AFFIDAVIT OF EMILE . My name is Emile Clavet. I make the statements in this Af?davit from my own personal knowledge, except where I expressly indicate the statements are made on information and belief, in which case I believe the statements to be true based on documents I have reviewed or information I have received from persons with direct knowledge of the matters in question. . Kevin Dean and I have operated as business partners for over three decades. . Over the course of our business relationship, we have co-founded and equally co-owned dozens of companies involved in a wide variety of industries and business sectors. . We routinely decided which of us would take on primary management responsibility for any particular project, and split management responsibility as to projects that called for two primary managers. . We each relied on the other to keep us accurately apprised of the ?nances and business circumstances affecting the companies the other was principally managing, and each understood the other was relying on him to keep the other informed of all information affecting the value of our investments. . Among the companies we co-owned, Kevin and I owned in equal 50% shares two limited liability companies, Blue Water Marina LLC and Covered Marina LLC (the ?Marina Companies?). These companies were principally engaged in the ownership and operation of marina property and boat slips in Port Aransas, Texas, a community in the Corpus Christi area. While we were both member-managers, these were two of the entities under Kevin?s principal management. Kevin had the ?nancial bookkeeping for these companies kept in Texas and, unlike our other companies, I did not regularly see the records for these companies. . Over the years, I discussed with Kevin my view that we should sell the Marina Companies, and that we should explore whether the adjacent owners of a residential real estate development or other local real estate developers had interest in acquiring the companies, since the boat slips seemed to be a natural value-add for nearby residential real estate. Kevin told me he wanted to hold on to the companies. Kevin had his sister working as the office manager and his brother-in-law working as the manager of docks operations for the marinas, and Kevin had expressed a longer?term desire to retire to the Corpus Christi area. . On September 15, 2016, Kevin sent me a text message, a copy of which is attached hereto as Exhibit A. Kevin told me the ?nancial situation of the marinas was dire, that the lenders would require my wife and me to post personal guarantees over the marinas? credit facilities, and he suggested the alternative of buying my interest. . In our further discussions over the following days, Kevin suggested that, in light of the poor ?nancial condition of the marinas, the fair value of the marinas would be the $2.5 million we originally paid for them, minus the outstanding debts of the marinas, which we agreed to value at $320,000. 10. We agreed to a purchase of my membership interest at the net value of $1,090,000, payable by Kevin with $200,000 cash at closing and the remaining $890,000 payable over time. To date, Kevin has paid all but $112,500 of that remaining obligation. Kevin paid the $200,000 closing cash on or about September 26, 2016. At the time we were discussing and ultimately agreed upon the sale of my membership interests to Kevin, Kevin had not told me, and I was not aware, that he was in active negotiations with representatives of TCRG Opportunity X, L.L.C. (the ?Buyer? or to sell the Buyer all the non- cash assets of the Marina Companies. I understand TCRG is a limited liability company owned directly or indirectly by Bobby Patten, a well- known wealthy investor who owns, among other things, the LA. Dodgers major-league baseball franchise. Attached hereto as Exhibit B, is a copy of the purchase and sale agreement for those assets that Kevin executed with representatives of the Buyer on or about October 5, 2016. The purchase price for the marina assets was $7 .9 million, far in excess of the $2.5 million or less Kevin told me was a fair value, pre-debt, of the Marina Companies. I am informed by representatives of the Buyer, and I believe, that they had sent a draft of this purchase and sale agreement, with the stated purchase price, on September 16, 2016. I believe based on the foregoing information that Kevin wanted our agreement on the sale of my membership interest made effective January 1, 2016, because he was representing to the Buyer that he was the sole owner of the LLC that owned the assets he was selling. in my business experience, for a purchase and sale agreement to have been executed on October 5, 2016 at the stated price, negotiations for that purchase would have been well under way prior to September 15business experience, for a purchase and sale agreement to have been executed on October 5, 2016 at the stated price, Kevin would have had to been making representations to the Buyer prior to September 15, 2016 that were directly contrary to his representations to me that the condition of the marinas was dire and that the pre-debt fair value of the Marina Companies was $2.5 million or less. In my business experience, for a purchase and sale agreement to have been executed on October 5, 2016 at the stated price, Kevin would have produced to the Buyer prior to September 15, 2016, due diligence materials that supported a valuation of the Marina Companies far higher than $2.5 million. If Kevin had told me on September 15, 2016 that a purchaser was interested in the non-cash assets of the Marina Companies for $7.9 million and that negotiations were in the advanced stages, with a draft of a purchase and sale agreement prepared, 1 would not have agreed to sell him 17. 18. 2 my interest in the Marina Corn value of those Companies was (which the Buyer was minus its debt. If Kevin had told me on September 15, 2016 the same information he was telling the Buyer?s representatives to justify a $7.9 million purchase price of the non-cash assets, I would not have agreed to sell him my interest in the Marina Companies, nor would I have agreed that the fair value of those Companies was less than the value of its non-cash assets (which the Buyer was going to buy for $7.9 million), plus its cash on hand, minus its debt. As a result of learning of Kevin?s deceptions in connection with the Marina Companies, I have recently reviewed the Quickbooks ?les, used for the regular bookkeeping of the Marina Companies, for the relevant time period. Those files show the Companies had cash on hand of approximately $320,000 and nearly equal to the amount of their outstanding loans. If Kevin had told me the Companies? cash position was nearly equal to the amount of its outstanding loans, I would have questioned more closely his claim that the lenders were requiring my wife and me to post personal guarantees in order to continue to extend credit to the Marina Companies. Based on my business experience, such guarantees would not have been necessary in those circumstances in order for the Companies to continue to access credit - if not from their existing lenders, then from competing lenders. 22. Kevin cheated me out of over $2.7 million by misrepresenting the value of the Marina Companies and withholding material information about their value, principally information about the negotiations with the Buyer, when we agreed on my selling Kevin my membership interest in those Companies. Although he represented and we agreed that the value of the Company was $2.18 million million for its assets minus its debt of $320,000), in fact, the value of the Company was $7.9 million million for the non-cash assets, as agreed with the Buyer, plus its approximately $320,000 in cash, minus its $320,000 in debt), a difference of $5.72 million. By his misrepresentations, Kevin deprived me of half of that difference - or $2.86 million - allocable to my half of the interests in the Company, which I sold to him. Based on the true information Kevin withheld from me, the proper calculation of the purchase price we had conceptually agreed to (namely, half the asset value of the Company minus half its $320,000 debt) was $3.95 million, as opposed to the $1.09 million we agreed to based on his misrepresentations. 23. Since the sale of the Marina assets, Kevin has told me that he transferred ownership of the Marina Companies to his wife, Cecile Dean, also a defendant in this action. 24. have learned that Covered Marina LLC acquired by deed a commercial property in Windham, Maine, by deed recorded on March 27, 2017 in the Cumberland County Registry of Deeds at Book 33901 Page panics, nor would 1 have agreed that the fair . less than the value of its non-cash assets gomg to buy for $7.9 million), plus its cash on hand, 19. 20. 21. 3 267, and subsequently mortgaged the property for $3.45 tnillion to Franklin Savings Bank, by a mortgage recorded on April 10. 2017 in the Cumberland County Registry of Deeds at Book 33931 Page 1. 25. I have learned that Blue Water Marina LLC engaged in a like-kind exchange under Section 1031 of the Internal Revenue Code for the acquisition of a commercial property in Auburn, Maine, by deed recorded in the Androscoggin County Registry of Deeds at Book 9601 Page 95, and mortgaged that property also to Franklin Savings Bank. 26. I am concerned that these transactions and mortgages are being used to try to remove from the Marina Companies the cash proceeds of the sale of the Marina company assets in the TCRG transaction 50% of which proceeds Kevin fraudulently deprived me of and rightfully belong to me. 27. Following the transaction with TCRG, the Marina Companies had no assets other than cash, and the properties involved in the aforementioned deeds all constitute proceeds of the fraudulent transaction by which Kevin Dean tried to deprive me of my rightful 50% share of the value of the Marina Company assets he sold to TCRG. DATED: November 30, 2017. STATE OF MAINE CUMBERLAND, 83. Before me, this 3 day of November, 2017, Emile Clavet personally appeared before me and swore that the foregoing statements are true based on his personal knowledge, except where made on information and belief, in which case he believes them to be true. we Notary Public BRITTANY AXELSEN Notary Public. Stale of Maine My Commission Expires February 21. 2021 4 10R COURT CUMBERLAND, ss DOCKET NO. CV I 7_ EMILE CLAVET, V. KEVIN DEAN and CECILE DEAN, Defendants And BLUE WATER MARINA LLC and COVERED MARINA LLC, Parties in Interest Plaintiff COMPLAINT NOW COMES the Plaintiff, Emile Clavet, by and through his undersigned counsel and for his complaint against the Defendants states as followsPARTIES . Emile Ciavet is an individual residing in Harpswell, Maine. Kevin Dean and Cecile Dean are husband and wife, residing in fv'mdham, Maine. . Cecile Dean is a licensed Maine commercial real estate broker. . Kevin Dean and Emile Clavet founded Parties-in-Interest Blue Water Man?na LLC and Covered Marina LLC (hereinafter ?the Marina Companies?). Blue Water Marina LLC is a Maine limited liability company with a principal of?ce in Maine. . Covered Marina LLC is a Texas limited liability company with a principal of?ce in Maine. Covered Marina directs its operations from its principal of?ce in Maine. . Covered Marina maintains one or more bank accounts in Maine. . Covered Marina?s managers are located in Maine. 0. Covered Marina owns commercial property in Maine and leases that property to one or more tenants. Covered Marina conducts real estate investment activities in Maine. 125cm cum (mics m: mu FACTUAL BAC KGROU ND 12 Mr. Dean and Mr. Clavet have operated as business partners for decades, co-owning dozens of LLCs and other interests over the years. 13. Mr. Dean and Mr. Clavet routinely decided which of them would take on primary management responsibility for any particular project, and split management responSIbihty as to projects that called for two primary managers. . 14. In 2016, Emile Clavet and Kevin Dean co-owned the Manna Companies equally. 15. At the time, Mr. Dean carried out the principal duties of the manager of the Marina Companies. 16. During 2016, Mr. Dean engaged in negotiations w1th representatives of TCRG Opportunity X, LLC (hereinafter or ?the Buyer?), for the acquisition of the assets of the Marina Companies. TCRG is owned directly or indirectly by Bobby Patton, a wealthy and well-known real?estate investor who owns the L.A. Dodgers major-league baseball franchise. 17. At the time, Mr. Dean did not inform Mr. Clavet of the negotiations. 18. By September 2016, Mr. Dean?s negotiations with TCRG had progressed to the point that the parties had reached basic terms for a sale of such assets. 19. On or about September 15, 2016, the Buyer?s representatives sent Mr. Dean a draft of a purchase and sale agreement for the assets of the Marina Companies, exclusive of the Companies? cash. 20. The proposed purchase price was approximately $7.9 million. 21. At that time, the Marina Companies had approximately $320,000 in debt and had an approximately equal amount of cash on hand. At the same time, Mr. Dean discussed buying Mr. Clavet?s share of the Marina Companies. During those discussions, Mr. Dean did not disclose that the Buyer was interested in buying the non-cash assets of the Marina Companies for close to eight million dollars. On September 15, 2016, the same date that he received the aforementioned draft purchase and sale agreement from the Buyer?s representatives, Mr. Dean told Mr. Clavet that the Marina Companies? ?nancial situation was dire, that its lenders would require Mr. Clavet and his wife both to post personal guarantees on the Marina Companies? credit facilities, and suggested that he buy Mr. Clavet?s interest in the Marina Companies. 22. 23. 24. - y, "77m, - -y -. g. ., wig-j,? - w. 5'33"; 25. Mr. Dean informed Mr. Clavet that $2-5 million the amount they initially had paid for the Marina Companies was a fair pre? debt value for the Marina Companies. 26. Mr. Clavet and Mr. Dean agreed to a sale of Mr. Clavct's interests in the Marina Companies to Mr. Dean, for half the proposed $2.5 million valuation, net of half of a $320,000 loan balance, for a total of $1,090,000, payable by Mr. Dean with $200,000 cash at closing and the remaining $890,000 payable over time. 27. Had Mr. Dean disclosed the Buyer?s interest and the discussions the Buyer was in with the Marina Companies, Mr. Clavet would not have agreed to sell his interests to Mr. Dean at the price they agreed to. 28. Mr. Dean and Mr. Clavet closed their agreement on or about September 30, 2016, and by agreement made it retroactively effective as of January 1, 2016, per Mr. Dean?s request. 29. On October 5, 2016, Mr. Dean and the Buyer executed a purchase and sale agreement for the Buyer?s purchase of the Marina Companies? non-cash assets for approximately $7.9 million, to be paid at a later closing. That agreement has been subsequently amended to deal with ongoing transfer issues. 30. To date, Mr. Dean?s payments to Mr. Clavet have totaled $977,500. 31. Following the sale of the Marina Companies? non-cash assets to the Buyer, Mr. Dean has arranged for those Companies to acquire other assets; has structured like-kind exchanges involving those Companies under Section 1031 of the Internal Revenue Code; has transferred proceeds of the sale of assets out of the Marina Companies to himself, to his wife, to Lewiston Junction Road LLC, or to other entities he owns or controls; and has transferred all of his ownership interest in the Companies to his wife, Cecile Dean. 32. In his management of the Marina Companies during the period of his co?ownership with Mr. Clavet, Mr. Dean diverted funds of the Companies to his personal use, without Mr. Clavet?s knowledge or consent, and without a proper accounting of those funds, with the result that he deprived Mr. Clavet of benefits he was entitled to out of his 50% ownership in the Companies. COUNT I - FRAUD 33. Plaintiff repeats and realleges the allegations of all the foregoing paragraphs of this Complaint. 34. Mr. Dean supplied false information to Mr. Clavet, including falsely telling Mr. Dean that the Marina Companies? finances were dire, that they had insuf?cient funds in light of their debt and that their lenders were requiring that Mr. Clavet and his wife provide personal guarantees for the Marina Companies? credit facilities. Mr. Dean withheld material information from Mr. Clavet, including the information that there were ongoing negotiations for the sale of the Marina Companies? non-cash assets, that the Buyer was offering to pay millions of dollars more for the Marina Companies? non-cash assets than the $2.5 million that he and Mr. Clavet intitially had paid, and that the negotiations had reached the point of a draft purchase and sale agreement. Mr. Dean owed Mr. Clavet a duty to disclose that information to him, and his withholding of that information constituted a misrepresentation. Mr. Dean?s misrepresentations by statement and omission were made intentionally and with knowledge of their falsity or in reckless disregard of their falsity and for his personal bene?t. 38. Mr. Dean?s misrepresentations by statement and omission were made with the intention or reasonable expectation that Mr. Clavet would rely on them, and the purpose of those misrepresentations was to induce Mr. Clavet?s reliance on them. Mr. Clavet in fact relied on those misrepresentations in deciding to sell his interest in the Marina Companies to Mr. Dean at the price they negotiated, and his reliance was justi?able. 40. Had Mr. Dean not made such misrepresentations, Mr. Clavet would not have sold his interest in the Marina Companies to Mr. Dean at the price they negotiated but instead would have retained his interest or sold it in exchange for a price re?ective of the true value based on the Buyer?s purchase of the Companies? assets. 41. Mr. Dean?s misrepresentations to Mr. Clavet were made out of ill will toward Mr. Clavet; in his greed, Mr. Dean purposefully set out to take for himself money he knew rightfully belonged to Mr. Clavet. Mr. Dean?s misrepresentations were so outrageous that malice toward Mr. Clavet is implied. 35 36. 37. 39. 42. COUNT II - BREACH OF FIDUCIARY DUTY Plaintiff repeats and realleges the allegations of all the foregoing paragraphs of this Complaint. As manager and 50% member of the Marina Companies, Mr. Dean owed Mr. Clavet ?duciary duties of care, loyalty and good faith in the operation of those Companies and in the disposition of their assets and distribution of their pro?ts. 45. Mr. Dean?s misrepresentations, purchase of Mr. Clavet?s interests for less than fair value, and his diversions of funds all 43. 44. were done in breach of the foregoing duties to Mr. Clavet and caused Mr. Clavet harm. COUNT NEGLIGENT MISREPRESENTATION 46. Plaintiff repeats and realleges the allegations of all the foregoing paragraphs of this Complaint. In the course of his business, profession or employment, and in connection with a transaction in which he had a pecuniary interest, Mr. Dean supplied false information for the guidance of Mr. Clavet in his business transactions. Mr. Dean failed to exercise reasonable care or competence in obtaining or communicating the information he supplied Mr. Clavet. In the exercise of due care, Mr. Dean should have known the information he was supplying was false. Mr. Clavet justifiably relied to his detriment on such false and misleading information. As a proximate result of the foregoing negligent misrepresentations, Mr. Clavet suffered substantial damages. 47. 48. 49. 50. COUNT IV - UNJUST ENRICHMENT 51. Plaintiff repeats and realleges the allegations of all the foregoing paragraphs of this Complaint. Mr. Clavet conferred bene?ts on Mr. Dean, including transfer to Mr. Dean of Mr. Clavet?s membership interest in the Marina Companies, as well as proceeds of the pro?ts of those Companies. Mr. Dean appreciated or had knowledge of those bene?ts. Mr. Dean has accepted and retained those bene?ts by, among other things, taking more than his rightful share of distributions attributable to the Marina Companies during the period of co-ownership with Mr. Clavet; disposing of assets of the Marina Companies and retaining the proceeds of such dispositions without sharing the proceeds with Mr. Clavet; and by transferring membership interests wrongfully acquired from Mr. Clavet to his wife, Cecile Dean. Mr. Dean?s acceptance and or retention of those benefits was under circumstances that make it inequitable for him to retain the bene?ts without payment of their value. 52. 53. 54. 55. COUNT CONSTRUCTIVE TRUST 56. Plaintiff repeats and realleges the allegations of all the foregoing paragraphs of this Complaint. Mr. Dean acquired title to Mr. Clavet?s membership interest in the Marina Companies by fraud. 57. 58. Mr. Dean acquired title to Mr. Clavct?s membership interest in the Marina Companies through breach of his fiduc1ary duties. 59. Mr. Dean transferred ownership of the Marina Companies to his wife, Cecile Dean. 60. Mrs. Dean is not a bona ?de purchaser of those interests for value and without notice of Mr. Dean?s wrongful acquisition of them. 61. In order to prevent inequity and unjust enrichment, it is necessary to impose a trust on Mr. Dean?s and Mrs. Dean?s ownership and or possession of the membership interests in the Marina Companies and all traceable proceeds of the sale of any assets of the Marina Companies, all for the bene?t of Mr. Clavet, in prOportion to his original 50% ownership of the Marina Companies. COUNT VI - FRAUDULENT TRANSFER 62. Plaintiff repeats and realleges the allegations of all the foregoing paragraphs of this Complaint. 63. At the time Mr. Dean transferred ownership of the Marina Companies to Mrs. Dean, Mr. Clavet had a right to payment from Mr. Dean for the fair value of his membership interest in the Marina Companies or for return of his membership interest in the Marina Companies. 64. Mr. Dean transferred ownership of the Marina Companies to Mrs. Dean with an actual intent to hinder, delay or defraud Mr. Clavet with respect to his right to payment, within the meaning of 14 M.R.S.A. 3575. 65. Mrs. Dean did not take transfer of the interests in good faith or for reasonably equivalent value. COUNT VII - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY 66. Plaintiff repeats and realleges the allegations of all the foregoing paragraphs of this Complaint. 67. Defendant Cecile Dean knew or should have known that Mr. Dean was acting in breach of his ?duciary duties to Mr. Clavet. 68. Ceclie Dean encouraged, aided and participated in Mr. Dean?s actions in breach of his ?duciary duties to Mr. Clavet. 69. Cecile Dean?s aiding and abetting Mr. Dean in his breaches of ?duciary duty to Mr. Clavet have caused Mr. Clavet substantial damages. 70. Cecile Dean?s aiding and abetting Mr. Dean in his breaches of ?duciary duty to Mr. Clavet were committed with malice toward Mr. Clavet or were so outrageous that malice toward him can be implied. Plaintiff requests the Court: enter judgment in his favor on all counts of the Complaint; award Plaintiff compensatory damages in an amount to be proved at trial against both Defendants, with interest and costs of suit; award Plaintiff statutory double damages against both defendants in accordance with Maine?s Uniform Fraudulent Transfer Act; award Plaintiff punitive damages for Defendants? tortious acts committed with actual or implied malice; order Defendants to give an accounting of all transactions involving the ownership interests in the Marina Companies, of all transactions involving the assets of the Marina Companies, and of all transactions involving the proceeds of any transfer of membership interests in or assets of the Marina Companies; impose a constructive trust in favor of Plaintiff on one half the membership interests in the Marina Companies and one half of the traceable proceeds of the sale of the Marina Companies? assets; enjoin Defendants from making any further transfer of the membership interest in the Manna Companies; appoint a receiver to take charge of the interests in and assets of the Marina Companies; award Plaintiff such other and further relief as the Court deems just in the premises. DATED: November 17, 2017 Clifford H. Ruprecht, Bar No. 8714 ROACH HEWITT RUPRECHT SANCHEZ 81. RC. 66 Pearl Street, Suite 200 Portland, ME 04101 (207) 747?4870 cruprechtr'a Attorneys for PlaintijfEmile Clavet