Filing # 106173438 E-Filed 04/13/2020 02:53:10 PM

IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT

IN AND FOR LEE COUNTY, FLORIDA

CASE NO.: ________________________

EARL E. SMITH,

Plaintiff,

v.

WILBUR C. SMITH, III and

MARY MELONIE SMITH, individually,
and in their capacities as Trustees of the
Wilbur C. Smith Estate Reduction Trust
f/b/o Wilbur C. Smith and Mary Melonie
Smith, dated 6/11/03

Defendants.
_______________________________/

COMPLAINT

Plaintiff Earl E. Smith, by and through undersigned counsel, hereby sues Defendants

Wilbur C. Smith, III and Mary Melonie Smith, individually and in their capacities as Trustees of

the Wilbur C. Smith Estate Reduction Trust f/b/o Wilbur C. Smith and Mary Melonie Smith, for

declaratory and injunctive relief, and alleges as follows:

I. Overview

1. Plaintiff Earl E. Smith (“Earl”) has filed this action in court against his brother

Wilbur C. Smith, III (“Billy”) and sister Mary Melonie Smith (“Melonie”) after they refused to

address the issues raised herein without the involvement of lawyers and the legal system.

2. As described more fully herein, with the assistance of Melonie, Billy has committed

a fraud upon, and breached his contractual obligations to, his brother Earl by improperly wresting

operational and financial management of the family’s business, Bill Smith, Inc. (the “Company”)

from Earl.

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 3. Earl has worked at the Company for forty-nine (49) years (since January 3, 1971),

and, after learning the business from their father, Earl has run the Company successfully for

approximately the last thirty two years. Even though neither Billy (with the exception of a brief

failed effort to manage the company’s air conditioning division) nor Melonie have ever taken an

active role in the Company during their approximately one hundred and forty years on this planet,

Melonie and Billy have conspired to wrest operational and financial management from Earl, which

places at risk the future of the Company, the well-being of its employees, and its outstanding

service to the community.

4. By way of example, during the real estate crash that hit the community between

2007 and 2010, through Earl’s effective management, the Company focused on maintaining jobs

for its many employees. On the other hand, as the COVID-19 crises hit in the past few weeks,

Billy ordered the immediate termination of all employees (with the exception of a few supervisory

employees) in order to preserve cash that would inure to his benefit as an owner, with the Company

to re-hire replacement employees at lower hourly rates when the crisis passed.

5. On the other hand, as the COVID-19 crises grew, Earl urged the Company to pay a

$500 bonus to each employee so that each could have a small buffer for unexpected expenses such

as extra food during a prolonged crisis. Since Billy had already wrested control of operational and

financial management from Earl, Billy rejected the $500 bonus to each employee.

6. To be clear, there has been no vote of all the shareholders or directors of the

Company to remove control of operational and financial management from Earl. Earl’s effective

management of the Company for the financial benefit of its shareholders, its employees, and the

community the Company serves, has never been questioned.

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 7. Indeed, in February of 2020, Billy acknowledged in a Voting Agreement (described

more fully below) that in “recognition of [Earl’s] beneficial service to the Corporation and to

provide continuity in the Corporation’s operations, the Stockholders have agreed that Earl should

continue to serve as the Corporation’s President for so long as he is willing.”

8. Billy never intended to honor his agreement to maintain Earl as President in control

of operational and financial management of the Company in order “to provide continuity in the

Corporation’s operations.” As soon as Earl signed an amendment to another corporate document

allowing Billy to transfer his shares in the Company to his wife, Billy improperly, and with the

assistance of Melonie, wrongfully took total control over every aspect of the Company, including

operational and financial management from Earl.

9. Herein, Earl seeks declaratory and injunctive relief regarding his rights arising from

corporate documents described below so that he can continue his efforts to ensure that the

Company is passed on to the next generation of the family as a strong yet compassionate employer

and pillar of the community.

II. The Parties, Jurisdiction, and Venue

10. Plaintiff Earl E. Smith is a resident of Charlotte County, Florida.

11. Defendant Wilbur C. Smith, III is a resident of Lee County, Florida.

12. Defendant Melonie Smith is a resident of Lee County, Florida.

13. This Court has subject matter jurisdiction over this case as the amounts in

controversy exceed $30,000, which is the jurisdictional requirement for this Court.

14. This Court has personal jurisdiction over the Defendants as each reside within this

judicial circuit and because the acts described herein occurred within this judicial circuit.

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 15. Pursuant to Section 47.011, Florida Statutes, venue of this action in this judicial

circuit is proper and appropriate because the Defendants reside in this judicial circuit and the

causes of action set forth in this Complaint accrued within this judicial circuit. In addition, Earl

and Billy have chosen Lee County as the venue for any disputes arising out of the Voting

Agreement that Billy has breached and is the subject of this lawsuit.

III. Factual Background

A. Bill Smith, Inc.

16. In 1942, Wilbur C. “Bill” Smith Jr. began living in Ft. Myers, Florida while serving

in the armed forces. While serving in Ft. Myers, he met and married Mary Alice Fohl, whose

family, in the 1920s, founded and operated Fohl Hardware in Ft. Myers.

17. After serving his country, Bill Smith worked at Fohl Hardware for several years,

learning various aspects of the business from his wife’s family.

18. In 1954, Bill and Mary Smith opened their first appliance store, which was

incorporated into Bill Smith, Inc. (the “Company”) in 1959. The business has operated

continuously in Ft. Myers for over sixty-six years. Although its business model has evolved over

the years, for decades the Company has been the leading appliance and electronics retail business

in Lee, Collier, and Charlotte Counties. Additionally, the Company has been heavily involved in

the economic revitalization of downtown Ft. Myers through Bill Smith’s vision and efforts.

B. The Ownership and Management of Bill Smith, Inc. Prior to 2020

19. Bill and Mary Smith opened their first store in 1954.

20. In 1959, Bill and Mary Smith incorporated Bill Smith, Inc. through which the

business has been run ever since.

21. Bill and Mary Smith were the original shareholders of the Company.

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 22. The Company’s Bylaws from 1959 created the offices of President, Vice President,

Secretary, and Treasurer. See 1959 Bylaws attached hereto as Exhibit 1.

23. Bill and Mary Smith ran the day to day operations of the Company beginning in

1959 with Bill serving as its President.

24. Bill and Mary Smith had three children: Billy, Melonie, and Earl.

25. Although Billy and Melonie have held officer and director titles over the years,

neither has ever been actively involved in the operational management of the Company.

26. Of the three children, Earl is the only child to have actively participated in running

the operations of the Company. Billy became a lawyer and also served as Mayor of Fort Myers

for two terms. For a brief period of time he managed the air conditioning division, but dropped

out of such role after failing at it. Melonie has never been an active participant with regard to the

operations of the Company.

27. Earl began his career at the Company over forty-nine years ago on January 3, 1971

at the age of 23. Under the guidance of his father and other management personnel, Earl learned

every aspect of the Company’s business and also learned from his father that to have a successful

business one must provide outstanding customer service and customer satisfaction as well as

learning that having a highly trained, respected, and valued team of employees will help achieve

that goal.

28. After Earl had worked successfully by his side for years, Bill Smith decided it was

time to promote Earl to President of the Company so that Earl could more effectively manage the

appliance and electronics business of the Company while Bill Smith continued to oversee and

manage the properties division, which primarily consisted of the company owned property in

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downtown Fort Myers. At this time, the Company’s Bylaws were amended to create the office of

Chief Executive Officer. See Amendment to Bylaws, attached hereto as Exhibit 2.

29. Pursuant to the amended Bylaws, the Chief Executive Officer “shall preside with

the President in the general management and supervision of the Company and other officers.” Bill

Smith took on the role of Chief Executive Officer, which he held until his death in 2011, and Earl

was appointed President. The two worked together managing the Company, with Bill Smith’s

daily role reducing as he grew older. When Bill Smith passed away in 2011, no person took over

the role of CEO as the position was specifically created for Bill Smith. Instead, Earl continued to

exercise control over the operational and financial management of the Company as President, as

he had done successfully for years.

30. Under Earl’s leadership, the Company’s sales continued to increase and with the

teams he assembled through the decades, the Company was able to effectively compete with

powerful regional and national retailers such as Standard Brands, Sears, Circuit City, H.H. Gregg,

Best Buy, The Home Depot, and Lowe’s. Earl was able to maintain profitability while competing

and growing sales volume. The Company currently employs approximately one hundred and

sixteen local residents. The Company has survived the economic tumult and change in the way

consumers buy products through excellent customer service. Such customer service is the result

of training the Company’s employees to work as a team and to be knowledgeable and courteous.

Because the success of the Company depends on its employees, the Company has also prided itself

on paying its employees well. Employee turnover at the Company has never been an issue under

the leadership of Earl Smith.

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 C. Restrictions on Ownership of the Shares of the Company and the Relevant Events of
2019

31. In 1985, as the sole owners of the shares of the Company, Bill and Mary Smith

entered into a Stockholder’s Agreement “to establish certain restrictions on the disposition of

shares of stock of the corporation during the shareholder’s lifetime or at death.” In short, Bill and

Mary required that the shares of the Company inure to the benefit of and could only be transferred

to their direct descendants.

32. Mary passed away in 1990.

33. In 2003, the above described restrictions were amended and restated in the

Amended and Restated Stock Buy-Sell Agreement attached hereto as Exhibit 3. As of 2003, Bill

Smith, through a trust, held 4,635 shares of the Company, and Billy, Melonie, and Earl each owned

455 shares of the Company.

34. Bill Smith and his three children each signed the 2003 Amended and Restated Stock

Buy-Sell Agreement, which restricts the transfer of shares of the Company in accordance with the

provisions thereof. In particular, Section 10.13 defines a “Permitted Transferee” as an existing

Shareholder, the descendants of a Shareholder, or a trust having one or more Shareholders or their

descendants as beneficiaries, but such trust cannot result in the shares passing for the benefit of a

person who is not a Permitted Transferee – for example, a spouse.

35. After Bill Smith passed away in 2011, his shares were distributed in equal parts for

the benefit of each of his three children, but with all of Earl’s shares going directly to Earl’s

daughter Stacey Smith Gavin. In addition, each of Bill Smith’s three children held shares

individually and through the Wilbur C. Smith Estate Reduction Trust (the “Trust”). Specifically,

after Bill Smith’s death through the present, each of Billy, Melonie, and Earl each own 16.73333%

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of the Company’s shares as Trustee’s of that portion of Trust set up for their benefit and also each

own shares in their own name, summarized as follows:

Name Percentage of Total Percentage of Total Total

Shares Owned Shares Owned
Individually Through the Trust
Billy 16.600003% 16.73333% 33.33333%

Melonie 16.600003% 16.73333% 33.33333%

Earl 7.78333% 16.73333% 24.51666%

Stacey 8.81668% 8.81668%

100%

36. In 2019, the shareholders discussed updating the Company’s Bylaws, but never

discussed removing operational and financial management from Earl or otherwise changing the

manner in which the Company was to be managed.

37. In mid-2019, the Company sold a large property in downtown Ft. Myers, netting

the Company in excess of thirteen million dollars. Because the property generated significant

annual revenue, Earl noted for each of the shareholders that Company profit distributions to each

of the shareholders would be reduced accordingly going forward. The proceeds of the sale were

distributed to the shareholders, who had the ability to invest same on an individual basis to help

offset the reduction in cash flow from future Company profit distributions. Billy promptly spent

a large portion of his share of the net proceeds. Recognizing that gaining control over the

operational and financial management of the Company would afford him control over further funds

that could be distributed to him, Billy put in place his plan to oust Earl.

38. In 2019, the four shareholders (individually or through a representative) had

numerous discussions regarding Billy’s wish to include his wife as a Permitted Transferee. In

response, Earl and Stacey urged Billy to consider a trust for the benefit of his four sons and

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continued to suggest to Billy that such an arrangement could help facilitate his sons’ potential

participation in the operational management of the Company as shareholders through such a trust.

39. After many rounds with the lawyers, a document was drafted that would modify

the definition of Permitted Transferee. Stacey signed the document on December 6, 2019 and

forwarded the signed document to her father Earl. Earl signed the document on December 10,

2019 and provided it to Billy. On Saturday, December 14, 2019, Billy signed the document and

had the signed document in his possession when he met with his four sons on Sunday, December

15, 2019. Instead of telling his sons the truth regarding the changes to the Company’s documents

that would allow Billy to set up a trust with his sons as beneficiaries, but with his wife to have

rights to income during life, Billy lied to his sons regarding the efforts of Earl and Stacey to include

his sons within the family business. Billy did not tell his sons about the signed document in his

possession.

40. On December 16, 2019, Melonie executed the Amendment to Amended and

Restated Stock Buy-Sell Agreement attached hereto as Exhibit 4 (making such document

effective) that provided for a limited exception to the Permitted Transferee definition with respect

to Billy’s Shares. In short, the shareholders agreed that Billy’s wife, Marilyn Smith, could be

named as a beneficiary of a trust holding his shares so long as the trust otherwise met the

requirements provided for in the Amended and Restated Stock Buy-Sell Agreement.

41. During 2019, Billy started persistently inquiring about the net worth of the

Company including Company owned real estate -- suggesting everyone needed appraisals, paid up

inventory value, vehicle values, retained earnings calculations, and more. Earl was concerned

about the manner in which Billy was going about this and the reasons. Billy never posed any

questions to Earl as President, but instead bypassed Earl and directed all inquiries to the

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Company’s Executive Vice President. Earl agreed that since the stock Billy owned had in the

Company was a significant asset for Billy that Billy had every right to request such information.

But Billy’s unreasonable persistence and continual avoidance of Earl began to raise concerns as to

Billy’s intent. This avoidance increased to the point that Billy would fail to respond to emails Earl

would send to shareholders requesting a reply. Instead Billy would reply only to the Executive

Vice President and not include Earl as a recipient. Thus, Earl became concerned that Billy was

not recognizing Earl as President and became even more concerned as to why Billy was only

looking at the “cash value” of the Company.

42. In February 2020, Earl visited with Billy to “clear the air.” At the time Earl had

full control of operational and financial management as the President of the Company, which he

would retain as President. Billy agreed if Earl and Stacey would vote to further amend the Buy-

Sell Agreement, Billy would agree to maintain Earl as President, who had control of operational

and financial management of the Company, without any interference from Billy.

43. After the meeting between the two brothers, on Monday, February 3, 2020, Earl

sent Billy a text message that stated:

Billy, Chris is contacting Erin to issue the modified Buy/Sell

agreement adding Marilyn as an additional approved heir of your
stock with full voting and distribution rights. As we discussed,
Stacey and I agree to this change with a condition.
That condition being that you will not initiate and will not vote for
removing me as president of the corporation. That will be
conditional upon both Stacey and I signing the new buy/sell
agreement after execution of this agreement.
When Erin completes these, they will be sent to you for your
review.
I’m pleased that this issue that was of great concern to you has
been resolved.
Earl

44. Billy texted back the same day:

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 I agreed you will not be removed as Pres.

45. And Earl replied the same day:

Yes, I know and appreciate that. I just want it in writing to avoid

any problems, conflicts, or concerns in the future.

46. In accordance with Billy’s and Earl’s agreement, the following two documents

were drafted and executed on February 13, 2020 (with Earl only executing after Billy had signed

both documents):

a. Amendment to Amended and Restated Stock Buy-Sell Agreement (attached

hereto as Exhibit 5) (hereinafter the “2020 Buy-Sell Amendment”), signed by

all shareholders, which added Billy’s wife, Marilyn Smith as a Permitted

Transferee;

b. Bill Smith, Inc. Voting Agreement (attached hereto as Exhibit 6), signed by

Billy and Earl, which provides in relevant part:

Earl E. Smith (“Earl”) has served the Corporation as an employee and

officer for approximately forty-nine years, currently serving as its
President. In recognition of that beneficial service to the Corporation
and to provide continuity in the Corporation’s operations, the
Stockholders have agreed that Earl should continue to serve as the
Corporation’s President for so long as he is willing.

**** **** ****

During the term of this Agreement, the Stockholders agree that (a)
they will not vote their Stock to remove Earl as a Director or as
President of the Corporation, (b) they will vote their Stock to approve
an amendment to the Articles of Incorporation and Bylaws of the
Corporation as necessary to provide that the shareholders of the
Corporation (and not the directors) shall elect the officers of the
Corporation, and (c) they will take such other actions as may be
necessary or required to keep Earl as President of the Corporation so
long as he is willing to serve.

47. Billy had no intent of leaving Earl in control of the operational and financial

management of the Company and fraudulently induced Earl into signing the 2020 Buy-Sell

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Amendment. In breach of his obligations under the Voting Agreement and in furtherance of his

fraud to obtain the 2020 Buy-Sell Amendment, Billy enlisted Melonie to tortuously interfere with

Earl’s rights under the Voting Agreement. As described below, after getting the concessions he

wanted, Billy immediately took action, with the assistance of Melonie, to eliminate Earl’s control

over the operational and financial management of the Company violating the Voting Agreement

which required Earl to stay in control “. . . to provide continuity in the Corporation’s operations .

. . .”

D. Billy’s Wrongful Takeover

48. In 2014, Billy was involved in a serious off road accident from which he has never

fully recovered. As a result of the effects of the accident, he began reducing his practice of law

(eventually selling the practice to his son).

49. Indeed, Billy (who will turn 75 on July 19, 2020) had been retired from his law

practice for a number of years when he decided to wrest operational management from Earl.

50. In furtherance of his fraudulent promise to his brother Earl to leave Earl in control

of the operational and financial management of the Company, as the lawyers were drafting the

Voting Agreement and 2020 Buy-Sell Amendment executed in mid February 2020, Billy was

scheming to:

• Revive the CEO position only held by his father and not held by anyone since his

father’s death in 2011;

• Re-write the Bylaws of the Company to give full executive supervision and

operational and financial management solely to the CEO;

• Re-write the Bylaws of the Company to eliminate the President’s role as executive

with control over operational and financial management of the Company;

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 • Re-write the Bylaws of the Company such that the President only has such duties

provided by the CEO or the shareholders.

• Appoint himself CEO.

51. Without any notice to the other shareholders, Earl or Stacey, Billy and Melonie

drafted and signed a whole new set of corporate documents, including Amended and Restated

Bylaws of Bill Smith, Inc. dated March 12, 2020 (attached hereto as Exhibit 7), Shareholders

Action By Written Consent without a Meeting of Bill Smith, Inc. (Exhibit 8) which included

Correctory Amended and Restated Bylaws of Bill Smith, Inc.

52. The net effect of these unilaterally drafted documents signed without notice to all

the shareholders was to eliminate continuity in the Company’s operations in breach of the Voting

Agreement through the removal of operational and financial management from Earl and vesting

of same in Billy – a person who has not spent any time in the unique and highly competitive

appliance and electronics retail business, has not spent any time managing such an appliance and

electronics retail business, or anytime managing his family’s appliance and electronics retail

business during the past almost 75 years. In voting for such documents, Melonie has tortuously

interfered in Earl’s rights under the Voting Agreement.

E. Irreparable Harm to Earl, the Company, and the Community

53. As Billy implemented his plan to take over operational and financial management

of the Company, the COVID-19 crisis began to take hold in our country. Earl immediately tasked

senior management to protect the jobs of the Company’s employees, as he had done during the

real estate crises that befell the area over a decade ago. Earl also suggested to senior management

that each employee receive a $500 bonus on their next paycheck to assist them with buying

supplies and other items that each employee might need. Billy objected to the bonus, but finally

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agreed to a reduced amount of $250 after senior management sounded the alarm and explained to

Billy that most hourly employees don’t have big monetary reserves needed to buy the extra food

and other supplies that would be needed as the COVID-19 pandemic expanded nationwide.

54. Contrary to the suggested direction given by Earl, Billy indicated to senior

management that the COVID-19 crisis was an opportunity for the Company to save costs by firing

all of the employees and re-hiring cheaper employees after the crisis had passed. Senior

Management objected, not only for the benefit of the employees, but because Senior Management

has been taught over the decades and knows that the success of the Company depends on the

training of its employees and their longevity and experience – all of which translates into excellent

customer service for the members of the community.

55. Earl’s and Billy’s contradictory approaches came to a head at the annual April 1,

2020 meeting of the directors and shareholders of the Company. Minutes before the meeting was

to start, Billy’s son and former law partner, Sawyer Smith, resigned from the Board. Noting her

and Earl’s objections to Billy’s improper actions and invalid corporate documents, Stacey

attempted to add a discussion of such events to the agenda for the meeting. However, Billy (his

improper takeover now complete) would not allow any discussion of his actions or the corporate

documents to occur declaring angrily that he was CEO and Stacey was out-of-order when she

persisted on speaking and further declaring that the issues would have to be resolved through

lawyers.

56. All conditions for the filing of this lawsuit and the counts pled herein have been

met, waived, or excused.

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 IV. Causes of Action

COUNT I – Breach of the Voting Agreement against Billy

57. Plaintiff incorporates and restates paragraph 1 through 56 as if fully restated herein

58. Billy and Earl entered into the Voting Agreement attached hereto as Exhibit 6.

59. At all times material hereto, Earl has been and is ready willing and able to serve as

President of the Company and to maintain his role as the person in charge of the operational and

financial management of the Company.

60. Pursuant to the terms of the Voting Agreement, Billy and Earl agreed that Earl “has

served the Corporation as an employee and officer for approximately forty-nine years, currently

serving as its President. In recognition of that beneficial service to the Corporation and to provide

continuity in the Corporation’s operations, the Stockholders have agreed that Earl should continue

to serve as the Corporation’s President for so long as he is willing.”

61. At the time Billy and Earl entered the Voting Agreement, Earl was the sole person

in charge of the operational and financial management of the Company, and Billy had no role in

the operational and financial management of the Company other than as a shareholder and director.

The only way for there to be continuity in the Company’s operations was for Earl to remain in

control of the operational and financial management of the Company.

62. Paragraph 1 of the Voting Agreement obligates Billy to maintain Earl as President

of the Company for so long as Earl is wiling to serve for the purposes stated in the Voting

Agreement’s recitals, including “to provide continuity in the Corporation’s operations.”

63. As further described in paragraphs 36 through 55 of this Complaint, Billy has

breached his obligations under the Voting Agreement by violating his obligation to maintain Earl

as President of the Company for so long as Earl is willing to serve for the purposes stated in the

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Voting Agreement’s recitals, including to provide continuity in the Corporation’s operations. Billy

has breached his obligations through preparing and voting to adopt documents that appoint Billy

as the Chief Executive Officer of the Company and that remove the management powers of the

President as they existed when he signed the Voting Agreement.

64. Earl does not have an adequate remedy at law. Indeed, in paragraph 5 of the Voting

Agreement, the parties agreed that “the parties shall have the right to enforce this Agreement

through specific performance of its provisions.”

WHEREFORE, Earl respectfully requests that this Court enter an injunction obligating

Billy to act in accordance with his obligations under the Voting Agreement and specifically to vote

to rescind the Correctory Amended and Restated Bylaws of Bill Smith, Inc. and take such other

and further actions necessary to restore Earl as President of the Company with the authority that

was vested in Earl at the time of the execution of the Voting Agreement or, alternatively, enter an

order removing Billy as CEO of the Company and declaring that control of the management and

financial operations of the Company are the responsibility of Earl as the President of the Company.

COUNT II – Tortious Interference against Melonie

65. Plaintiff incorporates and restates paragraph 1 through 56 as if fully restated herein

66. Billy and Earl entered into the Voting Agreement attached hereto as Exhibit 6.

67. Given the terms of the Voting Agreement, Earl has the right to continue as President

of the Company in control of the operational and financial management of the Company for so

long as he is willing to serve to provide continuity in the Company’s operations.

68. Melonie is aware of the Voting Agreement and Earl’s rights under the Voting

Agreement.

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 69. Melonie tortuously interfered with Earl’s rights under the Voting Agreement by

participating in Billy’s breach of the Voting Agreement through her participation in and signature

upon the improper documents (including Exhibits 7 and 8), signed in violation of the Voting

Agreement.

70. Earl does not have an adequate remedy at law.

WHEREFORE, Earl respectfully requests that this Court enter an injunction obligating

Melonie to take such actions necessary to restore Earl as President of the Company with the

authority that was vested in Earl at the time of the execution of the Voting Agreement, or,

alternatively, enter an order removing Billy as CEO of the Company and declaring that control of

the management and financial operations of the Company are the responsibility of Earl as the

President of the Company.

COUNT III – Fraud in the Inducement against Billy

71. Plaintiff incorporates and restates paragraph 1 through 56 as if fully restated herein

72. Billy made a false statement of material fact when he promised to Earl that Earl

could remain in control of the operational and financial management of the Company for so long

as Earl is willing.

73. At the time Billy made this material misrepresentation he knew it to be false

because Billy wanted to take over operational and financial control of the Company and was

planning to do so after inducing Earl into signing the 2020 Buy-Sell Amendment.

74. Billy made the material misrepresentation that Earl could remain in control of the

operational and financial management of the Company for so long as Earl is willing in order to

induce Earl to sign the 2020 Buy-Sell Amendment.

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 75. In reasonable reliance on Billy’s representations, Earl signed the 2020 Buy-Sell

Amendment.

76. Earl did not sign the 2020 Buy-Sell Amendment until he had Billy’s signature on

the Voting Agreement.

77. Earl would not have signed the 2020 Buy-Sell Amendment if Billy were permitted

to take over the management of the Company, but instead signed the 2020 Buy-Sell Amendment

based on Billy’s representation that Earl could remain in control of the operational and financial

management of the Company for so long as Earl is willing.

78. Earl does not have an adequate remedy at law.

WHEREFORE, Earl respectfully requests that this Court void the 2020 Buy-Sell

Amendment as being the product of fraud.

COUNT IV – Action Pursuant to Section 607.0750, Fla. Stat.

79. Plaintiff incorporates and restates paragraph 1 through 56 as if fully restated herein

80. Section 607.0750 provides for a direct action by one shareholder against another

shareholder to enforce a shareholder’s rights and interests arising from the articles of

incorporation, the bylaws, or independently from another document such as a voting agreement.

81. As alleged herein, Earl was operating as the President of the Company with control

over the management and financial affairs of the Company. Through the wrongful acts alleged in

paragraphs 36 through 55 of this Complaint, Billy violated the terms of a Voting Agreement and

wrongfully put in place amended bylaws that removed Earl’s control as President over the

management and financial affairs of the Company.

82. Through his wrongful acts, Billy has actually injured Earl in a manner that is

personal to Earl and is not an injury solely the result of an injury suffered by the Company

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(although Earl reserves his right to amend his Complaint to add such other and further causes of

action that may be necessary to protect the Company).

WHEREFORE, Earl respectfully requests that this Court enter an injunction obligating

Billy to act in accordance with his obligations under the Voting Agreement and specifically to vote

to rescind the Correctory Amended and Restated Bylaws of Bill Smith, Inc. and take such other

and further actions necessary to restore Earl as President of the Company with the authority that

was vested in Earl at the time of the execution of the Voting Agreement, or, alternatively, enter an

order removing Billy as CEO of the Company and declaring that control of the management and

financial operations of the Company are the responsibility of Earl as the President of the Company.

COUNT V – Declaratory Judgment against Billy and Melonie

83. Plaintiff incorporates and restates paragraph 1 through 56 as if fully restated herein.

84. This count is brought pursuant to Chapter 86, Florida Statutes that provide the Court

with the authority to declare rights, status, and other equitable or legal relations, including rights

and obligations arising from the corporate documents attached hereto.

85. There is a bona fide, actual, present and practical need for a declaration regarding

the rights of Earl and the obligations of Billy and Melonie arising from the Company’s Bylaws,

the Voting Agreement, and the Correctory Amended and Restated Bylaws of Bill Smith, Inc.

86. It is Earl’s position that a fraud has been committed in an effort to remove control

of operational and financial management vested in the office of the President, which office he is

entitled to hold for so long as he is willing pursuant to the terms of the Voting Agreement. Billy

and Melonie disagree with Earl’s position.

87. It is Billy and Melonie’s position that they validly executed amendments to the

Bylaws that delegate to the CEO operational and financial management of the Company, that Billy

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has been validly appointed as CEO, and that Earl is not entitled to control of operational and

financial management of the Company for so long as he is willing to act as President. Earl

disagrees with Billy and Melonie’s position.

88. This dispute can be resolved by the Court based on ascertainable facts, including

from the documents attached to the Complaint, the testimony of the parties, other documents, and

the testimony of witnesses to the events set forth herein.

89. There is an actual, present, adverse and antagonistic interest in the subject matter

hereof.

WHEREFORE, Earl respectfully requests that this Court declare that : (i) the Correctory

Amended and Restated Bylaws of Bill Smith, Inc. are null and void as they were entered in

violation of the Voting Agreement; (ii) Billy was improperly appointed as CEO in violation of the

Voting Agreement and the Bylaws and is removed from the office of CEO; (iii) the terms of the

Voting Agreement require Billy to vote to maintain Earl as President in control of the operational

and financial management of the Company for so long as Earl is willing to serve as President; (iv)

under the enforceable and applicable documents of the Company, and unless removed by a vote

of the shareholders that does not violate the Voting Agreement or any other corporate document,

Earl shall serve as President for so long as he is willing with control of operational and financial

management of the Company in accordance with the Bylaws of the Company.

COUNT VI –Civil Conspiracy against Billy and Melonie

90. Plaintiff incorporates and restates paragraph 1 through 56 as if fully restated herein.

91. Billy and Melonie conspired to fraudulently induce Earl to sign the 2020 Buy-Sell

Amendment by participating in a scheme that misled Earl into believing that he would be

maintained as President in control of the operational and financial management of the Company.

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 92. After conspiring in the making of fraudulent misrepresentations by Billy to Earl as

set forth in paragraphs 36 through 55 of this Complaint, Billy and Melonie in furtherance of the

fraud and in violation of Billy’s obligations under the Voting Agreement, appointed Billy as CEO

and gave Billy full control of the operational and financial management of the Company.

93. The conspiratorial acts of Billy and Melonie have harmed Earl and the Company

by removing from Earl the operational and financial management of the Company.

WHEREFORE, Earl respectfully requests that this Court enter an injunction obligating

Billy and Melonie to take such actions necessary to restore Earl as President of the Company with

the authority that was vested in Earl at the time of the execution of the Voting Agreement, or,

alternatively, enter an order removing Billy as CEO of the Company and declaring that control of

the management and financial operations of the Company are the responsibility of Earl as the

President of the Company.

JURY TRIAL DEMANDED

Plaintiff requests a jury trial for all issues so triable.

Respectfully submitted

ZUMPANO PATRICIOS, P.A.

312 Minorca Avenue
Coral Gables, FL 33134
Tel: 305-444-5565
Fax: (305) 444-8588

By: /s/ Leon N. Patricios

Leon N. Patricios
Fla. Bar No. 0012777
lpatricios@zplaw.com

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