intentional, unlawful and deceitful actions, taken in bad faith and in willful
disregard of any agreement between the parties, Small has unjustly enriched himself and
caused great harm to Flowrite and Hunchard,
WHEREFORE, Plaintiffs in Counterclaim ask this Honorable Court to enter judgment
in their favor for compensatory and punitive monetary damages against Small,
and any further relief the Court deems fair and just, including interest, costs and
attorney fees.
-21-73.
74.
COUNT VIII: UNJUST ENRICHMENT
The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully
Paragraphs | through 72 of the Counterclaim, as if each was set forth here in its
entirety.
By his intentional, unlawful and deceitful actions, including without being limited to
violation of fiduciary duties and misappropriation of parts, equipment and billings to
which Flowrite was lawfully entitled, Small has unjustly enriched himself and caused great
harm to Flowrite and Hunchard.
WHEREFORE, Plaintiffs in Counterclaim ask this Honorable Court to enter
judgment in their favor for compensatory and punitive damages against Small, and
any further relief the Court deems fair and just, including interest, costs and
attorney fees.
Respectfully submitted,
Flowrite Valve Service, Inc. and
Michael J. Hunchard
By their attorney,
Richard T. Rook BBO 426780
POB 277, 1170 West Street
Sheldonville, MA 02070
508.523.8356
rooklaw@gmail.com
July 30, 2018
-22-
Preview
COMMONWEALTH OF massaceusetrs WORCESTER, SS. SUPERIOR COURT DEPARTMENT CIVIL ACTION NO, 1885-CV01028__1) BRADLEY SMALL, . AUG - 2 2018 0s can ] Plaintiff J ] ] ] ANSWER AND COUNTERCL ] ] ] Vv. FLOWRITE VALVE SERVICE, INC. and MICHAEL J. HUNCHARD, Defendants ed Now come the Defendants Flowrite Valve Service, Inc. (hereinafter, “Flowrite”) and Michael J. Hunchard (hereinafter, “Hunchard”) and answer the averments in the Complaint: PARTIES Lj + 1. Admitted. 2. Admitted. 3. Admitted. FACTS 4. Denied. The Plaintiff (hereinafter “Smali”) and Hunchard were never formal business “partners”. Flowrite was founded in 1992 and incorporated in 1994, by Hunchard alone. Small began working at Flowrite in 1996. At all relevant times, Hunchard was the majority shareholder, sole statutory officer and co-Director of Flowrite. At all relevant times, Small was a minority shareholder and co-Ditecto! of Flowrite. Both Hunchard and Small were employees of Flowrite. | -l-Denied that Hunchard and Small were at any time “co-owners” of Flowrite stock. At all relevant times, Hunchard owned more than 50% of Flowrite stock in his own name. At all relevant times, Small owned less than 50% of Flowrite stock in his own name. There were no other Flowrite shareholders. Admitted. Admitted. Admitted that Flowrite had a Directors‘ Meeting in February 2014, and denied as to every other allegation. The Minutes of that Meeting, signed by Hunchard and Small, state clearly that Hunchard and Small had reached an “agreement in principle” that upon payment by Small to Hunchard of $500,000.00 in not more than ten years, Hunchard would convey to Small shares of his common stock sufficient to give Small “a controlling (51%) interest” in the Corporation.” The agreement in principle was conditioned upon the parties negotiating a final agreement as to all terms and presenting it to the Corporation for approval. In February 2015, Small signed Minutes of a Directors’ Meeting stating that “Michael J. Hunchard and Bradley B. Small were still in the process of negotiating a stock transfer agreement which would give Bradley B. Small a controlling (51%) interest in the Corporation. When the Agreement has been finalized, it will be presented to the Officers and Directors of the Corporation for discussion and approval.” No written final agreement was ever reached, signed or presented to the Corporation. -2-10. 11. 12. 13. 14. Admitted, but the price was agreed to “in principle”, subject to the parties reaching a final agreement as to all terms of the conveyance, which never lr Denied that there was a final agreement. In the alternative, if there was an agreement, its terms were clear and agreed to -- Hunchard would convey 2% of his stock to Small (sufficient to give Small a controlling 51% interest), upon agreed payment by or on behalf of Small within up to ten years. Denied that there was a final agreement. As to valuation, Flowrite and Hunchard are without knowledge or information sufficient to form a belief as to Small’s averment and cail upon him to prove same if relevant. Denied that there was a final agreement. Admitted that Flowrite’s gross revenues for 2014, which included invoiced parts and supplies for installation and maintenance jobs, approximated $1,000,000.00. Denied. Small wrote out no checks to Hunchard in furtherance of the alleged agreement. Hunchard “credited” Small with $300,000.00 payments in furtherance of the transaction, by reducing his own (Hunchard’s) profit/bonus payments by that amount. The $300,000.00 was effectively paid by Hunchard, not Small, reducing the purchase price and reflecting Hunchard’s belief that Small would honor his remaining promises to Denied. At all relevant times, Hunchard made it clear to Small that the conveyance Hunchard. would be 2% of his stock, as clearly specified in the 2014 and 2015 Minutes signed by Hunchard and Smaili.15. 16. 17. 18. 19. 20. 21. 22. 23. 24, 25. 26. 27. Admitted. Admitted. Denied. Denied. These were shares of stock which created a controlling interest for Small, and therefore had considerably greater value. Flowrite shares are not publicly traded. The stated price also reflected Flowrite’s business prospects, that Small would have ten years to pay, that Hunchard would remain as a key employee for the time being, and that Hunchard would really pay most of the price by crediting Small for payments deducted from Hunchard’s profits/bonuses, without reducing Small’s profits/bonuses. Denied. Denied. Denied. Denied. Admitted. Denied. Hunchard credited Small with $300,000.00 of Hunchard’s own profit and bonus payments, without ever reducing Small’s compensation, profits or bonuses, or receiving any payments from Small. Denied. Denied. Denied, except that Hunchard admits that he told Small that he would only convey 2% of his stock, sufficient to create a “controlling (51%) interest” in Small.28. 29. 30. 31. 32. 33. 34, 35. Adnitted. Denied. Hunchard refused to return to Smal! money that Hunchard, not small, paid. Denied. Hunchard’s personal residence is also the sole business location of Flowrite. Any work done there was related to Flowrite’s business. Hunchard never charged Flowrite extra for Flowrite’s use of Hunchard’s personal residence, or compensated himself extra for his managerial duties running Flowrite, in which Small never participated, From the time he started in 1996 until the day he walked out on Flowrite on four days’ notice in December 2016, Small always received equal or greater compensation than Hunchard. , Denied. Denied. COUNT I: BREACH OF CONTRACT Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to Paragraphs 1 through 32 above, as if each was set forth here in its entirety. Denied that there was a contract. In the alternative, if there was a contract, it was for the conveyance by Hunchard to Small of 2% of Hunchard’s shares of Flowrite stock. Denied. At the time of the Directors’ Meeting, there was an “agreement in principle” subject to further negotiation. In the alternative, if there was an agreement, it was for the . ! conveyance by Hunchard to Smal! of 2% of Hunchard’s shares of Flowwrite stock, sufficient to give Small a “controlling (51%) interest” in Hlowrite -5-36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. Denied, except that Hunchard observed and abided by the clearly expressed an agreed intention of the parties that, upon acceptable payment of the full agreed price, ' he would convey to Small 2% of his Flowrite stock. Denied. Denied. Denied. Denied. WHEREFORE , Flowrite and Hunchard request that this Honorable Court dismiss Count 1 of the Complaint, or in the alternative enter judgment against Smal! as determined by the Court, together with any further relief the Court deems fair and just, including interest, attorney fees, and costs. COUNT II: BREACH OF IMPLIED COVENANT TO CONTRACT IN GOOD FAITH Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to Paragraphs 1 through 40 above, as if each was set forth here in its entirety. Admitted. Denied. Denied. Denied. Denied. 6WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss Count I of the Complaint, or in the alternative enter judgment'against Small as determined by the Court, together with any further relief the Court deems fair and just, including interest, attorney fees and costs. COUNT III: TORTIOUS INTERFERENCE WITH CONTRACTUAL DEALINGS 47. Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to Paragraphs 1 through 46 above, as if each was set forth here in its entirety. 48. Denied. In the alternative, if there was a contract, it was for the conveyance by Hunchard to Small of 2% of Hunchard’s Flowrite stock, sufficient to give Small 51% ownership. 49. Denied that there was a contract. If there was a contract, admitted that Hunchard knew it stated that, upon acceptable payment by Small, Hunchard would convey to Small sufficient shares of Hunchard’s Flowrite stock to give Small a controlling (51%) interest. 50. Denied. 51. Denied 52. Denied. 53. Denied. WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss Count III of the Complaint, or in the alternative enter judgment against Small as determined by the Court, together with any further relief the Court deems fair and just, including interest, attorney fees and costs. -7-34, 55. 56. 57. 58. 59. 60. 61. COUNT IV: VIOLATION OF M.G.L. ¢: 93A Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to Paragraphs 1 through 53 above, as if each was set forth herein in its entirety. Admitted as to Flowrite, but irrelevant as to the Complaint. Denied as to Hunchard, within the context of the alleged “agreement” of which Small complains. On Flowrite business, Hunchard never acted in his individual capacity, but rather as an officer and Director of Flowrite. Small alleges a dispute between two shareholders, essentially unrelated to the business activities of Flowrite. Denied. Denied. WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss Count TV of the Complaint, or in the alternative enter judgment against Small as determined by the Court, together with any further relief the Court deems fair and just, including interest, attorney fees, and costs. COUNT V: BREACH OF FIDUCIARY DUTY Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to Paragraphs 1 through 57 above, as if each was set forth herein in its entirety. Admitted. Admitted. Denied. -8-62. 63. 64, 65. 66. 67. 68. 69. 70. Denied. Denied. Denied. | Denied. WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss Count V of the Complaint, or in the alternative enter judgment against Small as determined by the Court, together with any further relief the Court deems fair and just, including interest, attorney fees and costs. COUNT VI: ACTION IN EQUITY Flowrite and Hunchard repeat, re-allege and incorporate by reference fully their answers to Paragraphs ! through 65 above, as if each was set forth herein in its entirety. Admitted. . Admitted. Denied. Denied. WHEREFORE, Flowrite and Hunchard request that this Honorable Court dismiss Count VI of the Complaint, or in the alternative enter judgment against Small as determined by the Court, together with any further relief the Court deems fair and just, including interest, attorney fees and costs.FIRST AFFIRMATIVE DEFENSE: Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and Hunchard deny, then Small’s claims are barred by the Statute of Limitations. SECOND AFFIRMATIVE DEFENSE: Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and Hunchard deny, then Small’s claims are barred by the Statute of Frauds. THIRD AFFIRMATIVE DEFENSE: Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and Hunchard deny, then Small’s claims are barred by the doctrine of laches. FOURTH AFFIRMATIVE DEFENSE: Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and Hunchard deny, then Small’s claims are barred by failure of consideration. FIFTH AFFIRMATIVE DEFENSE: Even if Small has been harmed by any actions of Flowrite and/or Hunchard, which Flowrite and Hunchard deny, then Smail’s claims are barred by the doctrine of estoppel. -10-COUNTERCLAIM PARTIES The Plaintiff in Counterclaim Flowrite Valve Service Inc. (hereinafter, “Flowrite”) is a Massachusetts business corporation with a principal place of business at 29 Pond Street, Uxbridge, Massachusetts 01569. The Plaintiff in Counterclaim Michael J. Hunchard (hereinafter, “Hunchard”) is a natural person with a principal residence at 29 Pond Street, Uxbridge, Massachusetts 01569. The Defendant in Counterclaim Bradley Smatl (hereinafter “Small!”) is a natural person with a principal residence at 12 Moorland Drive, Uxbridge, Massachusetts 01569. FACTS Hunchard founded Flowrite in 1992. Hunchard organized Flowrite as a Massachusetts business corporation in 1994, with Hunchard as its sole officer, Director and shareholder. At all times relevant to this proceeding, the principal business of Flowrite has been the installation, repair and maintenance of control valves, primarily for municipalities. Small started work as a Flowrite employee in 1996. On January 9, 1998, Flowrite, Hunchard and Small executed a “Shareholder ‘ Agreement”. -1i-9. 10. 11. 12. 13. 14, 15. The referenced Shareholder Agreement provided, inter alia, that for $1.00 and other valuable consideration, Flowrite and Hunchard would incrementally convey sufficient shares of Flowrite stock to Small that by January 1, 2002, Small would own 49% of the shares of Flowrite. The referenced Shareholder Agreement also contained a Covenant Not to Compete, providing that: “While Small is employed by Flowrite, and for a period of five (5) years thereafter, Hunchard and Small agree to refrain, directly or indirectly, from competing with Flowrite, or soliciting its customers, in the six (6) New England States, except as authorized by Hunchard.” In 1998, and for nominal consideration, Flowrite issued shares of common stock to Small sufficient to give Small a 25% equity interest in Flowrite. At the same time, Small was elected a Director of the Corporation (with Hunchard). Between 1999 and 2002, and for nominal consideration, Flowrite and Hunchard periodically issued additional shares of stock sufficient to give Small a final 49% equity interest in Flowrite. By January 2002, Small had become the record owner of 49% of Flowrite, for which he had paid Flowrite and Hunchard no money. At all times after January 1998 until the time he walked out on Flowrite in December 2016, Small was a Director and minority shareholder of Flowrite. Inor prior to 2012, Hunchard and Small began negotiating tes of a conveyance of Flowrite stock by Hunchard to Small sufficient to give Small a controlling (51%) interest. -12-16. Hunchard and Small agreed on a price of $500,000.00 for the conveyance. 17. In February 2014, Flowrite held its Annual Directors’ Meeting. ! 18. The Minutes of that 2014 Meeting, signed by both Hunchard and Small, stated that Hunchard and Small had reached an “agreement in principle” that upon payment by Small to Hunchard of $500,000.00 in not more than ten years, Hunchard would convey to Small shares of his Flowrite stock sufficient to give Small “a controlting (51%) interest in the Corporation.” 19. The agreement in principle referred to in the preceding paragraph was subject to the parties negotiating a final agreement as to all terms and presenting it to the Corporation for approval. 20. In February 2015, Flowrite held its Annual Directors’ Meeting. 21. The Minutes of that 2015 Meeting, signed by Hunchard and Smail, stated that “Michael J. Hunchard and Bradley B. Small were still in the process of negotiating a stock transfer agreement which would give Bradley B. Small a controlling (51%) interest in the Corporation. When the Agreement has been finalized, it will be presented to the Officers and Directors of the Corporation for discussion and approval.” | 22. — Inall relevant discussions with Small, Hunchard made it clear to Small that the conveyance would be 2% of Hunchard’s stock, which was sufficient to get Small to a controlling (51%) interest. -13-23. 24, 25. 26. 27. 28. 29. 30. In 2015, Small, acting in bad faith and suddenly professing not to understand what he had agreed to, demanded that the conveyance include all of Hunchard’s stock in Flowrite, giving Small not just controlling ownership in Flowrite, but sole ownership. In 2015 and 2016, Hunchard, acting in good faith, offered Small various options for purchasing Hunchard’s entire remaining equity interest in Flowrite, on terms favorable to Small. Small refused to negotiate in good faith by refusing to communicate, stalling for more than a year, orally agreeing to alternative buy-out arrangements, and then refusing to finalize those arrangements, while he apparently made plans to leave Flowrite, all to the detriment of Flowrite and Hunchard. At all relevant times, Small knew of the Covenant Not to Compete that he had signed in 1998, as essential non-monetary consideration for Hunchard’s conveyance of 49% of Flowrite to Small, for no money paid by Small. On December 8, 2016, Small abruptly terminated discussions with Hunchard. By 2016, Hunchard had in reality paid for Small the first $300,000.00 of the agreed $500,000.00 purchase price, by crediting Small in that amount entirely from reductions in Hunchard’s profit/bonus payments, with no corresponding reduction in Small’s compensation or profit/bonus payments. In doing so, Hunchard claimed and paid personal taxes on profit distributions and bonuses that were in reality being credited to the purchase pric to be paid by Small. At no time has Small given Hunchard any checks or made any monetary payments in furtherance of the $500,000.00 stock purchase price.31. 32. 33. 34, 35. 36. 37. 38. 39. During their entire time working together, Small was paid at least as much as, and often more than, Hunchard, notwithstanding Hunchard’s extra managerial and administrative duties, for which Hunchard never requested compensation from Flowrite. On December 20, 2016, without notice to Flowrite or Hunchard and in flagrant violation of the Covenant Not to Compete and his obligations to Flowrite and Hunchard, Small began doing business as Hydrus Control Solutions, Inc. (hereinafter, “Hydrus”). The Articles of Organization of Hydrus listed Small as its sole Director and officer. The Articles of Organization of Hydcus stated that its principal business activity was “control valve installation and service.” The principal business activity of Hydrus, as stated in its Articles of Organization, is identical to the principal business activity of Flowrite since its organization in 1994. On December 26, 2016, without any prior notice to Flowrite or Hunchard, Small sent Hunchard a text message that said he was leaving Flowrite in four days. Upon receiving the text message, Hunchard immediately contacted Small to see if things could be worked out, but Small never responded to that. Small arranged for the Flowrite van he used to be returned to Hunchard, but the van was virtually empty of the parts and supplies it would normally carry, which were paid for by Flowrite, but which Small kept or used for his own benefit. The Flowrite van returned by Small had extensive rear end damage that necessitated expensive repairs by Flowrite. -15-40. 41. 42. 43. 44. 45. Small’s abrupt departure caused Flowrite and Hunchard other harm and expense, including without being limited to: equipment and tools in Smalil/s possession that were paid for by Fiowrite; replacing parts and supplies that Flowrite paid for but Smail kept and wrongfully converted to his own use; revenues from work done by Small while he was at Flowrite that was never submitted to and billed through Flowrite; and revenues from work wrongfully taken from Flowrite by Small. Immediately after December 20, 2016, Small, individually or through Hydrus, directly and indirectly competed with Flowrite and Hunchard by soliciting and performing work for Flowrite customers, billing for that work directly, and never accounting for it to Flowrite or Hunchard, all without Flowrite or Hunchard approval. For several months into 2017, Small intentionally continued to use his Flowrite cell phone number to conduct his new business and solicit work for his new company, leading customers to believe that they were still dealing with Flowrite. , Small continues to use Flowrite’s fax number, despite demands by Hunchard that he not do so. Hunchard and Flowrite made a final effort to resolve the dispute in 2017, but Small refused to cooperate, and again abruptly terminated discussions. Small and his new company have both been unjustly enriched by Small’s actions, and Flowrite and Hunchard have suffered great harm from those actions.46. In March 20, 2018, apparently in anticipation of this litigation, Small and Hydrus filed with the Commonwealth of Massachusetts a Statement of Change of Supplemental Information Contained in Articles of Organization, changing the principal activity of Hydrus to: “to engage in electrical contracting and installation work.” 47. Small and Hydrus continue to engage in the work of control valve installation and service. COUNT I: BREACH OF COVENANT NOT TO COMPETE 48. The Plaintiffs in Counterclaim repeat, re-allege, and incorporate by reference fully Paragraphs | through 47 of the Counterclaim, as if each was set forth here in its entirety. 49. Asaresult of Small violating the Covenant Not to Compete, Small and Hydrus have been unjustly enriched and Flowrite and Hunchard have suffered great harm. WHEREFORE, Flowrite and Hunchard ask this Honorable Court to enter an order enforcing the Covenant Not to Compete, a judgment in their favor for compensatory and punitive monetary damages against Small, and any further relief the Court deems fair and just, including interest, attorney fees and costs. COUNT I: BREACH OF CONTRACT 50. The Plaintiffs in Counterclaim repeat, re-allege and incorporate’ by reference fully Paragraphs 1 through 49 of the Counterclaim, as if each was set forth here in its entirety. -17-51. If there was a contract in this case, its terms were clear -- Hunchard was to convey 2% of his shares of Flowrite stock to Small, which was sufficient to bring Small to a controlling 51% interest in Flowrite. 52, By his actions and non-actions, Small refused to perform his obligations under the contract. 53. Smail’s actions constitute a breach of any contract between the parties. 54. Asa result of the breach of any contract by Small, Small has been unjustly enriched and Flowrite and Hunchard have suffered great harm. WHEREFORE, Flowrite and Hunchard ask this Honorable Court to enter a judgment in their favor for compensatory and punitive damages against Small, and any further relief the Court deems fair and just, including interest, attorney fees and costs. COUNT II: BREACH OF IMPLIED COVENANT TO CONTRACT IN GOOD FAITH 55. The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully Paragraphs 1 through 54 of the Counterclaim, as if each was set forth here in its entirety. 56. In every contract, there is an implied covenant of good faith and fair dealings. 57. If there was a contract in this case, then Small acted unfairly and in bad faith, with intent to deceive and mislead Flowrite and Hunchard, to violate an agreement that was clear on its face, and violate an unambiguous Covenant Not to Compete that was consideration for Small essentially being gifted with 49% of Flowrite. 58. The actions of Small established a clear pattern of intentional malice, deceit, bad faith and interference. -18-59. Asa result of the conduct of Small, Small has been unjustly enriched and Flowrite and Hunchard have suffered great harm. WHEREFORE, the Plaintiffs in Counterclaim ask this Honorable Court to enter judgment in their favor for compensatory and punitive monetary damages against Smail, and any further relief the Court deems fair and just, including interest, attorney fees and costs. COUNT IV: TORTIOUS INTERFERENCE WITH CONTRACT 60. The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully Paragraphs 1 through 59 of the Counterclaim, as if each was set forth here in its entirety. 61. If there was a contract in this case, then the actions of Small established a clear pattern of intentional and tortious malice, deceit, bad faith, and interference. 62, As aresult of the conduct of Small, Small has been unjustly enriched and Flowrite and Hunchard have suffered great harm. WHEREFORE, the Plaintiffs in Counterclaim ask this Honorable Court to enter a judgment in their favor for compensatory and punitive damages against Small, and any further relief the Court deems fair and just, including interest, attorney fees and costs. -19-63. 64. 65. 66. 67. 68. COUNTV: BREACH OF FIDUCIARY DUTY The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully Paragraphs | through 62 of the Counterclaim, as if each was set forth here in its entirety. At all relevant times, Small was one of two Directors, and a 49% shareholder, of Flowrite. Asa Director, key employee, and 49% shareholder, Small had a fiduciary duty to Flowrite and Hunchard to deal with them fairly, honestly, lawfully and in good faith. By his pattern of deceitful, unlawful and bad faith conduct, Small has unjustly enriched himself at the expense of Flowrite and Hunchard, violated his fiduciary duty, and caused great harm to Flowrite and Hunchard. WHEREFORE, the Plaintiffs in Counterclaim ask this Honorable Court to enter a judgment in their favor for compensatory and punitive monetary damages against Small, and any further relief the Court deems fair and just, including interest, attorney fees and costs. COUNT VI: VIOLATION OF M.G.L. ¢. 93A The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully Paragraphs 1 through 66 of the Counterclaim, as if each was set forth here in its entirety. At all relevant times, Small was engaged in trade or commerce within the meaning of M.G.L. c. 93A. -20-69. 70. 71. By his intentional, unlawful and deceitful actions, taken in bad faith, Small engaged ina course of unfair and deceptive acts and practices within the meaning of M.G.L. c. 93A. By his actions, Small has unjustly enriched himself and caused great harm to Flowrite and Hunchard. WHEREFORE, Plaintiffs in Counterclaim ask this Honorable Court to enter judgment in their favor against Small in an amount determined by the Court, with treble damages pursuant to M.G.L. c. 93A, plus any other relief the Court deems fair and just, including interest, costs and attorney fees. COUNT VII: ACTION IN GENERAL EQUITY The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully Paragraphs 1 through 70 of the Counterclaim, as if each was set forth here in its entirety. By his intentional, unlawful and deceitful actions, taken in bad faith and in willful disregard of any agreement between the parties, Small has unjustly enriched himself and caused great harm to Flowrite and Hunchard, WHEREFORE, Plaintiffs in Counterclaim ask this Honorable Court to enter judgment in their favor for compensatory and punitive monetary damages against Small, and any further relief the Court deems fair and just, including interest, costs and attorney fees. -21-73. 74. COUNT VIII: UNJUST ENRICHMENT The Plaintiffs in Counterclaim repeat, re-allege and incorporate by reference fully Paragraphs | through 72 of the Counterclaim, as if each was set forth here in its entirety. By his intentional, unlawful and deceitful actions, including without being limited to violation of fiduciary duties and misappropriation of parts, equipment and billings to which Flowrite was lawfully entitled, Small has unjustly enriched himself and caused great harm to Flowrite and Hunchard. WHEREFORE, Plaintiffs in Counterclaim ask this Honorable Court to enter judgment in their favor for compensatory and punitive damages against Small, and any further relief the Court deems fair and just, including interest, costs and attorney fees. Respectfully submitted, Flowrite Valve Service, Inc. and Michael J. Hunchard By their attorney, Richard T. Rook BBO 426780 POB 277, 1170 West Street Sheldonville, MA 02070 508.523.8356 rooklaw@gmail.com July 30, 2018 -22-