DOCUMENT 2
ELECTRONICALLY FILED
5/26/2017 3:39 PM
01-CV-2017-902168.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT
OF JEFFERSON COUNTY, ALABAMA
MATTHEW KALIFEH;
MARTY BARNETTT;
DAVID DYER JR.;
EDWIN W. McCONNELL; and
MITCHELL T. McCONNELL;

)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
TRINA HEALTH CARE PARTNERS, )
LLC; TRINA HEALTH, LLC;
)
THCP BHAM AL 1, LLC; BIONICA
)
INC.; G. FORD GILBERT; and
)
CHARLES F. BURBAGE;
)
FICTITIOUS PARTIES A, B, C, D, and )
E, those persons, firms, or other entities )
which participated in or aided the
)
wrongful acts or conduct made the
)
subject of this Complaint, whose names )
are unknown to Plaintiffs at this time but )
will be added by amendment; F, G, H and )
I, those persons who are or have served )
as partners and/or officers and/or
)
directors and/or control persons,
)
including every person occupying a
)
similar status or performing similar
)
functions of a partner and/or officer
)
and/or director and/or control person
)
of Trina Health Care Partners, LLC;
)
Trina Health, LLC, and/or THCP Bham )
AL 1, LLC, whose names are unknown to )
Plaintiffs at this time but will be added )
by amendment;
)
)
Defendants.
)

CIVIL ACTION NUMBER:

JURY TRIAL DEMANDED

COMPLAINT
COME NOW Plaintiffs, Matthew Kalifeh, Marty Barnett, David Dyer, Jr., Edwin W.
McConnell, and Mitchell T. McConnell (together, “Plaintiffs”), and for their complaint against

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Defendants Trina Health Care Partners, LLC; Trina Health, LLC; THCP Bham AL 1, LLC;
Bionica, Inc.; G. Ford Gilbert; Charles F. Burbage; and Fictitious Defendant A, B, C, D, E, F, G,
H, and I (together “Defendants”), allege as follows (the allegations hereof, except as to facts
personally pertaining to Plaintiffs, their own actions, and their own communications with any
Defendant, which are alleged upon knowledge, being otherwise alleged herein upon information
and belief at this initial stage of the case, because no discovery has yet taken place):
PARTIES
1.

Plaintiff Matthew Kalifeh (“Kalifeh”) is an adult resident citizen of Alabama.

Kalifeh purchased $343,420.00 principal amount of Class B shares issued by Defendant Trina
Health Care Partners, LLC and THCP Bham AL 1, LLC.
2.

Plaintiff Marty Barnett (“Barnett”) is an adult resident citizen of Alabama. Barnett

purchased $30,000.00 principal amount of Class B shares issued by Defendant Trina Health Care
Partners, LLC and THCP Bham AL 1, LLC.
3.

Plaintiff David Dyer, Jr. (“Dyer”) is an adult resident citizen of Alabama. Dyer

purchased $101,920.00 principal amount of Class B shares issued by Defendant Trina Health Care
Partners, LLC and THCP Bham AL 1, LLC.
4.

Plaintiff Edwin W. McConnell (“E. McConnell”) is an adult resident citizen of

Alabama. E. McConnell purchased $151,920.00 principal amount of Class B shares issued by
Defendant Trina Health Care Partners, LLC and THCP Bham AL 1, LLC.
5.

Plaintiff Mitchell T. McConnell (“M. McConnell”) is an adult resident citizen of

Alabama. M. McConnell purchased $155,340.00 principal amount of Class B shares issued by
Defendant Trina Health Care Partners, LLC and THCP Bham AL 1, LLC.

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6.

Upon information and belief, Plaintiffs own all Class B shares of Defendant THCP

Bham AL 1, LLC. Class B shares are non-voting shares and their only duties and obligations are
to: provide capital for THCP Bham AL 1, LLC. Class A shares are voting shares and have the
duties and obligations of “Opening, running and operating a Trina Health Care Clinic.”
7.

Defendant Trina Health Care Partners, LLC, is a Wyoming limited liability

company founded by Defendant G. Ford Gilbert, with its principal place of business in Cheyenne,
Wyoming. Trina Health Care Partners, LLC purports to provide Artificial Pancreas Treatment to
treat “all of the complications of diabetes.” Trina Health Care Partners, LLC is and was the issuer
and a seller of stock which the Plaintiffs were offered and sold, and which they purchased, and it
retained, controlled, and aided and abetted the other Defendants who were also sellers of Trina
Health Care Partners, LLC’s stock.
8.

Defendant Trina Health, LLC is a Nevada limited liability company founded by

Defendant G. Ford Gilbert, with its principal place of business in McClellan, California. Trina
Health, LLC also purports to provide Artificial Pancreas Treatment to treat “all of the
complications of diabetes.” Upon information and belief, Trina Health, LLC owns a percentage
of Trina Health Care Partners, LLC. Upon information and belief, Defendants G. Ford Gilbert is
the sole member of Trina Health, LLC. Upon information and belief, Trina Health, LLC is and
was the issuer and a seller of stock which the Plaintiffs were offered and sold, and which they
purchased, and it retained, controlled, and aided and abetted the other Defendants who were also
sellers of Trina Health Care Partners, LLC’s stock.
9.

Defendant THCP Bham AL 1, LLC is a Wyoming limited liability company with

its principal place of business in Birmingham, Jefferson County, Alabama. Upon information and
belief, Defendant THCP Bham AL 1, LLC, operates the TRINA health clinic located at 3829 Lorna

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Road, Suite 312, Hoover, AL 35244. Upon information and belief, THCP Bham AL, 1, LLC, is
and was the issuer and a seller of stock which the Plaintiffs were offered and sold, and which they
purchased, and it retained, controlled, and aided and abetted the other Defendants who were also
sellers of Trina Health Care Partners, LLC’s stock.
10.

Defendant Bionica, Inc. is a Nevada corporation with its principal place of business

in McClellan, California. Upon information and belief, Defendant G. Ford Gilbert is the sole
officer, director and shareholder of Defendant Bionica, Inc. Upon information and belief, Bionica,
Inc., supplied Trina Health Care Partners, LLC and THCP Bham AL 1, LLC with the necessary
equipment and supplies to operate the TRINA Health Clinic located in Birmingham, Jefferson
County, Alabama.
11.

Upon information and belief, Defendants Trina Health, LLC and Bionica, Inc.

operate out of a single location located in McClellan, California.
12.

Defendants Trina Health Care Partners, LLC; Trina Health, LLC; and THCP Bham

AL 1, LLC, are collectively referred to as “TRINA.”
13.

Defendant G. Ford Gilbert (“Gilbert”) is an adult resident citizen of the State of

California. Upon information and belief, during the time period relevant hereto, Gilbert has
variously served as founder, President, manager, a managing agent, advisor to management, and a
controlling person of Defendants Trina Health Care Partners, LLC; Trina Health, LLC; THCP
Bham AL 1, LLC; and Bionica, Inc. Upon information and belief, said Defendant is or was the
sole and/or major shareholder of Defendants Trina Health, LLC and Bionica, Inc., and was
motivated herein to protect his investment and position.
14.

Defendant Charles F. Burbage (“Burbage”) is an adult resident citizen of the State

of Georgia. During the time period relevant hereto, at various times, Burbage has served as

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manager, managing agent and a controlling person of Defendants Trina Health Care Partners, LLC
and THCP Bham AL 1, LLC. Said Defendant Burbage also has been a substantial shareholder of
THCP Bham AL 1, LLC during the relevant time period. Defendant Burbage was also a willing
co-conspirator with Defendant Gilbert in conceiving, promoting and carrying out the sale and
offering of the Trina Health Care Partners, LLC’s and the THCP Bham AL 1, LLC’s Stock which
is the subject of this Complaint, motivated heavily by the fact that Burbage was the only Class A
shareholder of THCP Bham AL 1, LLC and he and Defendant Gilbert would receive the proceeds
of such offering and sale to Plaintiffs and other of the Trina Health Care Partners, LLC’s stock and
the THCP Bham AL 1, LLC’s Class B shares. Upon information and belief, Burbage was
employed by Defendants Trina Health Care Partners, LLC and THCP Bham AL 1, LLC.
15.

Fictitious Parties “A,” “B,” “C,” “D,” and “E” are those persons, firms, or other

entities who participated in, aided and abetted, or conspired with the named Defendants to do or
carry out the wrongful acts and practices made the subject of this action, whose names are presently
unknown to Plaintiffs but who will, when their identities and pertinent facts have been ascertained,
be added hereto as Defendants.
16.

Fictitious Parties “F,” “G,” “H,” and “I” are those persons, firms, or other entities

who during the time period relevant to the subject matter of this Complaint were partner and/or
officer and/or director and/or a controlling person (directly or indirectly), including every person
occupying a similar status or performing similar functions of a partner and/or officer and/or
director and/or control person of Defendants Trina Health Care Partners, LLC; Trina Health, LLC
and/or THCP Bham AL 1, LLC, or of one of the named Defendants herein, whose names are
presently unknown to Plaintiffs but who will, when their identities and pertinent facts have been
ascertained, be added hereto as Defendants.

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17.

The term “Defendants” in this Complaint means both the named and fictitious

Defendants, including any persons, firms and entities hereafter named as an additional Defendant
by amendment to this Complaint.
JURISDICTION; VENUE; AGENCY; CONSPIRACY
18.

This Court has subject matter jurisdiction because the amount in controversy

exceeds $10,000 and equitable relief as well as legal relief is being sought; this Court also has
subject matter jurisdiction under the Securities Act of Alabama.
19.

This Court has personal jurisdiction over the Defendants because each Defendant

directed its activities toward, and sold or participated in the sale of securities into the State of
Alabama, and more specifically, to the Plaintiffs in this State. Defendants, directly or through
agents, within the meaning of the Alabama Long Arm Statute and the Securities Act of Alabama,
respectively:
a.

transacted business and had materially important communications
in this state, including offers and sales of securities and related
communications; and/or

b.

contracted to supply or obtain or provide services or goods in and
from this state; and/or

c.

caused tortious damage by act or omission in this state; and/or

d.

caused tortious damage by act or omission in and outside this state,
while such Defendant regularly does or solicits business in and
from this state or engages in other persistent course of conduct or
derives substantial revenue from goods used or consumed or
services rendered or capital raised in and from this state; and/or

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e.

caused damage in this state to the Alabama-resident Plaintiffs by
breach of covenant, representation or warranty when Defendants
reasonably expected such Plaintiffs to be affected thereby in this
state, while such Defendant regularly does or solicits business in
and from this state or engages in other persistent course of conduct
or derives substantial revenue from goods used or consumed or
services rendered or capital raised in and from this state; and/or

f.

otherwise had the requisite minimum contacts with this state, and,
under the circumstances, it is fair and reasonable to require the
person to come to this state to defend this action.

20.

Without limiting the generality of the foregoing, and as part of transacting business

in this State, the Defendants, acting in concert and conspiracy (particularly through joinder and
participation in, and facilitating or aiding, the plans and schemes to sell securities in this State to
the Plaintiffs through inadequate disclosures as set out herein), either personally or through their
agents came to this State to call on and meet with, and to communicate numerous times with,
Plaintiffs and other investors in Alabama, in order to raise capital for Defendants and TRINA’s
business, and as part of such activities, Defendants have issued, or caused to be issued, both
misrepresentations and omissions of material fact to Plaintiffs and other persons in this State.
21.

Without limiting the generality of the foregoing, Defendants Gilbert and Burbage

came to Jefferson County, Alabama on business connected with TRINA, during the relevant time
period, on their own behalf and as representatives or agents of the other Defendants with whom
they were affiliated or were dealing in regard to TRINA, both for the purpose of selling securities
unlawfully and to operate a TRINA Health Clinic in Jefferson County.

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22.

The conduct of the Defendants, acting in agreement and conspiracy pursuant to

securities offering plans carried out with each other and with third persons who have done business
in this State and who also committed tortious acts in this state and expressly aimed at Plaintiffs
and others in this State, in pursuance of said agreements and conspiracy as more particularly
described hereinafter, provides this Court with personal jurisdiction over said Defendants. The
Defendants named herein participated with securities-selling agents in the concerted action and
conspiracy described herein (particularly through joinder and participation in, and facilitating or
aiding, the plans and schemes to raise money from passive investors such as the Plaintiffs, through
inadequate disclosures as set out herein), which was aimed at Plaintiffs and others in Alabama,
and through them, at all of the Plaintiffs, to obtain the moneys of Plaintiffs and others through
fraud, deception and other means. Said concerted action, joint plans and conspiracy, and conduct
subject all Defendants to personal jurisdiction of this Court under the co-conspirator basis of
personal jurisdiction recognized in (among other Alabama cases): See, e.g., Ex parte Barton, 976
So. 2d 438 (Ala. 2007); Ex parte Reindel, 963 So. 2d 614 (Ala. 2007); Ex parte United Ins. Cos.,
936 So. 2d 1049 (Ala. 2006); Ex parte Bufkin, 936 So. 2d 1042 (Ala. 2006); Ex parte Fidelity
Bank, 893 So. 2d 1116 (Ala. 2004); Ex parte McInnis, 820 So. 2d 795 (Ala. 2001); Ex parte Paul
McLean Land Services, Inc., 613 So. 2d 1284 (Ala. 1993); Duke v. Young, 496 So. 2d 37 (Ala.
1986); Shrout v. Thorsen, 470 So. 2d 1222 (Ala. 1985).
23.

Plaintiffs allege that all Defendants (1) conspired to do the schemes set out here

and the steps outlined in the Factual Background section hereof and in the conspiracy count herein,
among other places in this Complaint, and such schemes were expressly aimed at the State of
Alabama and at impacting on Alabama Plaintiffs; (2) that the Defendants reasonably expected the
acts resulting from their conspiracy to lead to consequences in the State of Alabama and effects on

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Plaintiffs in Alabama; (3) that several of the co-conspirators committed specific and overt acts in
Alabama in furtherance of the conspiracy outlined herein; and (4) those acts were of a type which,
if committed personally in Alabama by a non-resident, would subject the non-resident to personal
jurisdiction under the long-arm statute of Alabama. In such conspiracies as are alleged herein, each
of the Defendants served as the agent of the other.
24.

Plaintiffs allege that in doing the acts and omissions herein alleged, each Defendant

and his or its co-conspirators, with respect to the acts or steps taken by each of them in connection
with the events described or referred to herein, both acted in concert and acted as the agent of the
other Defendants and co-conspirators, pursuant to a common goal or scheme to bring about the
business and transactions of the Plaintiffs with the Defendants in a setting where, unknown to the
Plaintiffs, the Defendants would carry out the wrongful activities and patterns of conduct herein
alleged and would conspire to conceal material aspects of the same, and each of the Defendants is
in some manner responsible as principals or under the doctrine of respondeat superior, or as
material participants in the sales of securities involved herein, for the matters complained of, in
that all the transactions and events and dealings described herein, and communications related
thereto, were chapters in, or parts of, a connected or interrelated fraudulent or deceptive set of
schemes and conspiracies, requiring steps and activities by each of the Defendants in order to make
the interrelated schemes and conspiracies work or be successful. At the times relevant to this
complaint, each Defendant and co-conspirator, in connection with the transactions, events and
dealings alleged herein, and the alleged violations and tortious conduct set forth herein:
a.

materially aided and acted in concert with the other Defendants;

b.

knew that the conduct of the other Defendants herein (including
omissions to act in the face of the situation then obtaining)

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constituted a breach of duty to the Plaintiffs and gave substantial
assistance or encouragement to each such Defendant to so conduct
himself or itself;
c.

gave substantial assistance and materially assisted each such other
Defendant in accomplishing the tortious or wrongful conduct and
such Defendant’s own conduct, separately considered, constituted
a breach of fiduciary duty to the Plaintiffs as set forth herein;

d.

induced the wrongful or tortious conduct and such Defendant knew
or should have known of the circumstances that would make the
conduct tortious if it were such Defendant’s own conduct;

e.

conducted its activities with the aid of other Defendants and was
negligent in employing or engaging or supervising the other
Defendants;

f.

controlled, or had a duty to use care to control, the conduct of the
other Defendants, who were likely to do harm if not supervised
and/or controlled, and failed to exercise care in the control; and/or

g.

had a duty to provide protection for, or to have care used for the
protection of the Plaintiffs and confided the performance of such
duty to other Defendants, and such Defendant caused, or failed to
avert, the tortious or wrongful conduct as set forth herein by failing
to perform such duty.

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25.

Venue is proper in this Court under ALA. CODE §§ 6-3-7(a)(1) and 6-3-2(a)(3) and

Ala. R. Civ. P. Rule 82, as well as the Securities Act of Alabama, because some of the material
acts or omissions or conduct complained of occurred in Jefferson County, Alabama.
26.

There is no arbitration agreement (and has never been any agreement to arbitrate

disputes) between any of the Plaintiffs and any Defendant governing the claims asserted herein.
FACTUAL ALLEGATIONS
27.

Defendant Gilbert is the founder of Defendant Trina Health, LLC. Defendant

Gilbert claims to have developed a pump to work in conjunction with a specific method of therapy
called Artificial Pancreas Treatment (APT) to treat both Type I and Type II diabetes.
28.

Defendant Trina Health, LLC claims to be “licensed to be the commercial clinic

incubator of clinics delivering APT since 1984.”
29.

Defendant Gilbert also formed Bionica, Inc. which licenses Gilbert’s purported

patent to make the “Bionica Microdose and successor devices for the delivery of APT.”
30.

Defendants contend that the Bionica Microdose Infusion Device, is patented and is

an FDA approved medical device.
31.

According to its website, TRINA claims to operate approximately 22 APT clinics

around the country.
32.

Defendant Trina Health Care Partners, LLC was formed in February of 2015. In

2015, Defendants Gilbert and Burbage through TRINA undertook to raise equity capital by means
of an offering of 150 units of its stock, without registration under the state and federal securities
law, in reliance on a federal Securities Act exemption procedure under SEC Rule 506 (a so-called
“private placement” offering). The purpose of this offering was to “obtain sufficient funding to
equip and operate one clinic using the APT” process.

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33.

These 150 units constitute 35% of Defendant Trina Health Care Partners, LLC’s

equity in units.
34.

For purposes of making offers and sales of the units, TRINA and Defendants

Gilbert and Burbage, for the Issuer, caused to be issued a so-called Offering Memorandum and an
Addendum to such Offering Memorandum (together, the “PPM”).
35.

Defendants Gilbert and Burbage spoke with and made web presentations to

prospective Alabama investors on several occasions in 2015, and provided such Alabama investors
with stock sales presentations on TRINA, including the PPM, PowerPoint type presentations about
TRINA and APT, literature discussing FDA approval of TRINA APT process and the Bionica
pump, financial pro forma, financial statements of TRINA, written and oral information about
TRINA’s business model, explanation of benefits for other TRINA Health Clinics,
insurance/Medicare reimbursements, and APT’s superiority over all other diabetes treatments.
Plaintiffs, separately or together, had other calls and/or meetings with Gilbert and/or Burbage prior
to their purchases.
36.

At the time such statements were made, Defendants were aware that Defendants

Gilbert, Trina Health, LLC, and Bionica, Inc., were named-defendants in a lawsuit filed in 2011
by Thomas T. Aoki, M.D. and Aoki Diabetes Research Institute for patent infringement related to
Gilbert’s Bionica pump, among other claims. The PPM only states “there is currently a dispute
with one of the inventors over the terms of our licenses, and the range of royalties is from 5% to
0%, which is not yet decided.” The PPM fails to state that this lawsuit seeks to enjoin Defendants
Gilbert, Trina Health, LLC, and Bionica, Inc., and any other TRINA related entity from using the
Bionica pump and disgorging any profits associated with the Bionica pump.

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37.

In addition to holding such meetings, calls and communications in Alabama,

TRINA (under the control of Gilbert and Burbage) caused to be prepared and delivered to Plaintiffs
in Alabama, the following documents, along with the stock subscription forms and agreements:
a.

PPM dated March 22, 2014 and revised on April 1, 2015, described
above;

b.

PowerPoint presentations about TRINA and the APT process;

c.

Financial pro forma;

d.

Explanation of benefits (EOB) for other TRINA clinics;

e.

License Agreement between THCP Bham AL 1, LLC and Trina
Health, LLC

38.

The PPM states “Trina Health clinics are receiving payments by Medicare and

major Insurance companies.” PPM at page 28. The PPM goes further to state that reimbursement
from Medicare has “averaged about $550 per treatment day.” PPM at page 29. Among other
things, upon information and belief, Defendants failed to disclose that the actual amount collected
through Medicare reimbursement was closer to $192.00 per treatment day, an amount insufficient
to operate the clinic profitably.
39.

The PPM also failed to disclose Medicare had taken the position since 2009 that

the APT process which is performed at all TRINA Health clinics equates to “Outpatient IV Insulin
Therapy (OIVIT)” and that OIVIT is a “statutorily-excluded service for which Medicare does not
provide coverage”:
Effective December 23, 2009, CMS determines that the evidence does not
support a conclusion that OIVIT improves health outcomes in Medicare
beneficiaries. Therefore, OIVIT is not reasonable and necessary for any
indication under section 1862 (a)(1)A) of the Social Security Act, and
services comprising an OIVIT regimen are nationally non-covered under
Medicare when furnished pursuant to an OIVIT regimen.

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40.

The PPM also failed to disclose TRINA was forced to instituted legal proceedings

in California to obtained insurance coverage for APT and its clinics in that state.
41.

The PPM failed to disclose that at least one of the two clinics located in Fairhope

and Foley, Alabama, were being audited by Blue Cross Blue Shield of Alabama, the state’s largest
health insurer. BCBSAL ultimately denied APT coverage for both clinics.
42.

The PPM also states the APT process is “a patented treatment technology, using a

proprietary FDA cleared device.” In fact, APT is not patented and only the Bionica pump is
patented and has received FDA approval.
43.

The PPM, PowerPoint presentations, financial pro forma, included therein or

separately provided to the Plaintiffs, and on which Plaintiffs reasonably relied, all were materially
false and misleading. Among other things, such representations materially:
a.

Overstated the insurance and Medicare coverage/acceptance of
APT;

44.

b.

Overstated the insurance and Medicare reimbursements amounts;

c.

Understated the potential for litigation related to APT;

d.

Overstated the clinical tests and peer review of APT; and

e.

Failed to disclose that Medicare/health insurance denied coverage.

After receipt of, and in reliance upon, these materials, the Plaintiffs signed and paid

their subscription in June of 2015 for 150 units of TRINA, at a subscription purchase price of
$782,600.
45.

Defendants purportedly used the $782,600.00, to open and operate a TRINA Health

Clinic located at 3829 Lorna Road, Suite 312, Hoover, AL 35244.

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46.

Upon information and belief, this TRINA Health Clinic was required to enter into

a License Agreement and a Manufacturing and Supply Agreement with Defendant Bionica, Inc.
Upon further information and belief, this TRINA Health Clinic was required to purchase all of its
APT equipment and supplies from Defendant Bionica, Inc.
47.

Upon information and belief, the billing personnel for all TRINA Health Clinics is

contracted to Defendant Trina Health, LLC and receive 6% of collections “for which they provide
the billing and file maintenance/auditing services.”

Upon further information and belief,

Defendant Trina Health, LLC submits all billing on behalf all TRINA Health Clinic.
48.

None of the foregoing alleged oral and written offering documents and

presentations, sales materials, including without limitation the PPM, disclosed the following to
Plaintiffs:
a.

that

TRINA

did

not

have

insurance

or

Medicare

coverage/acceptance for APT;
b.

that Defendants were currently in patent infringement litigation
related to the Bionica pump and the APT process;

c.

that TRINA was forced to institute legal proceeding in California
in order to obtain insurance coverage for APT;

d.

that TRINA had a history of denials of coverage from insurance
companies and Medicare;

e.

that BCBSAL was auditing at least one of the two other TRINA
Health Clinics located in Alabama;

f.

that the financial pro forma was not in a trustworthy and sound
condition; and

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g.

that TRINA lacked a competent, experienced manager and
financial team;

49.

Because of Defendants’ concealment and continuing nondisclosure of material

adverse facts, as well as Defendants’ deliberate misrepresentations and deceptive conduct, the
Plaintiffs had no actual knowledge of, and did not actually discover, nor could they reasonably
have discovered, the Alabama Securities Act violations and wrongs alleged herein until less than
two years before filing this suit.
50.

All claims have been brought within their applicable statutes of limitation.
COUNT 1
Violations of the Securities Act of Alabama
ALA. CODE § 8-6-19(a)(2)

51.

Plaintiffs incorporate all preceding paragraphs by reference.

52.

Defendants offered or sold securities by means of untrue statements of material

facts or omissions to state material facts necessary in order to make the statements made, in the
light of the circumstances under which they were made, not misleading in violation of ALA. CODE
§ 8-6-19(a)(2).
53.

This count does not incorporate by reference any allegations of common law

“fraud,” as this count is based and grounded in strict liability; and it is legally unnecessary, in order
to prevail, for Plaintiffs to allege or prove common law-style “fraud,” “reliance,” “causation,” or
“scienter,” among other fraud-claim type elements.
54.

Plaintiffs tender their TRINA securities to Defendants.

55.

Pursuant to ALA. CODE § 8-6-19(a)(2), Defendants are liable to Plaintiffs for, and

the Plaintiffs hereby demand, the full amount of their combined investment, plus prejudgment
interest at 6% per annum, court costs and attorney’s fees.

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COUNT 2
Violations of Securities Act of Alabama
ALA. CODE §§ 8-6-19(a)(1) and 8-6-17
56.

Plaintiffs incorporate all preceding paragraphs by reference.

57.

Defendants, in connection with the offer, sale or purchase of the above-described

securities, did, directly or indirectly (i) employ devices, schemes or artifices to defraud; (ii) make
untrue statements of material facts and omit to state material facts necessary in order to make the
statements made, in the light of the circumstances under which they were made, not misleading;
or (iii) engage in acts, practices or courses of business which operated as a fraud or deceit on the
plaintiffs as more specifically described elsewhere herein, all in violation of ALA. CODE § 8-6-17.
58.

By violating § 8-6-17, the Defendants violated ALA. CODE § 8-6-19(a)(1).

59.

Plaintiffs tender their TRINA securities to Defendants.

60.

Pursuant to ALA. CODE §§ 8-6-19(a)(1) and 8-6-17, Defendants are liable to

Plaintiffs for, and Plaintiffs hereby demand, the full amount of their combined investment, plus
prejudgment interest at 6% per annum, court costs and attorney’s fees.
COUNT 3
Control Person Liability Under
ALA. CODE § 8-6-19(c)
(All Defendants)
61.

Plaintiffs incorporate all preceding paragraphs by reference.

62.

Pursuant to ALA. CODE § 8-6-19(c), “[e]very person who directly or indirectly

controls a person liable under [Count 1 or 2, above], including every partner, officer, or director
of such a person, every person occupying a similar status or performing similar functions, every
employee of such a person who materially aids in the conduct giving rise to the liability, and every
dealer or agent who materially aids in such conduct is also liable jointly and severally with and to
the same extent as the person liable under [Count 1 or 2, above]….”

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63.

By reason of their roles as partner, officer and/or director, or of having some similar

status, or by reason of their ownership interests, directly or indirectly, in TRINA, Individual
Defendants Gilbert and Burbage had the power to and did control (within the meaning of ALA.
CODE §§ 8-6-19(c) and 8-6-2(24)) TRINA. By reason of such status and direct or indirect control
of TRINA, Individual Defendants Gilbert and Burbage are jointly and severally liable for all
violations of ALA. CODE § 8-6-19(a).
64.

By reason of their roles as partner, officer and/or director, or of having some similar

status, or by reason of their ownership interests, directly or indirectly, in each other, Defendants
Trina Health Care Partners, LLC; Trina Health, LLC; and THCP Bham AL 1, LLC, had the power
to and did control (within the meaning of ALA. CODE §§ 8-6-19(c) and 8-6-2(24)) each other. By
reason of such status and direct or indirect control of each other, Defendants Trina Health Care
Partners, LLC; Trina Health, LLC; and THCP Bham AL 1, LLC are jointly and severally liable
for all violations of ALA. CODE § 8-6-19(a).
65.

Plaintiffs tender their TRINA securities to Defendants.

66.

Pursuant to ALA. CODE §§ 8-6-19(a)(1) and (2) and 8-6-19(c), Defendants are liable

to Plaintiffs for, and Plaintiffs hereby demand, the full amount of their combined investment, plus
prejudgment interest at 6% per annum, court costs and attorney’s fees.
Count 4
Fraud/Willful Misrepresentation
67.

Plaintiffs incorporate all preceding paragraphs by reference.

68.

Defendants made misrepresentations of fact in connection with the sale of the

above-described securities, both for the purpose of inducing Plaintiffs’ purchases of TRINA stock
and for inducing Plaintiffs to continue to hold such stock after it was purchased. At the time said

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 DOCUMENT 2

misrepresentations were made, said Defendants knew, or reasonably should have known, that
Plaintiff would rely on their misrepresentations.
69.

Said misrepresentations were made willfully or recklessly and with an intent to

deceive the Plaintiffs and with the requisite malice and scienter to support an award of punitive
damages.
70.

Plaintiffs, who were unaware of the true facts, reasonably relied on said

misrepresentations in reaching their investment decisions.
71.

As a direct and proximate consequence of Plaintiffs’ reliance on said

misrepresentations, Plaintiffs were injured through the loss of their entire investments in TRINA
stock.
COUNT 5
Omission & Suppression
72.

Plaintiffs incorporate all preceding paragraphs by reference.

73.

In connection with the sale of the above-described securities, Defendants

suppressed material facts which they were under an obligation to disclose both for the purpose of
inducing Plaintiffs’ purchases of TRINA stock and for inducing Plaintiffs to continue to hold such
stock after it was purchased. At the time said omissions of facts were made, said Defendants knew,
or reasonably should have known, that the omitted information was material to Plaintiffs’
investment decisions.
74.

Said omissions and suppressions of material fact were made willfully or recklessly

and with an intent to deceive the Plaintiffs and with the requisite malice and scienter to support an
award of punitive damages.

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75.

The Plaintiffs, who were unaware of the true facts, reasonably relied on said

material omissions in making their decisions to purchase TRINA stock and to continue to hold
such stock after purchase.
76.

As a direct and proximate consequence of Plaintiffs’ reliance on said material

omissions, Plaintiffs have been damaged through the loss of their entire investments in TRINA
securities.

COUNT 6
Negligent Misrepresentation and Omission
77.

Plaintiffs incorporate all preceding paragraphs by reference.

78.

Defendants owed Plaintiffs a duty: to use reasonable care to ensure that

representations made about the TRINA stock and its value, the finances of TRINA, and the
capabilities, the financial wherewithal and acumen of TRINA’s principals, were true; to refrain
from omitting material facts necessary to avoid misleading Plaintiffs; and to fairly and adequately
communicate all materials facts to Plaintiffs.
79.

Said Defendants directly and through their agents each failed to exercise reasonable

care in making accurate and timely representations about TRINA, its stock, its financial condition,
and reasonable financial prospects, both for the purpose of inducing Plaintiffs’ purchases of
TRINA stock and for inducing Plaintiffs to continue to hold such stock after purchase.
80.

At the time said misrepresentations and omissions of fact were made, said

Defendants knew, or should have known, that Plaintiffs would rely on their misrepresentations.
81.

Plaintiffs, who were unaware of the true facts, reasonably, foreseeably and

justifiably relied on said misrepresentations and omissions in reaching their investment decisions.

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 DOCUMENT 2

82.

As a direct and proximate consequence of Plaintiffs’ reliance on said

misrepresentations, Plaintiffs were injured through the loss of their entire investments in TRINA
securities.
COUNT 7
Innocent Misrepresentation
83.

Plaintiffs incorporate all preceding paragraphs by reference.

84.

The misrepresentations of material fact described herein, whether made willfully to

deceive, recklessly without knowledge, or if made by mistake, constitute legal fraud under ALA.
CODE § 6-5-101 by Defendants, so long as they were acted on by Plaintiffs.
85.

Such misrepresentations were made to Plaintiffs both for the purpose of inducing

Plaintiffs’ initial purchases of TRINA stock, and to induce Plaintiffs to continue to hold such stock
after it was purchased.
86.

The Plaintiffs, who were unaware of the true facts, reasonably, foreseeably and

justifiably relied on said misrepresentations in reaching their investment decisions.
87.

As a direct and proximate consequence of Plaintiffs’ reliance on said

misrepresentations, Plaintiffs were injured through the loss of their entire investments in TRINA
securities.
COUNT 8
Inducement To Maintain Position
88.

The preceding paragraphs of this Complaint, and any additional factual averments

set forth in any subsequent paragraphs or sections of this Complaint, are deemed to be repeated
and incorporated by reference in this Count.
89.

In addition to fraudulently inducing Plaintiffs to initially purchase TRINA stock,

Defendants thereafter fraudulently induced them to continue holding such TRINA stock in

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 DOCUMENT 2

violation of a number of applicable tort law principles in addition to Alabama common law and
ALA. CODE §§ 6-5-100 through 6-5-104, et seq., including the following:
a.

Restatement of Torts (Second), § 525: “One who fraudulently makes
a misrepresentation of fact, opinion, intention or law for the purpose
of inducing another to act or to refrain from action in reliance upon
it, is subject to liability to the other in deceit for pecuniary loss
caused

to

him

by

his

justifiable

reliance

upon

the

misrepresentation.” (Emphasis added.)
b.

Restatement of Torts (Second), § 531: “One who makes a fraudulent
misrepresentation is subject to liability to the persons or class of
persons whom he intends or has reason to expect to act or to refrain
from action in reliance upon the misrepresentation, for pecuniary
loss suffered by them through their justifiable reliance in the type of
transaction in which he intends or has reason to expect their conduct
to be influenced.” (Emphasis added.)

c.

Restatement of Torts (Second), § 551(1): “One who fails to disclose
to another a fact that he knows may justifiably induce the other to
act or refrain from acting in a business transaction is subject to the
same liability to the other as though he had represented the
nonexistence of the matter that he has failed to disclose....”
(Emphasis added.)

90.

Each of such Defendants either: (1) had material personal roles in devising and

implementing the frauds described herein; (2) approved or caused to be issued misleading

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 DOCUMENT 2

documents, reports and communications to Plaintiffs that have been described herein; (3)
personally benefited (directly and/or indirectly) from the frauds described herein; (4) occupied a
fiduciary position (including fiduciary disclosure obligations of an ongoing nature) and
management or control positions as regards passive investors in TRINA’s stock like Plaintiffs; (5)
occupied a vastly superior position of knowledge and access to relevant and material information
than Plaintiffs; (6) was or legally is responsible for the dissemination of false and misleading
reports and information to Plaintiffs in Alabama; (7) was under an obligation and affirmative duty
under the special circumstances of this case, and under statutory requirements of the Alabama
Securities Act and other laws which governed their conduct, respectively, to communicate (and/or
cause TRINA to communicate) all material facts to Plaintiffs and not to misrepresent facts and not
to tell “half-truths”; and (8) knew and expected that their false and misleading information, and
the omissions of material facts, would be conveyed to the Plaintiffs and TRINA’s stockholders in
Alabama. Each such defendant participated by agreement and otherwise in the schemes and
conspiracies of the other Defendants as to financing and operation of TRINA, and stood to benefit
therefrom.
91.

Said Defendants spoke (or controlled and caused or allowed other Defendants to

speak) half-truths and to suppress, conceal, and omit to disclose material facts which, under the
special circumstances of this case and under statutorily-imposed disclosure obligations, the
Defendants were under a duty to communicate truthfully and fully to Plaintiffs, which constitutes
fraud.
92.

Each of said Defendants has knowingly, willfully and/or recklessly deceived the

Plaintiffs through such secretive, misleading and omissive activity, and through conducting it or
participating in it or allowing it to occur.

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 DOCUMENT 2

93.

Said Defendants knew, or recklessly disregarded, or were reckless in not

knowing, of the misrepresentations of material fact and the omissions of material facts necessary
to make the statements made, in light of the circumstances under which they were made, not
misleading, that occurred in their communications with Plaintiffs, and said Defendants acted
knowing of, or recklessly disregarding the severe risk of, loss to the Plaintiffs that would be
proximately caused by said Defendants’ acts and omissions described herein.
94.

Said Defendants, who were in possession of the material undisclosed facts and

willfully or knowingly or recklessly concealed them, acting in concert and conspiracy, engaged in
the aforesaid omissive, and therefore deceptive and manipulative and fraudulent, acts, practices
and courses of business with the intent to take advantage of the position of inferior knowledge and
ignorance of the true facts on the part of the Plaintiffs, and in order to take advantage of fiduciary
positions held by various Defendants with respect to Plaintiffs, and with the intent to defraud the
Plaintiffs, and with a profit-seeking motive on the Defendants’ part.
95.

Plaintiffs did not know, when Plaintiffs invested in the TRINA’s stock, or at any

time until less than two years before this suit was filed, about the material misrepresentations and
undisclosed facts which are the basis of and are described in this Complaint, because no such
disclosure was anywhere ever made, and thus the Plaintiffs justifiably and reasonably relied on
such representations and on Plaintiffs absence of knowledge of such undisclosed facts.
96.

By reason of the facts, relationships, duties to speak and disclose, and other special

circumstances alleged herein, Defendants, acting in concert and conspiracy with each other,
negligently, innocently, recklessly, wantonly, or intentionally failed in said duties of candor and
disclosure, and induced Plaintiffs to buy, keep and/or maintain its positions in TRINA’s stock
which proximately caused Plaintiffs’ losses sued upon here.

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 DOCUMENT 2

COUNT 9
Breach of Fiduciary Duty
97.

Plaintiffs incorporate all preceding paragraphs by reference.

98.

TRINA is a closely-held business.

99.

TRINA and its Defendant officers and directors and controlling persons undertook

fiduciary duties to Plaintiffs to act with the utmost care, skill and diligence in the operation of
TRINA, including the duty to keep the Plaintiffs timely and accurately informed of all material
facts related to their investment in and the operation of TRINA.
100.

TRINA, Gilbert and Burbage directly or through their chosen agents failed to

exercise the requisite care, skill and diligence in performing their duties for or on behalf of
Plaintiffs and therefore breached their fiduciary duties owed to Plaintiffs and/or aided and abetted
other’ breaches of fiduciary duty owed to Plaintiffs.
101.

TRINA’s, Gilbert’s and Burbage’s breaches of fiduciary duty have directly and

proximately caused Plaintiffs to suffer damages via the loss of their investment in TRINA.
COUNT 10
Civil Conspiracy to Defraud
102.

Plaintiffs incorporate all preceding paragraphs by reference.

103.

As stated more fully in Counts 4 through 7, the misrepresentations of facts along

with the suppression of material facts which Defendants were under an obligation to disclose,
made in connection with the sales of the above-described securities, both for the purpose of
inducing Plaintiffs’ purchases of TRINA stock and for inducing Plaintiffs to continue to hold such
stock after it was purchase, was accomplished through a conspiracy to defraud amongst
Defendants Trina Health Care Partners, LLC; Trina Health, LLC; THCP Bham AL 1, LLC;
Bionica, Inc.; G. Ford Gilbert; and Charles F. Burbage.

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 DOCUMENT 2

104.

The object of the conspiracy was achieved to the detriment of the Plaintiffs.
COUNT 11
All Counts – Fictitious Party Defendants

105.

Plaintiffs incorporate all preceding paragraphs by reference.

106.

Plaintiffs hereby alleges violations of the Securities Act of Alabama, fraud, willful

misrepresentation,

omission

and

suppression,

negligent

misrepresentation,

innocent

misrepresentation, inducement to maintain position, breach of fiduciary duty, and civil conspiracy
to defraud, and any and all other theories of liability, whether in tort or contract, that are referenced
in the body of this Complaint or in the style and caption of this Complaint against all fictitious
party defendants, whether named or unnamed. The Plaintiffs are unaware of the true names or
identities of these parties. They will be added by amendment when ascertained.
PRAYERS FOR RELIEF
WHEREFORE, Plaintiffs pray for relief and judgment, as follows:
A. On Counts 1, 2 and 3 (Alabama Securities Act), against all
Defendants herein, respectively and jointly and severally, for
rescission (to the extent the TRINA Stock is still held, which it is
as of this date) and/or damages by statutory formula according to
proof at trial (in the event TRINA’s Stock is not held at the time
of judgment), of not less than the aggregate amounts paid for the
TRINA’s Stock, plus 6% per annum statutory interest on all of the
foregoing from the dates of investment of each such TRINA’s
Stock purchase to the date of judgment, and reasonable attorneys’
fees and costs as provided by statute. Plaintiffs tender such

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 DOCUMENT 2

TRINA’s Stock, to the extent now held, in order to effectuate
rescission.
B. On Counts 4-8 (fraud; negligent/innocent misrepresentation;
suppression; inducement to maintain position), against the
Defendants named in each such count, jointly and severally, for
damages according to proof at trial (but not less than the aggregate
amounts paid for TRINA’s Stock), for prejudgment interest on the
detention of money due to be refunded to Plaintiffs (see also § 88-8, ALA. CODE), and where appropriate, for punitive or
exemplary damages in the amount of not less than three (3) times
the compensatory damages of the Plaintiffs, according to proof at
trial. Plaintiffs also pray for costs and other relief.
C. On Count 9 (breach of fiduciary duty), against Defendants named
in such count, jointly and severally, for damages according to
proof at trial (but not less than the aggregate amounts paid for
TRINA’s Stock, plus unpaid dividends due on the TRINA Stock),
for prejudgment interest on the detention of money due to be
refunded to Plaintiffs (see also § 8-8-8, ALA. CODE).
D. On Count 10 (civil conspiracy to defraud) against the Defendants
named in each such count, jointly and severally, for damages
according to proof at trial (but not less than the aggregate amounts
paid for TRINA’s Stock), for prejudgment interest on the
detention of money due to be refunded to Plaintiffs (see also § 8-

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 DOCUMENT 2

8-8, ALA. CODE), and where appropriate, for punitive or
exemplary damages in the amount of not less than three (3) times
the compensatory damages of the Plaintiffs, according to proof at
trial. Plaintiffs also pray for costs and other relief.
E. Plaintiffs pray for such other and further relief, including without
limitation declaratory, specific performance, and/or injunctive
relief, as may be appropriate, premises considered.

JURY DEMAND
Plaintiffs demand a trial by struck jury.

Respectfully submitted,

/s/ Dawn Stith Evans
David J. Guin
Dawn Stith Evans (STI017)
GUIN, STOKES & EVANS, LLC
The Title Building
300 Richard Arrington Jr. Blvd North
Suite 600
Birmingham, AL 35203
(205) 226-2282 (telephone)
(205) 226-2357 (fax)
davidg@gseattorneys.com
devans@gseattorneys.com
Attorneys for Plaintiffs

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 DOCUMENT 2

PLEASE

SERVE

THE

FOLLOWING

DEFENDANTS

INITIALLY

BY

CERTIFIED MAIL AT THE RESPECTIVE ADDRESSES STATED HEREIN
AND/OR SET OUT IN THE SUMMONSES AND RELATED CERTIFIED MAIL
PACKAGES.

PLAINTIFFS

RESERVE

THE

RIGHT

TO

SERVE

THE

FOLLOWING DEFENDANTS ADDITIONALLY VIA ALIAS SUMMONS, BY
PUBLICATION, BY PROCESS SERVER, AND BY ANY OTHER MEANS
AVAILABLE UNDER APPLICABLE RULES, AND ANY SUCH ADDITIONAL
SERVICE SHALL NOT BE DEEMED A STATEMENT THAT THE INITIAL
CERTIFIED MAIL SERVICE LACKED EFFICACY.
Trina Health Care Partners, LLC
c/o Mitchell E. Osborn, Registered Agent
255 Storey Blvd.
Cheyenne, WY 82009

Trina Health, LLC
c/o EASTBIZ.COM, INC., Registered Agent
5348 Vegas Drive
Las Vegas, NV 89108

THCP Bham AL 1, LLC
c/o Mitchell E. Osborn, Registered Agent
255 Storey Blvd.
Cheyenne, WY 82009

Bionica, Inc.
c/o EASTBIZ.COM, INC., Registered Agent
5348 Vegas Drive
Las Vegas, NV 89108

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 DOCUMENT 2

PLEASE SERVE THE FOLLOWING DEFENDANTS INITIALLY BY PROCESS
SERVER.

PLAINTIFFS RESERVE THE RIGHT TO SERVE THE FOLLOWING

DEFENDANTS ADDITIONALLY VIA ALIAS SUMMONS, BY PUBLICATION, BY
CERTIFIED MAIL,

AND BY

ANY

OTHER MEANS

AVAILABLE

UNDER

APPLICABLE RULES, AND ANY SUCH ADDITIONAL SERVICE SHALL NOT BE
DEEMED A STATEMENT THAT THE INITIAL SERVICE BY PROCESS SERVER
LACKED EFFICACY.
Gregory Ford Gilbert
Law Offices of Gregory Ford Gilbert
5112 Bailey Loop Road
McClellan, CA 95652
Charles F. Burbage
3366 Raes Creek Road
Marietta, Georgia 30008

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