IN THE CIRCUIT COURT FOR THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA MICI-LAEL A. MARCONE Plaintiff, vs. Case No.: TUBE-DUDE LLC and SCOTT GERBER Defendants. COMPLAINT Plaintifi?, MICHAEL A. MARCONE, sues Defendants TUBE-DUDE LLC and GERBER, and alleges: GENERAL ALLEGATIONS 1. Defendant, TUBE-DUDE LLC is a Florida limited liability company with its principal place of business in Sarasota County, Florida. 2. Defendant, SCOTT GERBER, is a resident of Sarasota County, Florida. All acts complained of herein occurred in Sarasota County, Florida. 3. On or about May 17, 2013 Plaintiff and Defendants TUBE-DUDE LLC and SCOTT GERBER entered in to a written agreement (the "Contract") regarding an investment of money by Plaintifi? into the business operated by Defendants which involved the assembly and sale of certain figurines made of piping and known as Tube Dudes. A copy of the written agreement is attached hereto as Exhibit 4. In accordance with the Contract Plaintifi? delivered to both Defendants the sum of Fourteen Thousand Sixty-four Dollars and Thirty Four cents and contributed services Plaintiff and Defendants valued as being worth Twelve Thousand Three Hundred Sixty Dollars . Afler payment of the filnds and the fiirnishing of the services, Defendants refiised to honor the Contract and refilsed to perform the Contract. Defendants failed to do any of the following: A. Grant Plaintiff a minimum 15% interest in Defendant TUBE DUDE or B. Have a formal agreement prepared by an attorney within 7-10 business days; or C. Refimd any stuns to Plaintiff. COUNT I - FRAUD . This is an action for damages which exceeds ifieen Thousand Dollars . At all material times, Defendant SCOTT GERBER acted in the scope and course of his duties as the controlling member of Defendant TUBE-DUDE LLC and on behalf of himself. . Prior to the payment of funds by Plaintiff and prior to Plaintiff fiirnishing the above described services to Defendants Plaintiff SCOTT GERBER made the following statements to Plaintiff to induce Plaintiff to pay the funds and furnish the services described above: . That Defendant TUBE-DUDE LLC was a viable company with a profitable business operation; . That the business operated by SCOTT GERBER in a prudent business manner; and . That Defendants had the ability to provide Plaintiff with a 15% interest in Defendant TUBE-DUDE and . That financial statements regarding the finances of the company were available for inspection by Plaintiff. . At the time the statements were made by Defendat SCOTT GERBER, said Defendant knew the statements were false and knew the following facts: . That the business operated by TUBE-DUDE LLC was heavily in debt and did not 10. ll. 12. make a profit; and That Defendant SCOTT GERBER was misappropriating company fimds on a regular basis to finance his lifestyle. So much of the revenue and other funds controlled by Defendant TUBE-DUDE LLC were being diverted by Defendant SCOTT GERBER that the business was insolvent. Further, Defendant SCOTT GERBER knew that numerous false statements had been made to induce others to invest into the business operations of Defendant TUBE-DUDE LLC exposing the business to liability for investment fraud. Additionally, funds delivered by donors or others to Defendant TUBE-DUDE LLC were not used for the intended purposes and were being diverted by Defendant SCOTT GERBER for his personal expenses; and There were other investors in TUBE-DUDE LLC who were promised various ownership interests or who owned various ownership interest in said business to the point there was not a 15% interest available to transfer to Plaintiff; and There were no financial records or financial information compiled by the business and the books and records the showing receipts and disbursements of Defendant TUBE-DUDE LLC BECAUSE Defendant SCOTT GERBER concealed any financial records of the business in order to conceal his misappropriation of company funds. At the time the financial statements were promised to Plaintiff, Defendant SCOTT GERBER knew no records existed and knew none would be provided to Plaintiff. At the time the statements were made Defendant SCOTT GERBER knew the statements were false and knew Plaintiff would rely on the statements and thereby invest funds into the business. Plaintiff did rely on the misrepresentations of Defendants and in reliance he paid the funds and furnished the services, not knowing the statements and representations were false. As a result of relying on the false and fraudulent statements Plaintiff was damaged by the loss of the fimds invested and the loss of the value of the services provided to Defendants. WHEREFORE, Plaintiff prays for a judgment for damages against Defendants together with interest and the costs of this action. COUNT II -- RECISSION 13. This is an action to rescind a contract with a value in excess of Fifleen Thousand Dollars 14. Plaintiff realleges Paragraphs 1-5 and 7-1 1 and incorporates them herein reference. 15. Plaintifi' is entitled to a rescission of the Contract and the restoration to his status quo ante on the following grounds: A. Because of the Fraud in the inducement of the Contract; and B. Because the terms of the contract provide for a rescission of a formal agreement was not reached within the time periods set forth in the Contract. 16. Plaintifi' has fonnally demanded rescission and lacks an adequate remedy at law. Plaintiff has fiilfilled all conditions precedent required to bring this action. WHEREFORE, Plaintifi' demands rescission of the Contract and the return of Plaintiff' fimds and payment for the value of the services provided pursuant to the Contract plus interest and the costs of this action. QOUNT - BREACH OF CONTRACT 17- This is an action for damages which exceed Fifieen Thousand Dollars 18. Plaintiff realleges paragraphs 1-5. The failure to perform by Defendants set forth above constitutes a breach of the Contract. 19. Plaintiff has fiilfilled all conditions precedent required to bring this action. 20. result of the breach by Defendants Plaintifi' has been damaged by the loss of the Funds paid and the loss of the value of the services contributed by Plaintiff. WHEREFORE Plaintiff prays for a judgment for damages, interest and the costs of this action. LAW OFFICES OF THOMAS M. ITZGIBBONS THOMAS M. FITZGIBBONS, ESQUIRE 2750 Ringling Blvd. Suite 4 Sarasota, Florida 34237 (941) 953-5697 Florida Bar No. 229210 Attorney for Plaintiff fitzlaw@verizon.net