IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR

MIAMI-DADE COUNTY, FLORIDA

LAURENT LEMOINE, an individual, and CIRCUIT CIVIL DIVISION

US FORCE ONE, LLC, a Florida Limited
Liability Company, CASE NO. 2017-21926 CA 01 (22)
Plaintiffs,
v.
VINCENT JEAN THILLOY, an individual,
MAHESH F. HARJANI, an individual,
STERLING EQUITY REALTY, LLC,
A Florida Limited Liability Company,
BRIGITTE RESPAUT-CLEMENT, LLC,
a Florida Limited Liability Company,
BIGI, LLC a Florida Limited Liability
Company,

Defendants.
______________________________________/

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Plaintiffs, LAURENT LEMOINE (“Lemoine”) an individual, and US FORCE

ONE, LLC (“UFO”), a Florida Limited Liability Company, (hereinafter referred to collectively as

“Plaintiffs”), pursuant to Florida Rule of Civil Procedure 1.510, by and through the undersigned

counsel moves the Court for an order granting Plaintiffs’ Motion for Summary Judgment against

Defendant VINCENT JEAN THILLOY (hereinafter referred to as “Thilloy” or “Defendant”), and

in support thereof, states:

INTRODUCTION

Plaintiffs, a French National and his Florida-based company, are victims of Defendant,

Thilloy’s investor based-fraud scheme. It is evident through the recent facts that have come to light

in the various depositions discussed below, that Defendant used acts of trickery and deceit, to

swindle Plaintiffs out of hundreds of thousands of dollars. Specifically, Defendant Thilloy made

material misrepresentations and omissions, to get Plaintiffs to purchase the stock of a company
called VM Beach Group, Inc. (Hereinafter referred to as “VM Beach Group Inc.” or the

“Corporation” or the “Business”). Defendant fraudulently induced the Plaintiffs to enter into the

Stock Purchase Agreement and Shareholder Agreement by providing a falsified long-term lease

for the subject property, which never actually existed. The Defendant’s collective actions and

fraudulent inducement of Plaintiffs’ investment resulted in the loss of Plaintiffs entire investment

and has left Plaintiffs at risk of losing their E2 immigration status here in the United States.

Plaintiffs request that this Court enter a summary judgment against Defendant, Thilloy, as

to Counts I (Breach of Stock Purchase Agreement), II (Breach of Implied Covenant of Good Faith

and Fair Dealing under the Stock Purchase Agreement), IV (Fraud in the Performance of the Stock

Purchase Agreement), V (Breach of the Shareholder Agreement), VI (Breach of Implied Covenant

of Good Faith and Fair Dealing under the Shareholder Agreement), VII (Breach of Fiduciary Duty

under the Shareholder Agreement), IX (Equitable Accounting as to VM BEACH GROUP, INC.),

and XII (Fraud in the Inducement) of Plaintiffs’ First Amended Complaint dated January 29, 2018

(hereinafter referred to as the “Complaint”). The grounds and substantial matter of law to be argued

on this motion are set forth below. This Motion will show that as to Counts I, II, IV, V, VI, VII,

IX, and XII of Plaintiffs’ Complaint, there are no genuine issues as to any material fact, and that

Plaintiffs are entitled to a judgement as a matter of law based on the Florida Rules of Civil

Procedure, as well as other authorities.

SUMMARY OF THE FACTS

At the time of Plaintiffs’ investment, Defendant Thilloy was president of VM Beach Group,

Inc., a Florida for Profit Corporation, who owned and operated the restaurant, Chef Vincent

(hereinafter referred to as “Restaurant”). [Complaint ¶ 19 & Deposition Transcript of Plaintiff, at

117:9-11; 262:23-263:1]. Lemoine was presented with a ten-year (10)+5y Restaurant Lease

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Agreement (hereinafter referred to as “Restaurant Lease Agreement” or “Commercial Lease”)

between Room Mate Lord Balfour Hotel (herein after referred to as “Hotel”) and VM Beach

Group, Inc. [See Restaurant Lease Agreement attached hereto as “Exhibit A” & Deposition

Transcript of Plaintiff, at 167:16-168:18]. The Restaurant Lease Agreement was dated May 1,

2016 and was signed by Mario Valadares De R. Costa (hereinafter referred to as “Mario

Valadares”) on behalf of the Hotel and Vincent Thilloy on behalf of VM Beach Group, Inc.

[Deposition of Thilloy, at 30:10-15].

On September 19, 2016, Plaintiffs executed a Letter of Intent for VM Beach Group, Inc.,

which offered a purchase price of five hundred and sixty thousand dollars ($560,000.00) for fifty

percent (50%) of shares of common stock of VM Beach Group, Inc. [Deposition Transcript of

Plaintiff at, 177:9-15; 319:2-5]. On October 1, 2016 Plaintiffs executed the Stock Purchase

Agreement based on the information provided by Defendant Thilloy regarding the 10-year

Restaurant Lease. [Deposition Transcript of Plaintiff, at 63:10-14]. Moreover, the Seller’s

Affidavit signed and provided by Defendant Thilloy, as well as the Stock Purchase Agreement,

clearly mentioned the Commercial Lease, referencing that the lease was in good standing and in

full force and effect. [See Seller’s Affidavit attached hereto as “Exhibit B”, paragraph 5; See

Section 3.4 of the Stock Purchase Agreement attached hereto as “Exhibit C”; Complaint ¶ 28 – 31;

Deposition Transcript of Plaintiff, at 63:10-14; 230:10-231:1; 231:3-6]. Unbeknownst to Lemoine,

the long term Commercial Lease, which was presented to the Plaintiffs by Defendant Thilloy, as

the location for the Restaurant, was in fact a fake lease made fraudulently ?. [Complaint ¶ 25 &

Deposition Transcript of Plaintiff, at 167:16-168:18].

It was not until several months after Lemoine had invested the full amount into the Business

that Adnan Jafarov, the Hotel manager, affirmed that a Commercial Lease between VM Beach

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Group, Inc. and the Hotel never existed. [Complaint ¶ 34; [Deposition of Plaintiff, at 105:15-20;

Deposition of Adnan Jafarov, at 18:1-8]. Additionally, the Commercial Lease that was the

foundation of Lemoine’s investment was signed by a Mario Valaderes de R. Costa, who holds no

position with the Hotel, and never has held any position with the Hotel or its management.

[Complaint ¶ 35; Deposition of Adnan Jafarov, at 19:1-12]. Moreover, Defendant Thilloy stated

in his deposition that he never discussed any Restaurant Lease Agreement with any Hotel

employee or manager after the execution of the temporary lease. [Deposition of Thilloy, at 107:7-

12]. Nor did he receive any other documentation from Hotel as it pertained to the Restaurant Lease

Agreement, for example no notification of the lease, modification, addendums, confirmation of

the lease, or anything of that nature. [Deposition of Thilloy, at 107:12-21]. It is evident that

Defendant Thilloy had no intentions of securing a 10-year +5y Restaurant lease agreement with

the Hotel, which was the basis of Lemoine’s investments; because when confronted about the

Restaurant Lease Agreement, Defendant Thilloy stated that the Restaurant Lease agreement

Commercial sublease agreement ? was soley drafted for insurance purposes, and served no

additional purpose. [Deposition of Mahesh Harjani, at 131:24- 132:6]

Additionally, the Restaurant Lease Agreement as well as the Bill of Sale presented to

Plaintiffs, was notarized by Cede David, and signed by both Defendant Thilloy and Mario

Valadares. [Deposition of Cede David, at 4:24 -25; 5:10-12]. Cede David stated that although his

notary commission stamp appears on the Bill of Sale, it is not his signature on the document and

he has no recollection of ever notarizing the document. [Deposition of Cede David, at 9:14-24].

Cede David explained that this document was notarized without him being present, as his

signatures do not appear next to the notary stamp on the document. [Deposition of Cede David, at

19:23-25]. Further, Cede David conceded that Thilloy must have notarized or stamped that

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document, because Thilloy is the only person who would benefit from a document of this type.

[Deposition of Cede David, at 20:1-11]

Additionnally, in December 2013, V Thilloy signed a lease (for CC invest with his lawyer

julio Cavero) with the Marlin Hotel. The lease for the Marlin restaurant is exactly the same, word

for word, lign for lign, paragraph for paragraph, page for page - except names, companies and

dates as the VM beach Group inc lease signed with room mate lord balfour. The representant of

the hotel was Mario Valadares as he was the owner of the marlin hotel. There are no chance at all,

that Room Mate Lord Balfour Hotel used the same lease as the marlin as Mario valadares and

adnan Jafarov never met. On the contrary, V Thilloy had 100% of possibility to get a copy of the

lease under ‘word format’ and made a fraudulent document with the VM Beach Group inc. lease

without even changing the name of Mario Valadares.

Additionally, on the 3 following documents (lease of the marlin, lease of VM beach group

and the bill of sale of the restaurant in lord balfour hotel) the name of Mario Valadares appears.

And unfortunately, the 3 signatures of Mario Valadares are all different. They are not similar but

different and no need to be expert in graphology to testimony these differences. More over Thilloy

in his deposition 27-25 recognize that the signature of Mario Valadares in the bill of sale and in

the lease from VM Beach Group inc. are different.

Additionally, the none executed temporary commercial sublease agreement that was made

by the hotel for an insurance purpose and for a one year management, was never disclosed to the

plaintiff. Thilloy recognize in his deposition that the temporary commercial sublease was given to

him before the closing – ligne 56-10. So Thilloy, to induce plaintiff to close, gave a fraudulent

notarized document of a 10y+5y lease instead of a non executed temporary sublease agreement.

The price would have never been the same without a real lease.

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 Additionally, the bill of sale that was made by thilloy is another forged document as there

has been no sale between VM Beach Group inc. and room mate lord balfour. This document was

created by thilloy or his associates because the DBPR refused to give Thilloy the license for the

restaurant without a bill of sale. As there was no sale, Thilloy or his associates had to forge a

document.

Additionally, thilloy recognize that his reputation is well known on the beach in the

restaurator field – ligne 126-15. Yes a reputation with 47 dockets in the civil court at the time of

closing for VM beach group inc.

Additionally, thilloy in his deposition testified that Mr Fernando CAZEAUX and felipe

BOYERO gave thilloy by hand the 10y+5 lease – ligne 131-11. And Mr Jafarov testified that there

was no lease at all. So if the lease had been real, why Thilloy never sued the lord balfour hotel

because he lost 1/2 of the restaurant and ½ million dollars ?

Additionally, in his deposition (ligne 28-4), Thilloy said that he never met and worked with

Mario Valadares. This is very difficult to believe as Thilloy signed a lease with Mario Valadares

in dec 2013 and Thilloy run the restaurant for 2 or 3 years. It’s difficult to believe that Thilloy

never met his landlord even if in his deposition Thilloy said that Mario has never been his landlord

(ligne 29-2). Moreover, in his affidavit as well as his deposition, Jean Vincent NAURAIS said that

Mr Thilloy met several times Mr Mario Valadares at Marlin hotel and especially for organizing

the restaurant. So Mr Thilloy is lying in his deposition under oath and should be condemn for

perjury.

Additionally, Mr JV Naurais describes in his deposition (lignexx) and in his affidavit the

scheme that Thilloy usually use to scam people. Selling 50% of the restaurant for 500,000$ with

Thilloy staying and running the restaurant in order to reassure the buyer. This is exactly what

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thilloy asked to Naurais : sell 50% of the marlin restaurant and this is the same scheme that was

used to defraud the plaintiff.

Additionally, VM beach group inc was incorporated on the 20th of may 2016 and the lease

was supposedely signed on the 1st of may 2016 – Thilloy deposition 11-5. No lease can be signed

with a company that doesn’t exist.

Additionally, thilloy in his deposition (25-3) is surprised by a bill of sale signed by Mario

Valadares and Thilloy. But thilloy in his deposition recognize his signature.

Acknowledging the damages Defendant Thilloy caused Plaintiffs due to his material

misrepresentation and omissions regarding his investment in VM Beach Group Inc. Mr. Gary S.

Glasser, Esq., Defendant Mahesh Harjani’s Attorney, explicitly stated on the record to the Plaintiff,

“I don’t think anybody here does not feel badly for you that Vincent Thilloy ripped you off, okay.”

[Continued Deposition of Plaintiff, at 51:19-23]. Mr. Glasser continued to say that “it’s funny,

because at the beginning of the deposition, people were talking about the alleged fake lease. I

mean, come on. We’re not sitting here saying you didn’t get ripped off.” [Continued Deposition

of Plaintiff, at 51; 24-25; 52;1-3].

Finally, in early 2017, after Lemoine became a 50% shareholder in VM Beach Group Inc.,

Defendant Thilloy started investing in other restaurants in Miami, which is a clear violation of the

Non-Compete Sections of the Stock Purchase Agreement as well as the Shareholder Agreements.

[See Stock Purchase Agreement attached hereto as Exhibit “C” and Shareholder Agreement

attached hereto as Exhibit “D”, respectively; Complaint ¶ 52; [Deposition of Thilloy, at 110:11-

111:1-7; 140:3-141: 2-6]. Additionally, Defendant Thilloy breached the Shareholder Agreement

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when he failed to disclose issues relating his consistent unavailability as president and partial

owner of Chef Vincent Restaurant, when he failed to pay Restaurant employees, and when he

began making random payments from VM Beach Group, Inc’s operating account. [Deposition of

Thilloy, at 147:12-148:23]. Eventually, Defendant Thilloy abandoned VM Beach group Inc. and

Lemoine took full operation of the Restaurant as of late May 2017 due to Defendant Thilloy’s

absence from the Restaurant and lack of transparency regarding all business matters. [Complaint

¶ 54; Deposition Transcript of Thilloy, at 111:1-7; 140:3-25]. Due to the fact that Lemoine was

induced into unknowingly investing the majority of his money into a business that would be forced

to vacate the subject property at any given time, with an untrustworthy business partner, Lemoine

lost his entire investment, and continues to suffer damages. [Complaint ¶ 58; Deposition Transcript

of Plaintiff, at 408:2-409:15].

LEGAL STANDARD

Under Florida law, “the moving party is entitled to summary judgment if the pleadings,

depositions, answers to interrogatories, admissions, affidavits, and other materials as would be

admissible in evidence show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); see Florida Bar

v. Greene, 926 So.2d 1195, 1200 (Fla. 2006). A material fact is one essential to the result that is

placed in controversy by the pleadings and affidavits. Wells v. Wilkerson, 391 So. 2d 266 (Fla. 4th

DCA 1958). To withstand a motion for summary judgment, it is insufficient for the opposing party

merely to assert that a disputed issue of material fact exists. See Slachter v. Abundio Investment

Co., 566 So.2d 348 (Fla. 3rd DCA 1990). Once a movant tenders competent evidence to support

his motion, the non-moving party must come forward with such substantial, competent counter-

evidence and demonstrate the existence of a genuine issue of material fact. Landers v. Milton, 370

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So. 2d 368, 368 (Fla. 1979). As the record evidence shows that there is no genuine issue of

material, and as stated in more detail below, this Court should grant the instant motion.

DISCUSSION

I. COUNT I – DEFENDANT BREACHED THE STOCK PURCHASE AGREEMENT,

AND THEREFORE PLAINTIFFS ARE ENTITLED TO SUMMARY
JUDGEMENT AS A MATTER OF LAW

Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue

of material fact relating to Defendant’s breach of the Stock Purchase Agreement. To state a claim

for breach of contract under Florida law, a plaintiff must allege: “(1) the existence of a contract;

(2) a material breach of that contract; and (3) damages resulting from the breach.” Vega v. T-

Mobile USA, Inc., 564 F.3d 1256, 1272 (11th Cir. 2009) (citing Friedman v. N.Y. Life Ins. Co.,

985 So. 2d 56, 58 (Fla. 4th DCA 2008)). “A breach is material if it goes ‘to the essence of the

contract.’” Modern Gaming, Inc. v. Malone, 2010 WL 724434, at *2 (M.D. Fla. Feb. 24, 2010)

(quoting Covelli Family, L.P. v. ABG5, L.L.C., 977 So. 2d 749, 752 (Fla. 4th DCA 2008)).

In this case, Defendant Thilloy materially breached the Stock Purchase Agreement, causing

the Plaintiffs to suffer damages, thereby entitling them to summary judgement as a matter of law.

Unlike Vega, where the court held that the plaintiffs neither pled a claim for breach of contract nor

identified a contract or agreement that Defendant purportedly breached; it is evident from the

Complaint, various depositions and attached exhibits that Lemoine and Defendant Thilloy entered

into a Stock Purchase Agreement on October 1, 2016. 564 F.3d at 1272. More specifically, the

Stock Purchase Agreement entitled Lemoine to fifty percent (50%) of shares of common stock of

VM Beach Group, Inc., for the purchase price of five hundred and sixty thousand dollars

($560,000), as consideration for the Agreement.

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 Defendant Thilloy clearly failed to fulfill his obligations pursuant to the Stock Purchase

Agreement, and the record is complete with sufficient evidence of Defendant Thilloy’s multiple

material breaches that go to the essence of the Agreement. Defendant Thilloy unambiguously

breached the Stock Purchase Agreement, by failing to comply with the provision dealing with Real

Property, which states that the “…Lease is in full force and effect, and the Corporation and/or

Seller has fully performed all of its obligations to be performed to date under such Lease.” (See

Section 3.4 of the Stock Purchase Agreement attached hereto as “Exhibit C”). The breach is

material because Plaintiffs executed the Stock Purchase Agreement solely based on the

information provided by Defendant Thilloy regarding the 10-year Restaurant Lease. Specifically,

Defendant Thilloy’s representations and warranties were not accurate and misleading as the Stock

Purchase Agreement even makes mention to the requirement of a valid Commercial Lease, which

in actuality is and always was fraudulent and invalid. (See Section 7.1 & 7.2 of the Stock Purchase

Agreement attached hereto as “Exhibit C”).

As a direct and proximate result of the aforementioned actions as well as the material

misrepresentations of Defendant Thilloy, Lemoine has suffered monetary damages in excess of

the original $560,000 he invested into VM Beach Group, Inc. and will continue to suffer damages

as a direct result of Defendant Thilloy’s willful and malicious conduct and breach of the Stock

Purchase Agreement. Therefore, Plaintiffs are entitled to summary judgement as a matter of law

as there is no genuine issue of material fact relating to Defendant’s breach of the Stock Purchase

Agreement.

II. COUNT II – DEFENDANT BREACHED THE IMPLIED COVENANT OF GOOD

FAITH AND FAIR DEALING UNDER THE STOCK PURCHASE AGREEMENT,
AND THEREFORE PLAINTIFFS ARE ENTITLED TO SUMMARY
JUDGEMENT AS A MATTER OF LAW.

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 Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue

of material fact relating to Defendant’s breach of the Implied Covenant of Good Faith and Fair

Dealing under the Stock Purchase Agreement. “Under Florida law, every contract contains an

implied covenant of good faith and fair dealing.” Centurion Air Cargo, Inc. v. United Parcel Serv.

Co., 420 F.3d 1146, 1151 (11th Cir. 2005); see also County of Brevard v. Miorelli Eng’g, Inc., 703

So. 2d 1049, 1050 (Fla. 1997). Nonetheless, a breach of the implied covenant “is not an

independent cause of action, but attaches to the performance of a specific contractual obligation.”

Id.; see also Burger King Corp. v. Weaver, 169 F.3d 1310, 1316 (11th Cir. 1999) (“[A]n action for

breach of the implied covenant of good faith cannot be maintained [under Florida law] in the

absence of breach of an express contract provision.”). “To allege a breach of the implied covenant,

the party must demonstrate a failure or refusal to discharge contractual responsibilities, prompted

not by an honest mistake, bad judgment or negligence; but, rather by a conscious and deliberate

act, which unfairly frustrates the agreed common purpose and disappoints the reasonable

expectations of the other party thereby depriving that party of the benefits of the agreement.”

Shibata v. Lim, 133 F. Supp. 2d 1311, 1319 (M.D. Fla. 2000) (quoting Cox v. CSX Intermodal,

Inc., 732 So. 2d 1092, 1097–98 (Fla. 1st DCA 1999)).

Here, Defendant Thilloy, as partner in VM Beach Group Inc., had an obligation to act in the

best interest of the Company under the Stock Purchase Agreement entered into between the parties.

Unlike the plaintiff in Shibata, where the plaintiff alleged that Defendant’s breached the implied

covenant of good faith and fair dealing by falsely characterizing the money transaction as an

investment in order to avoid repayment on the loan. 133 F. Supp. 2d at 1321. Defendant Thilloy

violated his duty to act in good faith and fairly under this Stock Purchase Agreement when he

intentionally and wrongfully concealed, suppressed, misrepresented, and omitted material facts

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relating to the Commercial Lease, unfairly frustrating the Stock Purchase Agreement’s purposes

and misrepresented information, on which Lemoine detrimentally relied upon in his decision to

sign the Stock Purchase Agreement. Moreover, Defendant Thilloy was responsible for running the

day to day operations of the business, which he abandoned while still maintaining an ownership

interest in VM Beach Group Inc. Furthermore, early in 2017, Defendant Thilloy started investing

in other restaurants in Miami, directly violating the Stock Purchase Agreement, which states that

“Seller will not directly or indirectly engage in or become interest in a similar business or any

business … or in any other way compete with the Corporation without the informed written

consent of Buyer.” (See Stock Purchase Agreement, Section 3.11 “Covenant Not to Compete”

attached hereto as “Exhibit C”). In this case, Defendant Thilloy failed to provide informed written

consent to the Plaintiffs, regarding the similar businesses Defendant Thilloy was engaging in.

Defendant Thilloy failed to use his best efforts to conduct business on behalf of the corporation in

accordance with sound business practices, in a lawful manner, and to preserve the corporation.

Defendant Thilloy’s multiple breaches of the Stock Purchase Agreement, deprived Lemoine

of the Stock Purchase Agreement's benefits and ultimately led to the complete loss of Lemoine’s

investment and the closing of the Restaurant. As a direct and proximate result of Defendant

Thilloy’s willful, conscious and deliberate acts, including but not limited to Defendant Thilloy’s

breaches of the Stock Purchase Agreement, Lemoine suffered and continues to suffer damages.

Therefore, Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine

issue of material fact relating to Defendant’s breach of the Implied Covenant of Good Faith and

Fair Dealing under the Stock Purchase Agreement.

III. COUNT IV – THERE IS NO GENUINE ISSUE OF MATERIAL FACT

REGARDING DEFENDANTS’ FRAUD IN THE PERFORMANCE OF THE
STOCK PURCHASE AGREEMENT, AND THEREFORE PLAINTIFFS ARE
ENTITLED TO SUMMARY JUDGEMENT AS A MATTER OF LAW.
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 Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue

of material fact relating to Defendant’s Fraud in the Performance of the Stock Purchase

Agreement. In Florida, the essential elements of fraud are: (1) a false statement of fact; (2) known

by the person making the statement to be false at the time it was made; (3) made for the purpose

of inducing another to act in reliance thereon; (4) action by the other person in reliance on the

correctness of the statement; and (5) resulting damage to the other person. Mettler, Inc. v. Ellen

Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994). Although the general rule of law in Florida is that

the fraud alleged must refer to a present or existing fact, cases have recognized an exception

“where the promise to perform a material matter in the future is made without any intention of

performing or is made with the positive intention not to perform.” Perry v. Cosgrove, 464 So.2d

664, 666 (Fla. 2d DCA 1985).

Plaintiffs Complaint alleges all of the elements to successfully support a claim of Fraud in

the Performance of the Stock Purchase Agreement. Additionally, the record is devoid of evidence

that Defendant Thilloy willfully and knowingly made false statements regarding material facts

regarding the existence of a valid Commercial Lease, in order for Plaintiffs to invest in VM Beach

Group, Inc. At the time of Plaintiffs investment, Plaintiffs were justified in relying on Defendant

Thilloy’s representations, because Defendant Thilloy, executed a notarized Sellers Affidavit,

which specifically stated that the Restaurant Lease was good standing and that all the information

Seller furnished to Buyer concerning the Corporation and its Business was true and correct, and a

fair and accurate representations of the Business. (See paragraph 8 of Seller’s Affidavit attached

hereto as “Exhibit B”). The record is also celarly points out that the information pertaining to the

Lease was falsified by Defendant Thilloy and Mario Valades. Moreover, at the time Defendant

Thilloy made the false representation to Plaintiffs regarding the subject lease, Defendant Thilloy
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had no intentions of taking the action required to rectify the false promises outlined above.

Defendant Thilloy intended that his misrepresentations would induce Lemoine to rely and act upon

them, which he did by purchasing 50% of Defendant Thilloy’s Company and entering into the

Stock Purchase Agreement. It was essential to Defendant Thilloy’s scheme that Lemoine believe

he had a valid executed Commercial Lease in place, which ultimately induced Lemoine to sign a

binding Stock Purchase Agreement. Lemoine suffered damages in excess of his $560,000

investment based on his justiciable and detrimental reliance on Defendant Thilloy’s false

representations. Therefore, Plaintiffs are entitled to summary judgement as a matter of law as there

is no genuine issue of material fact relating to Defendant’s Fraud in the Performance of the Stock

Purchase Agreement.

IV. COUNT V – DEFENDANT BREACHED THE SHAREHOLDER AGREEMENT,

AND THEREFORE PLAINTIFFS ARE ENTITLED TO SUMMARY
JUDGEMENT AS A MATTER OF LAW

Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue

of material fact relating to Defendant’s breach of the Shareholder Agreement. To state a claim for

breach of contract under Florida law, a plaintiff must allege: “(1) the existence of a contract; (2) a

material breach of that contract; and (3) damages resulting from the breach.” Vega, 564 F.3d at

1272. “A breach is material if it goes ‘to the essence of the contract.’” Modern Gaming, Inc, 2010

WL 724434, at *2 (quoting Covelli Family, 977 So. 2d at 752).

In this case Lemoine, through his company US Force One, LLC, entered into a Shareholder

Agreement with Defendant Thilloy, to purchase ten (10) of the twenty (20) available shares of

common stock in VM Beach Group, Inc. (See Shareholder Agreement attached hereto as “Exhibit

H”). Similar to Modern Gaming, Inc., where the plaintiff sufficiently alleged a “material breach,”

i.e., that defendant’s clearly failed to fulfill their obligations pursuant to the Agreements;

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Defendant Thilloy had an obligation as a majority shareholder to act in the best interest of the

Company, pursuant to the Shareholder Agreement, in which he failed to maintain. 2010 WL

724434, at *3. Defendant Thilloy materially breached the Shareholder Agreement when he failed

to use his best efforts to conduct business on behalf of the corporation in accordance with sound

business practices, in a lawful manner, and to endeavor and preserve the corporation. Specifically,

during early 2017, Defendant Thilloy started investing in other restaurants in Miami, directly

violating of the Shareholder Agreement’s Noncompetition, Trade Secrets Section, which states,

“Each Shareholder agrees that as long as he or she is the owner, or in control of, any of the

Incorporation’s shares, the Shareholder will not be employed, concerned, or financially interested,

either directly or indirectly, in the same or a similar business as that conducted by the

Incorporation, or compete with the Incorporation.” (See Shareholder Agreement, Section 10

“Noncompetition, Trade Secrets” attached hereto as “Exhibit H”). Defendant Thilloy was

concerned and financially interested in the same or similar business to VM Beach Group:

Defendant Thilloy opened up a restaurant in competition to the Restaurant he already had an

obligation to manage with Plaintiffs. Defendant Thilloy’s action and inaction are a material breach

of the Shareholder Agreement, as the Plaintiffs relied on Defendant Thilloy’s restaurant expertise

to be able to maintain and grow a successfully business. Lemoine suffered damages and will

continue to suffer damages as a result of Defendant Thilloy’s willful and malicious conduct.

Therefore, Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine

issue of material fact relating to Defendant’s breach of the Shareholder Agreement.

V. COUNT VI – DEFENDANT BREACHED THE IMPLIED COVENANT OF GOOD

FAITH AND FAIR DEALING UNDER THE SHAREHOLDER AGREEMENT,
AND THEREFORE PLAINTIFFS ARE ENTITLED TO SUMMARY
JUDGEMENT AS A MATTER OF LAW.

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 Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue

of material fact relating to Defendant’s breach of the Implied Covenant of Good Faith and Fair

Dealing under the Shareholder Agreement. “Under Florida law, every contract contains an implied

covenant of good faith and fair dealing.” Centurion Air Cargo, Inc., 420 F.3d at 1151; see also

County of Brevard, 703 So. 2d at 1050. Nonetheless, a breach of the implied covenant “is not an

independent cause of action, but attaches to the performance of a specific contractual obligation.”

Id.; see also Burger King Corp., 169 F.3d at 1316 (“[A]n action for breach of the implied covenant

of good faith cannot be maintained [under Florida law] in the absence of breach of an express

contract provision.”). “To allege a breach of the implied covenant, the party must demonstrate a

failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad

judgment or negligence; but, rather by a conscious and deliberate act, which unfairly frustrates the

agreed common purpose and disappoints the reasonable expectations of the other party thereby

depriving that party of the benefits of the agreement.” Shibata, 133 F. Supp. 2d at (quoting Cox,

732 So. 2d at 1097–98.

In this case, Defendant Thilloy violated the implied duty to act in good faith and fair dealing

under this Shareholder Agreement when Defendant Thilloy took actions to benefit his own

personal interest over the best interest of VM Beach Group Inc. During the time that Defendant

Thilloy owned a majority of Corporation’s shares he abandoned his duties to the restaurant by

disappearing for long periods of time, not paying Company employees the monies they rightfully

deserved and by allocating funds from VM Beach Group, Inc. to other businesses he had going on

at the same time. Defendant Thilloy’s breaches of the Shareholder Agreement deprived Lemoine

of the Shareholder Agreement's benefits. As a direct and proximate result of Defendant Thilloy’s

willful, conscious and deliberate acts, including but not limited to Defendant Thilloy’s breaches

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of the Shareholder Agreement, Lemoine suffered and continues to suffer damages. Therefore,

Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue of

material fact relating to Defendant’s breach of the Implied Covenant of Good Faith and Fair

Dealing under the Shareholder Agreement.

VI. COUNT VII - THERE IS NO GENUINE ISSUE OF MATERIAL FACT

REGARDING DEFENDANTS’ BREACH OF FIDUCIARY DUTY UNDER THE
SHAREHOLDER AGREEMENT, AND THEREFORE PLAINTIFFS ARE
ENTITLED TO SUMMARY JUDGEMENT AS A MATTER OF LAW.

Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue

of material fact relating to Defendant’s breach of Fiduciary Duty under the Stock Purchase

Agreement. To state a claim for breach of fiduciary duty under Florida law, Plaintiffs must show:

(1) the existence of a fiduciary duty; (2) a breach of that duty; and (3) damages incurred as a result

of the breach. See Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002). Fiduciary relationships

implied in law are premised upon the specific factual situation surrounding the transaction and the

relationship of the parties. Courts have found a fiduciary relationship implied in law “when

confidence is reposed by one party and a trust accepted by the other.” Capital Bank v. MVB, Inc.,

644 So. 2d 515, 518 (Fla. 3d DCA 1994) (citations omitted). To establish a general fiduciary

relationship, “a party must allege some degree of dependency on one side and some degree of

undertaking on the other side to advise, counsel, and protect the weaker party.” Watkins v. NCNB

Nat’l Bank of Fla., N.A., 622 So. 2d 1063, 1065 (Fla. 3d DCA 1993). A fiduciary relationship must

be established by competent evidence, and the burden of proving such a relationship is on the party

asserting it. Kislak v. Kreedian, 95 So. 2d 510, 514-15 (Fla. 1957). As a matter of law, no fiduciary

relationship will generally be found to exist where a contract clearly and unambiguously disclaims

the possibility of a fiduciary relationship. See SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 2007

WL 7124464, at *7 (S.D. Fla. Feb. 12, 2007) (finding the defendant was not a fiduciary to the
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plaintiff where the prime brokerage agreement entered into by both parties expressly stated the

defendant “was not acting as a fiduciary”).

Here, Defendant Thilloy as a majority owner of the Corporation’s shares, had a fiduciary

duty to Lemoine to use his best efforts to conduct business on behalf of the Corporation in

accordance with sound business practices, in a lawful manner, and to endeavor and preserve the

Corporation as a corporate director and president of VM Beach Group, Inc. Defendant Thilloy

knew that Lemoine was placing his trust and confidence in him and that Lemoine was relying on

his representations to protect his interest in VM Beach Group, Inc. Defendant Thilloy established

a fiduciary relationship not only based on the terms of the Shareholder Agreement, but implied in

law based upon the specific factual circumstances herein surrounding the business relationship

between Lemoine and the personal assurances of Defendant Thilloy regarding VM Beach Group,

Inc. Lemoine was justified in placing his trust and confidence in Defendant Thilloy. Specifically,

Defendant Thilloy presented Lemoine with an executed 10-year Commercial Lease Agreement, a

Stock Purchase Agreement, a Bill of Sale as well as represented himself as an honorable and

reputable business man, who was capable of running the Restaurant on behalf of the Business.

Defendant Thilloy breached his fiduciary duty by taking unfair advantage and not acting

in the best interest of VM Beach Group, Inc. Specifically when Defendant Thilloy began investing

in other restaurants in Miami, directly violating the Shareholder Agreement. Moreover, Defendant

Thilloy breached the Shareholder Agreement when he failed to disclose issues relating his

consistent unavailability as president and partial owner of Chef Vincent Restaurant, random

payments made from VM Beach Group, Inc’s operating account, and his blatant misrepresentation

that a Commercial Lease existed between VM Beach Group, Inc. and the Hotel. As a direct result

of Defendant Thilloy’s multiple breaches, Lemoine suffered and continues to suffer damages.

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Therefore, Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine

issue of material fact relating to Defendant’s breach of Fiduciary Duty under the Stock Purchase

Agreement.

VII. COUNT IX - THERE IS NO GENUINE ISSUE OF MATERIAL FACT

REGARDING THE EXISTENCE OF A FIDUCIARY RELATIONS BETWEEN
THE PLAINTIFFS AND DEFENDANT, AND THEREFORE PLAINTIFF IS
ENTITLED TO EQUITABLE ACCOUNTING AS TO VM BEACH GROUP, INC.,
AS A MATTER OF LAW.

Plaintiffs are entitled to summary judgement as a matter of law, regarding Equitable

Accounting, as there is no genuine issue of material fact relating to the existence of a fiduciary

duty between the Plaintiffs and Defendant. “Under Florida law, a party seeking an equitable

accounting must show the existence of a fiduciary relationship or a complex transaction and must

demonstrate that the remedy at law is inadequate.” Kee v. Nat’l Reserve Life Ins. Co., 918 F.2d

1538, 1540 (11th Cir. 1990) (citing, e.g., F.A. Chastain Constr., Inc. v. Pratt, 146 So. 2d 910, 913

(Fla. 3d DCA 1962)). Lemoine and Defendant Thilloy have a fiduciary relationship as corporate

shareholders in VM Beach Group, Inc. At common law, directors of a private corporation are

considered to be in a fiduciary relationship with the corporation and its shareholders, and are

therefore entitled to seek equitable accounting. See Fox v. Professional Wrecker Operators of

Florida, Inc., 801 So.2d 175, 180 (Fla. 5th DCA 2001). Due to Defendant Thilloy’s

mismanagement of funds and unauthorized handling of company money, as well as Defendant

Thilloy’s misrepresentations relating to the financials of VM Beach Group, Inc., gives rise to the

need for clarity as to the exorbitant amount of expenses and debt accumulated by Defendant

Thilloy for non-business related purposes. Plaintiffs are entitled to equitable accounting of VM

Beach Group, Inc. which is necessary in accounting for the business of affairs of VM Beach Group,

Inc. No adequate remedy at law is as full, adequate and expeditious as it is in equity, and therefore
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 under the circumstances Plaintiffs are entitled to equitable accounting. Therefore, Plaintiffs are

entitled to summary judgement as a matter of law, regarding Equitable Accounting, as there is no

genuine issue of material fact relating to the existence of a fiduciary duty between the Plaintiffs

and Defendant.

VIII. COUNT XII – THERE IS NO GENUINE ISSUE OF MATERIAL FACT

REGARDING DEFENDANTS’ FRAUD IN THE INDUCEMENT, AND
THEREFORE PLAINTIFFS ARE ENTITLED TO SUMMARY JUDGEMENT AS
A MATTER OF LAW.

Plaintiffs are entitled to summary judgement as a matter of law as there is no genuine issue

of material fact relating to Defendant’s Fraud in the Inducement. To state a claim for fraudulent

inducement pursuant to Florida law, Plaintiffs must allege four elements: “(1) a false statement

regarding a material fact; (2) the statement maker’s knowledge that the representation is false; (3)

intent that the representation induces another’s reliance; and (4) consequent injury to the party

acting in reliance.” Thompkins v. Lil’ Joe Records, Inc., 476 F.3d 1294, 1315 (11th Cir. 2007)

(citations omitted); see also Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010) (clarifying that

“[j]ustifiable reliance is not a necessary element of fraudulent misrepresentation”). See also

Wadlington v. Cont’l Med. Servs., Inc., 907 So.2d 631, 632 (2005); Biscayne Inv. Group, Ltd. v.

Guarantee Mgmt. Servs., Inc., 903 So.2d 251, 255 (2005).

Plaintiffs have adequately pleaded sufficient facts to support their claims that they were

fraudulently induced into signing the Stock Purchase Agreement as well as the Shareholder

Agreement; consequently, the Defendant failed to present any evidence giving rise to a genuine

issue of material fact, and therefore Plaintiffs are entitled to summary judgment. Specifically,

Defendant Thilloy, made material misrepresentations to Plaintiffs regarding the long term lease

which was material to Lemoine’s investment. Defendant Thilloy intentionally deceived and made

material misrepresentations to Lemoine regarding a long term lease agreement between the Hotel
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and VM Beach Group, Inc. that was false. According the record, the Hotel never had any intentions

of implementing a 10-year Restaurant Lease Agreement. Rather Defendant Thilloy mentioned that

he only requested that this document be drafted for insurance purposes. At the time Defendant

Thilloy made these misrepresentations to Plaintiffs, he knew the representations were false, and

had no intentions of taking any actions required to rectify the false representations regarding the

long term lease. Moreover, Defendant Thilloy knew that the agreements were essential to the

transaction, because without a long term lease, the intended business plan of the partners was not

possible. Nonetheless, the Defendant Thilloy knowingly presented the fraudulent documents to

Lemoine, in an attempt to induce Lemoine to invest in the VM Beach Group, Inc. As a direct and

proximal result of Defendant, Thilloy’s misrepresentations which Lemoine relied upon, Lemoine

suffered and continues to suffer said damages. Therefore, Plaintiffs are entitled to summary

judgement as a matter of law as there is no genuine issue of material fact relating to Defendant’s

Fraud in the Inducement.

CONCLUSION

There are no issues of material fact as to the blatant fraud conducted by Defendant, Vincent

Thilloy, and therefore Plaintiffs are entitled to summary judgement as a matter of law.

Furthermore, Plaintiffs are entitled to recover their costs and reasonable attorney’s fees expended.

This Motion, along with the attached exhibits thereto, are filed with the Court to provide the record

evidence to support the entry of summary judgment. Defendant has not put forth any evidence

which controverts the above undisputed material facts. Accordingly, as such, Plaintiffs are entitled

to the relief sought herein. WHEREFORE, Plaintiffs, LAURENT LEMOINE, an individual, and

US FORCE ONE, LLC, a Florida Limited Liability Company, respectfully request that the Court

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grant summary judgment in its favor, award Plaintiffs its attorney’s fees and costs, and grant such

further relief as the Court deems proper.

Respectfully submitted,

WEINKLE ABERGEL LAW GROUP

Counsel for Plaintiff
605 Lincoln Road, Suite 250
Miami Beach, FL 33139
Telephone: (800) 780-7187
Email: Jordan@waplawgroup.com
Email: Brian@waplawgroup.com
Secondary Email: Marissa@waplawgroup.com

By:
/S/Brian Abergel, Esquire
BRIAN ABERGEL, ESQ.
Florida Bar Number: 11132
JORDAN WEINKLE, ESQ.
Florida Bar Number: 116476
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this Wednesday, October 2, 2019 a true and correct copy

of the above and foregoing has been filed electronically using the E-Filing Portal Service, and by

e-service to: Mark A. Dienstag, Esquire, Law Offices of Mark A. Dienstag, Esquire,

mdienstag@markdienstaglaw.com; 9100 Dadeland Blvd., Suite 1500, Miami, Florida 33156;

Blake S. Sando, Esquire, Cole, Scott & Kissane, P.A., blanke.sando@csklegal.com;

maria.vera@csklegal.com; 9150 South Dadeland Blvd., Suite 1400, Miami, Florida 33256; Julio

C. Cavero, P.A., caverojulio@yahoo.com; 2828 Coral Way, Suite 300, Miami, Florida 33145;

and Gary S. Glasser, Esquire, GSG50@msn.com; 28 West Flagler Street, Suite 608, Miami,

Florida 33131; Vincent Thilloy, vthilloy@gmail.com.

Respectfully submitted,
WEINKLE ABERGEL LAW GROUP
Counsel for Plaintiff
605 Lincoln Road, Suite 250
Weinkle Abergel Law Group
605 Lincoln Rd Suite 250, Miami Beach, FL 33139 Phone: 305-330-6928
22
 Miami Beach, FL 33139
Telephone: (800) 780-7187
Email: Jordan@waplawgroup.com
Email: Brian@waplawgroup.com
Secondary Email: Marissa@waplawgroup.com

By: /S/Brian Abergel, Esquire

BRIAN ABERGEL, ESQ.
Florida Bar Number: 11132
JORDAN WEINKLE, ESQ.
Florida Bar Number: 116476

Weinkle Abergel Law Group

605 Lincoln Rd Suite 250, Miami Beach, FL 33139 Phone: 305-330-6928
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