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Breach of Fiduciary Duty Lawsuit
South Tampa Paintball VS Amy Abdnour

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
HILLSBOROUGH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION

SOUTH TAMPA PAINTBALL,
LLC; and CASEY HENRY,                                                                                        Case No.: 16-CA-007534
Plaintiffs,                                                                                                                    Division: D
vs.
AMY ABDNOUR; and
AIM INDUSTRIES, LLC,
Defendants.
________________________________________/

AMENDED COMPLAINT FOR EQUITABLE RELIEF AND DAMAGES

COMES NOW, the Plaintiffs, SOUTH TAMPA PAINTBALL, LLC and CASEY HENRY, by and through their undersigned counsel, and sue the Defendants, AMY ABDNOUR and AIM INDUSTRIES, LLC, and as grounds therefore would allege as follows:

GENERAL ALLEGATIONS

  1. Jurisdiction lies in this Court in accordance with Florida Statutes § 26.012(2) since this action includes a claim for damages in excess of fifteen thousand dollars ($15,000.00).

2. Venue is proper in this Court and Hillsborough County, Florida because the Defendant, Amy Abdnour (hereinafter “Defendant Abdnour”), is a resident of Hillsborough County, Florida.

3. Defendant AIM Industries, LLC (“AIM”) is a Florida limited liability company that owns land in Hillsborough County, Florida of which Plaintiff Casey Henry (hereinafter “Plaintiff Henry”) and Defendant Abdnour are equitable owners. The land is being used in a joint venture with Plaintiff South Tampa Paintball, LLC (hereinafter “STP”).

4. At all times material hereto, STP has had, and continues to have, its main place of business in Hillsborough County, Florida where STP operates a business where customers come to the STP paintball field and play paintball. Paintball can be a dangerous sport because players use paintball guns and shoot paintballs at one another at speeds up to 280 feet per second. The game can be dangerous and requires the utmost care for the protection of customers, employees, bystanders, and anyone on the field from being shot in the eye and blinded by a paintball.

5. Plaintiff Henry and Defendant Abdnour formed STP on February 13, 2013 and are the only members of STP. A copy of the “Limited Liability Company Manager Managed Operating Agreement of SOUTH TAMPA PAINTBALL, LLC” is attached hereto as Exhibit “A” (hereinafter “Operating Agreement”).

6. At all times material hereto: (i) the Newlon Shutts Bowen Trust (hereinafter the “Trust”) has been, and continues to be, the Manager of STP; and (ii) Plaintiff Henry has been, and continues to be, the Trustee of the Trust.

7. As a Member of STP and the Trustee of the Manager of STP, Plaintiff Henry cannot be excluded from the management of STP, the day-to-day activities and operation of STP, the affairs of STP, or any other aspect of STP.

8. In accordance with the Operating Agreement, as well as Florida law, Defendant Abdnour owed, and continues to owe, a fiduciary duty to act in the best interests of STP, as well as in the best interests of Plaintiff Henry, the other member of STP. See paragraph eight (8) of Exhibit “A”.

9. Defendant Abdnour has breached her fiduciary duty and taken 100% control of STP assets without authorization or permission from Plaintiffs and has sole possession of all accounting records, books, and financial information concerning STP.

10. In violation of the Operating Agreement and Florida law, Defendant Abdnour has excluded Plaintiff Henry from the management of STP, the day-to-day activities and operation of STP, the affairs of STP, and other aspects of STP.

11. Because of such violations, on June 22, 2016 Plaintiff Henry demanded that Defendant Abdnour: (i) provide her with an accounting of the finances and financial affairs of STP by no later than July 22, 2016, which is a reasonable time; and (ii) allow her to inspect, by no later than July 22, 2016 which is a reasonable time, all financial records of STP, all books of STP, and all other financial documentation of STP related to revenue, expenses, income, assets, and liabilities, including but not limited to any profit and loss statement, chart of accounts, balance sheets, etc.

12. Defendant Abdnour failed and refused to comply with such demands by July 22, 2016 and, as of the filing of this Complaint, has not: (i) provided the requested accounting; or (ii) allowed the requested inspection.

13. Except for the Operating Agreement requirement that Plaintiff Henry and Defendant Abdnour (i) submit their issues to mediation, and, (ii) should mediation be unsuccessful, seek non-binding arbitration, all conditions precedent to this action have been met, including compliance with Florida Statutes § 605.0802, to the extent that said statute is applicable since Defendant Abdnour (a) has excluded Plaintiff Henry from the management of STP in violation of the Operating Agreement, (b) has taken control of the day-to-day activities, operation, affairs, and other aspects of STP in violation of the Operating Agreement, and (c) is otherwise acting as the Manager of STP in violation of the Operating Agreement. Specifically, there has been compliance with Florida Statutes § 605.0802 since (i) Plaintiff Henry made a demand on Defendant Abdnour, and Defendant Abdnour did not take the action within a reasonable time, (ii) a demand under Florida Statutes § 605.0802(1) would be futile, and/or (iii) irreparable injury would result to STP by waiting for Defendant Abdnour to take action to enforce the right in accordance with Florida Statutes § 605.0802(1), including financial ruin to STP should an employee suffer a catastrophic injury such as losing an eye since STP does not carry workers compensation insurance, criminal and other penalties for failing to properly account for revenue and pay taxes, and criminal and other penalties for improperly treating employees as independent contractors to avoid paying taxes, insurance, social security benefits, and other requirements under state and federal law. As to mediation and non-binding arbitration, the Court has stayed this action for sixty (60) days, effective upon the filing of this Amended Complaint, so that the parties can complete mediation and, if necessary, non-binding arbitration before proceeding further in this action.

Count I
Accounting

14. This is an action by Plaintiffs against Defendant Abdnour for an accounting.

15. Plaintiffs incorporate herein paragraphs 1 through 13 above.

16. Defendant Abdnour has personally and to the exclusion of STP and Plaintiff Henry:

a. collected, kept, and diverted, to her own use and benefit, cash and other revenue of STP;

b. secretly opened bank account(s) and deposited funds of STP into such bank account(s);

c. used and spent STP’s money for her own personal benefit;

d. breached her fiduciary duty to STP and Plaintiff Henry;

e. closed STP bank accounts and moved the money so that STP and Plaintiff Henry have no control or information concerning the money collected by STP through operating revenue;

f. spent STP money without any form of accounting;

g. denied STP and Plaintiff Henry access to the records and financial information of STP;

h. denied STP and Plaintiff Henry access to the video surveillance equipment to see and monitor the cameras on the STP property; and

i. refused to identify the bank account(s) where STP’s money is being deposited, refused to account for revenue, expenses, and income of STP, refused to keep and maintain appropriate books, ledgers, and other records of STP, and refused to provide Plaintiffs with access to the books, ledgers, and other records of STP.

17. As a result, this Court should enter an Order: (i) requiring a full accounting of the finances and financial affairs of STP; (ii) requiring Defendant Abdnour to identify all bank accounts, assets, cash holdings, and other financial information of STP; and (iii) requiring Defendant Abdnour to produce and allow Plaintiffs to inspect all financial records of STP from February 13, 2013, including but not limited to bank statements, canceled checks, credit card statements, income statements, balance sheets, receipts, and other documentation related to revenue or expenditures of STP.

WHEREFORE, the Plaintiffs, South Tampa Paintball, LLC and Casey Henry, respectfully request for this Honorable Court to order Defendant Amy Abdnour to:

a) Identify all bank accounts that have been opened, closed, or used in any way in regard to STP from February 13, 2013 up and through the date Ordered by this Honorable Court;

b) Deposit all cash holdings into the STP operating account;

c) Produce all financial records of STP, including monthly bank statements, money transfers, deposits and canceled checks;

d) Produce all monthly credit card statements of each and every credit card used to purchase goods, supplies, equipment or services on behalf of STP;

e) Produce all monthly credit card receipts for expenses, from any and all accounts from February 13, 2013 up and through the date Ordered by this Honorable Court;

f) Produce records for all expenses from February 13, 2013 made by her on behalf of STP;

g) Produce records for all income collected by STP from February 13, 2013 up and through the date Ordered by this Honorable Court;

h) Produce all Sales Tax reports and records from February 13, 2013 up and through the date Ordered by this Honorable Court;

i) Produce all Federal Income tax returns, Quarterly payroll reports, 1099’s, Schedule K’s, K-1’s, Self employment tax returns, Social Security and Medicare tax payments, Federal Income Tax Withholding Reports, Federal unemployment taxes, and extension requests to file any returns, from February 13, 2013 up and through the date Ordered by this Honorable Court;

j) Produce all workers compensation insurance policies for all workers and employees of STP from February 13, 2013 up and through the date Ordered by this Honorable Court;

k) Produce all records for a full accounting of STP;

l) Provide access to the STP surveillance cameras; and

m) Take any other action that this Honorable Court may deem necessary and proper.

Count II
Injunctive Relief

18. This is an action by Plaintiffs against Defendant Abdnour for an injunction.

19. Plaintiffs incorporate herein paragraphs 1 through 13 and 16 above.

20. Defendant has property and assets of STP and should be enjoined from: (i) transferring, opening, and/or closing any bank accounts, savings accounts, safe deposit boxes, or other financial accounts of STP or with money belonging to STP; and (ii) spending, using, or otherwise disposing of any money or other property of STP.

21. Plaintiffs have no adequate remedy at law and will suffer irreparable harm if an injunction is not entered.

22. Plaintiffs have a substantial likelihood of success on the merits of their claims against Defendant Abdnour.

WHEREFORE, the Plaintiffs, South Tampa Paintball, LLC and Casey Henry, respectfully request for this Honorable Court to enter an order enjoining Defendant Amy Abdnour from:

a) Closing any STP bank account or transferring money out of any STP bank account;

b) Spending any cash or other funds collected by STP;

c) Opening, moving, or changing any merchant credit card accounts of STP;

d) Writing any STP checks or otherwise spending or transferring any STP money;

e) Moving, hypothecating, or encumbering any asset of STP in any form or manner until the Court is satisfied that a full accounting has been made; and

f) Engaging in any such other and further conduct as this Honorable Court finds should be enjoined.

Count III
Appointment of a Receiver

23. This is an action by Plaintiffs against Defendants for appointment of a receiver.

24. Plaintiffs incorporate herein paragraphs 1 through 13 and 16 above.

25. STP and AIM should continue to operate and generate revenue during the pendency of this action. However, a receiver should be appointed by this Court to take possession of all assets of STP and AIM, hold and control the assets of STP and AIM, take possession of the financial records of STP and AIM, pay the bills and expenses of STP and AIM, and otherwise manage the financial affairs of STP and AIM during the pendency of this action to prevent further waste or hiding of the assets of STP and/or AIM.

26. STP, by a mode or means of operation, hires or has hired young adults and children (ages 15 through 17) to work at STP as “independent contractors” and paid with cash. As such, they are not protected by any form of workers compensation benefits, or are otherwise undocumented workers in violation of Federal Employment laws, and accordingly the Receiver should require all employees to be documented and covered by an appropriate workers compensation insurance policy to protect the workers, as well as the members of STP.

27. STP and AIM should be required to pay the receiver a reasonable fee for his or her services from the assets of STP and AIM.

WHEREFORE, the Plaintiffs, South Tampa Paintball, LLC and Casey Henry, respectfully request for this Honorable Court to enter an order: (i) appointing a receiver to hold and control the assets of STP and AIM, take possession of the financial records of STP and AIM, pay the bills and expenses of STP and AIM, and otherwise manage the financial affairs of STP and AIM from the date of entering such an Order until dissolved by this Court; (ii) requiring STP and AIM to pay the receiver a reasonable fee for his or her services from the assets of STP and AIM; and (iii) providing for any such other and further relief as this Honorable Court deems necessary and proper.

Count IV
Breach of Fiduciary Duty

28. This is an action by Plaintiffs against Defendant Abdnour for breach of fiduciary duty.

29. Plaintiffs incorporate herein paragraphs 1 through 13 and 16 above.

30. Defendant Abdnour at all times material hereto has had, and continues to have, a fiduciary duty to STP and Plaintiff Henry to act in the best interests of STP pursuant to Florida Statute § 605.04091.

31. Defendant Abdnour at all times material hereto has had, and continues to have, a fiduciary duty to STP and Plaintiff Henry to act in the best interests of AIM pursuant to Florida Statute § 605.04091.

32. Defendant Abdnour breached her fiduciary duty to STP, AIM, and/or Plaintiff Henry in one or more of the following ways:

a. Failing to keep track of financial transactions in any meaningful way, such as using Quick Books, Quicken, or an accountant to ensure that all revenue, expenses, and income are adequately documented and recorded for business and tax purposes;

b. Incurring expenses for STP without authorization, consent, or communication with STP and Plaintiff Henry;

c. Closing bank accounts to prevent the other Member of the LLCs from seeing the bank deposits, balances, and withdrawals;

d. Failing to advise STP and Plaintiff Henry where money is being kept or spent;

e. Spending money on personal items unrelated to the business of STP and/or AIM;

f. Failing to properly report and pay Federal Income Taxes, including Social Security taxes, FICA, and other Federal taxes;

g. Intentionally making tracking of revenue, expenses, and income difficult, or impossible by using multiple accounts that STP, AIM, and Plaintiff Henry cannot access, control, or monitor;

h. Failing to provide the financial records of STP upon reasonable request pursuant to paragraph 11 of the Operating Agreement attached as Exhibit “A”;

i. Violating Paragraph 12 of the Operating agreement by secretly opening bank accounts and holding STP money in such a manner,

j. Making payments that create a conflict of interest between STP and AIM because making payments of the mortgage and note ahead of schedule inures to Defendant Abdnour’s personal financial interests at the expense of STP and Plaintiff Henry;

k. Failing to use good business judgment in the operation of STP and AIM;

l. Failing to account and pay State Sales Taxes that are due from STP and AIM;

m. Failing to document and account for STP employees under Federal law;

n. Failing to have workers compensation insurance coverage for all employees of STP;

o. Failing to account for the operation of STP;

p. Depriving Plaintiff Henry of information and access to STP and AIM records; and

q. Self-dealing with respect to payment of the mortgage and note on the AIM property.

33. Each of these breaches by Defendant Abdnour have caused and created damages to STP and Plaintiff Henry and, if allowed to continue, will create additional risk of loss and exposure to the members of STP for which there is no adequate remedy at law.

WHEREFORE, the Plaintiffs, South Tampa Paintball, LLC and Casey Henry, demand a judgment for damages against Defendant Amy Abdnour, costs, and such other and further relief as this Honorable Court deems necessary and proper.

Count V
Dissolution of STP & AIM

34. This is an action by Plaintiffs against Defendants for dissolution and liquidation.

35. Plaintiffs incorporate herein paragraphs 1 through 13 and 16 above.

36. Plaintiff Henry and Defendant Abdnour, as the members of AIM and STP, have been unable to operate the business and are at a constant deadlock on all important issues.

37. Defendant Abdnour has breached her fiduciary duties under Florida Law to STP, AIM, and Plaintiff Henry.

38. After a full and final accounting has been completed to the satisfaction of the Court, then, by an Order of the Court, the assets of AIM and STP should be sold and liquidated and the proceeds divided and distributed to its members in a manner that appropriately compensates the members based upon their equity in each of the respective companies.

WHEREFORE, the Plaintiffs, South Tampa Paintball, LLC and Casey Henry, request for this Honorable Court to order a dissolution and distribution of the assets of South Tampa Paintball, LLC, a dissolution and distribution of the assets of AIM Industries, LLC, and such other and further relief as this Honorable Court deems necessary and proper.

Count VI
Expulsion of Amy Abdnour as a Member of STP

39. This is an action by Plaintiffs against Defendant Abdnour for disassociation and expulsion of Defendant Abdnour as a member of STP under Florida Statutes § 605.0601, 605.0602(6), and/or 605.0602(8).

40. Plaintiffs incorporate herein paragraphs 1 through 13 and 16 above.

41. Defendant Abdnour has engaged, and is presently engaging, in wrongful conduct that has adversely and materially affected, or will adversely and materially affect, STP’s activities and affairs, to wit:

a) Hiding assets of STP;

b) Failing to pay STP’s taxes;

c) Failing to account for STP income; and

d) Failing to obtain workers compensation insurance to protect STP and its employees should an STP employee be injured on the job, such as by having his or her eye shot out and blinded by a paintball.

42. Defendant Abdnour has willfully and persistently committed, and is continuing to commit, material breaches of (i) the STP operating agreement and (ii) her duty of good faith under Florida Statutes § 605.04091 by:

a) Using STP property for her own personal use;

b) Being grossly negligent in not having workers compensation insurance to protect STP and its employees should an STP employee be injured on the job, such as by having his or her eye shot out and blinded by a paintball;

c) Being reckless in the operation and continuation of STP without workers compensation insurance;

d) Willfully failing to report STP income to the Internal Revenue Service; and

e) Willfully failing to report and pay STP Sales Taxes to the State of Florida.

43. As a result, Defendant Abdnour should be disassociated and expelled from STP in accordance with Florida Statutes § 605.0601, 605.0602(6), and/or 605.0602(8).

WHEREFORE, the Plaintiffs, South Tampa Paintball, LLC and Casey Henry, request for this Honorable Court to enter an Order dissociating and expelling Defendant Amy Abdnour from South Tampa Paintball, LLC and providing for such other and further relief as this Court deems necessary and proper.

Certificate of Service

I HEREBY CERTIFY that a true and correct copy of this Amended Complaint for Equitable Relief and Damages has been served, on this 26th day of December, 2016, on J. Travis Godwin by email to: [email protected]

/s W. Bart Meacham
W. Bart Meacham, Esquire
Florida Bar No. 0043000
308 E. Plymouth St.
Tampa, FL 33603-5957
(813) 223-6334
(813) 425-6969 (facsimile)
Email: [email protected]
Attorney for the Plaintiffs

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