STATE OF MAINE CUMBERLAND, ss EMILE Plaintiff KEVIN DEAN and CECILE DEAN Defendants I And BLUE WATER MARINA LLC and COVERED MARINA LLC Parties in Interest SU PERIOR COU DOCKET NO. 17 CV 452 AMENDED MOTION FOR ATTACHMENT, ATTACHMENT ON TRUSTEE PROCESS AND PRELIMINARY RELIEF CUMB DEC 13 ?17 9942244 NOW COMES the Plaintiff, Emile Clavet, by and through his undersigned counsel and seeks attachment and attachment on trustee process to help secure collection of judgment in this case, as well as related preliminary relief to preserve the status quo pending resolution of the disputes raised in this lawsuit. As a general overview, Plaintiff brings this lawsuit to remedy a fraud. Defendant Kevin Dean, by a scheme of misrepresentation, obtained Mr. Clavet?s 50% ownership of the companies named as Parties in Interest (the ?Marina Companies?). Mr. Clavet seeks payment of damages or restitution and as an alternative a constructive trust over the proceeds of that fraud. As described in the Complaint and in the Af?davit of Emile Clavet accompanying this Motion, Mr. Dean told Mr. Clavet that the Marina Companies were in poor ?nancial condition, and that their assets should be valued at $2.5 million for purposes of Mr. Dean?s buying out Mr. Clavet?s interest. Mr. Dean did not disclose that at the very same time he was negotiating to sell the Marina Companies? non-cash assets for $7.9 million, and he had in hand a draft purchase and sale agreement on those terms from the Buyer. Mr. Clavet brings this Motion to try to obtain security for the judgment he is likely to Win, and to maintain the status quo until the Court can rule de?nitively on Mr. Clavet?s rights and remedies. LEGAL STANDARD An attachment under M.R. Civ. P. 4A(c) or an attachment on trustee process under MR. Civ. P. 4B(c) is proper when the Plaintiff shows ?it is more likely than not that [he] will recover judgment . . . in an amount equal to or greater than the aggregate sum of the attachment? and any other available insurance, security or assets subject to other writs to secure the judgment. MR. Civ. P. 4A(c) 85 4B(c). In deciding whether to grant an attachment, the Court must assess the merits of the claims and the weight and credibility of supporting af?davits. See, Porrazzo v. Karofsky, 1998 ME 187, 1 7, 714 A.2d 826, 838. ARC-115153.11: The Af?davit of Emile Clavet supporting this Motion establishes the likelihood of his proving facts that give rise to liability here. Mr. Dean and Mr. Clavet were long-time business partners. (Af?davit of Emile Clavet at 1 2). The Marina Companies in question were two among a number of companies Mr. Dean and Mr. Clavet co-owned equally, and Mr. Dean had primary managerial responsibility for the Marina Companies in question. (Id. at 1(1) 3-6). Mr. Clavet relied on Mr. Dean for accurate information about the value of their joint investment in the Marina Companies. (Id. at 11 5-6). On September 15, 2016, Mr. Dean sent Mr. Clavet a text message telling Mr. Clavet the situation of the Marina Companies was dire and that the lenders would require Mr. Clavet and his wife to post personal guarantees over the Marina Companies? credit facilities, and suggesting that Mr. Dean buy out Mr. Clavet?s interest. (Id. at 8 8s Exh. A). In their discussions over the following days. Mr. Dean suggested that the fair value for the Marina Companies was the $2.5 million Mr. Dean and Mr. Clavet had originally paid for them, minus the amount of their outstanding debt of $320,000. (Id. at 1 9). At the exact same time, Mr. Dean was negotiating with TCRG Opportunity L.L.C. or ?Buyer?) for TCRG to purchase all the Marina Companies? non-cash assets for $7.9 million, (Id. at 1 11); TCRG provided Mr. Dean a draft purchase and sale agreement on those terms on or about September 16, 2016. (Id. 13). Mr. Dean executed the purchase and sale agreement with TCRG on October 5, 2016. (Id. at 1 12 85 Exh. B). At that time, the Marina Companies had approximately $320,000 in cash assets, in addition to the non-cash assets being sold to TCRG. (Id. at 1 20). Mr. Dean did not tell Mr. Clavet about the pending sale of the Marina Companies? assets, or the true value of the Marina Companies supporting that pending sale, while he and Mr. Clavet were negotiating the sale of Mr. Clavet?s interest to Mr. Dean, and Mr. Clavet was not aware of the information. (Id. at 11). Accordingly, Mr. Dean and Mr. Clavet agreed on a sale of Mr. Clavet?s interest for $1.090 million, being half of the value as represented by Mr. Dean, namely $2.5 million in asset minus $320,000 in debt. (Id. at 1 10). Mr. Clavet would not have agreed to these terms but for Mr. Dean?s misrepresentations. (Id. at 11 18- 19, 21). 1. Mr. Clavet Is Likely to Prevail on the Merits a. Intentional and Negligent Misrepresentation and Breach of ?duciary Duty. Mr. Dean is more likely than not liabie to Mr. Clavet for fraud, negligent misrepresentation and breach of ?duciary duty. A defendant is liable for fraud or deceit if he makes a false representation of a material fact with knowledge of its falsity or in reckless disregard of whether it is true or false for the purpose of inducing a plaintiff to act or to refrain from acting in reliance on the misrepresentation, and the plaintiff justifiably relies on the representation as true and thereby suffers damage. See, Rand 0. Bath Iron Works Corp, 2003 ME 122, 1 9, 832 A.2d 771, 773. A plaintiff can justi?ably rely on a fraudulent representation without investigating its truth or falsity; reliance is unjusti?able only if the plaintiff knows the representation is false or its falsity is obvious to him. Letellier v. Small, 400 A.2d 371, 376 (Me. 1979). An omission of a material fact constitutes a misrepresentation when there is a ?duciary relationship between the plaintiff and the defendant. See Brawn 0. Oral Surgery Assocs., 2003 ME 11, 1 23, 819 A.2d 1014, 1026. Intentional fraud must be proved by clear and convincing evidence, see Rand v. Bath Iron Works Corp., 2003 ME 122, 1 9, 832 A.2d 771, 773; negligent misrepresentation must be proved by a preponderance, see Alexander, Maine Jury Instruction Manual (2016 ed.) 7-31 at 7-47. The facts set forth above establish Mr. Dean made both af?rmative misrepresentations to Mr. Clavet and misrepresentations by omission. It was false to state that the value of the Marina Companies? assets was $2.5 million, when there was a Buyer ready, willing and able to pay $7.9 million for the non-cash assets and the Marina Companies had an additional $320,000 in cash. In addition, the information about the TCRG negotiations was material information Mr. Dean had a duty to disclose to Mr. Clavet. As a longtime business partner of Mr. Clavet?s, as a co-membcr in the closely-held LLCs with Mr. Clavet, as the one charged with principal managerial and reporting responsibility as to those two Marina Companies, and as the one with sole control over the Marina Companies? financial records (Af?davit of Emile Clavet at 1 6), Mr. Dean owed a ?duciary duty to deal fairly with Mr. Clavet in purchasing his interest and to disclose to Mr. Clavet all information material to the value of Mr. Clavet's interest. In short, he had a duty to disclose the existence of a Buyer proposing to pay $7.9 million for the non-cash assets. b. Unjust Enrichment and Constructive Trust Mr. Dean is additionally liable to Mr. Clavet on an unjust enrichment theory, entitling Mr. Clavet to restitution of the unjust enrichment as well as to a constructive trust over the assets of the Marina Companies. The elements of unjust enrichment in Maine are that the plaintiff conferred a bene?t on the defendant, that the defendant appreciated or had knowledge of the bene?t, and that the defendant's acceptance or retention of the bene?t under the circumstances makes it inequitable for the defendant to retain the benefit without payment of its value. See, Estate of White, 521 A.2d 1180, 1183 (Me. 1987). The Court can order restitution to the amount of the injustice. Alternatively, the Court can impose a constructive trust to prevent unjust enrichment. If a person would be unjustly enriched if allowed to retain property for his or her own bene?t, a constructive trust can be imposed on the property in favor of the party at whose expense the unjust enrichment would be. See, Horton 85 McGehee, Maine Civil Remedies (4?h ed.) 9?1 at 205 n.1 (constructive trust ?may be imposed to do equity and to prevent unjust enrichment when title to property is acquired by fraud . . . or is acquired or retained in breach of a ?duciary duty.?) (quoting RESTATEMENT OP RESTITUTION 160 (1937)). The constructive trust does not attach merely to the property initially taken; it may also reach the traceable proceeds and pro?ts of that property. The reasons discussed above that establish Mr. Dean?s misrepresentations in the purchase of Mr. Clavet?s interest in the Marina Companies also establish the unjust enrichment of Mr. Dean in his obtaining full ownership of the Marina Companies without paying Mr. Clavet the fair value for his interest in the Marina Companies. That full ownership of the Marina Companies meant Mr. Dean obtained 100% rather than 50% of the proceeds of the sale to TCRG. Half the proceeds of the sale to TCRG by rights belongs to Mr. Clavet and should be impressed with a constructive trust. Furthermore, the evidence shows that the vast majority of the Marina Companies? assets following the sale to TCRG were the proceeds of that sale, since the Marina Companies had very little by way of assets excluded from that sale - essentially, cash in an amount approximately equal to its outstanding debt. (Af?davit of Emile Clavet at 11 24-27). On these facts, all property held in the Marina Companies should be deemed traceable proceeds of the sale, and all such property should be attached and [or impressed with a constructive trust to the amount of $2,972,500 that amount being equal to half the proceeds of the TCRG sale (or $3.95 million), minus the amounts Mr. Dean has paid to date to Mr. Clavet for his half interest in the companies ($977,500) (id. at 1 10). It is no answer to say the pr0perty of the Marina Companies cannot be impressed with a constructive trust because Mr. Dean no longer owns the Marina Companies. He transferred them to his wife. (Id. at 1 23). A constructive trust can be impressed on traceable proceeds in the hands of a third party so long as the third party is not a bona ?de purchaser for value without notice of the claims of the bene?ciary. See generally Horton 8s McGehee, Maine Civil Remedies 9-5 at 217 8n n. 78 (citing authorities). There is no evidence to suggest his wife is a bona ?de purchaser for value without notice of the rightful claim of Mr. Clavet. 2. No Other Insurance or Security for Likely Award of Based on the deal he had literally in hand with TCRG at the time he was negotiating with Mr. Clavet, the Marina Companies were worth $7.9 million: TCRG agreed to buy the non-cash assets for $7.9 million; in addition, the Marina Companies had cash of approximately $320,000, roughly equal to the amount of their outstanding debt. (Af?davit of Emile Clavet at 1 22). The true value of Mr. Clavet?s one-half interest in the Marina Companies at the time of purchase was $3.95 million, rather than the $1 .09 million agreed on based on Mr. Dean?s misrepresentations. Mr. Clavet has been damaged to the amount of that difference -- $2.86 million plus the $1 12,500 Mr. Dean still has not paid on the originally agreed price. In other words, Mr. Clavet will likely prove at trial that Mr. Dean owes him at least $2,972,500. There is no evidence of any insurance available to satisfy the claims of Mr. Clavet or other security for those claims, and therefore the requested attachment and other relief should be granted in the full amount of $2,972,500. 3. Other Claims and Rights Reserved Mr. Clavet has a number of other claims for relief not set forth in this Motion. For instance, while he seeks punitive damages in this lawsuit, he does not seek an attachment or constructive trust in the amount of any such punitive damages. All rights and claims set forth in Plaintiff?s complaint are expressly reserved against all parties, regardless whether they have been invoked here in support of the relief sought in this Motion. CONCLUSION For all the foregoing reasons the Court should: 1. Order attachment of all attachable assets of Kevin Dean up to the amount of $2,972,500; 2. Order attachment on trustee process against all parties in possession of property payable to Kevin Dean to the amount of their attachable credits not to exceed $2,972,500; 3. Impress all assets of Blue Water Marina LLC with a constructive trust for the bene?t of Emile Clavet to the extent of his equitable half interest in all such assets; 4. Impress all assets of Covered Marina LLC with a constructive trust for the bene?t of Emile Clavet to the extent of his equitable half interest in all such assets; 5. Award such other and further relief as the Court deems just and equitable in the premises. DATED: December 13,2017 I Clifford H. Ruprecht, Bar No. 8714 ROACH HEWITT RUPRECHT SANCHEZ 85 BISCHOFF, RC. 66 Pearl Street, Suite 200 Portland, ME 04101 (207) 747-4870 Attorneys for Emile Clavet NOTICE Any opposition to this motion must be filed not later than twenty-one (21) days after the ?ling of this motion unless another time is provided by Rule of the Maine Rules of Civil Procedure or set by the court. Failure to ?le timely opposition will be deemed a waiver of all objections to this Motion, which may be granted without further notice or hearing. 10