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ANN S. REILLY Plaintiff v. Jennifer Brinkley and Jules Nyssen, Defendants.

No. 14-cv-01048

 

AMENDED COMPLAINT

 

1. At all times hereinafter mentioned, plaintiff was and still is a resident of Virginia.
2. Defendants Brinkley and Nyssen, are residents of North Carolina.
3. Monetary damages in excess of $250,000.00
4. The jurisdiction of Federal Court is invoked pursuant to §28 U.S.C 1332 (a)(1),
Diversity of Citizenship, and Fed. R. Civ. P. 4(e), minimal contact in personal
jurisdiction.
At all times Plaintiff is referred to as (“Reilly,”) Defendant Brinkley, as (“Brinkley”),
Defendant Nyssen as (“Nyssen”).

 

Cause Against Nyssen

 

6.Reilly retained Nyssen’s services as her buyer’s agent to find an investment/resale
horse while he was in Holland in early 2012. The intention was to buy a horse for
$30,000.00, to sell quickly for a profit. At that time, Reilly had made arrangements to
train with Nyssen. Reilly had previously purchased another horse through Nyssen as
her agent/trainer and trained with Nyssen on her horse “Leila” for several months in
2009.
7. Based on their prior dealings with each other, Nyssen was aware of the extent of Ms.
Reilly’s dressage sales knowledge, as she had trained with Nyssen in 2009 for several
months and Nyssen was her trainer/purchasing agent for the purchase of her first dressage

horse, as well as the owner of that horse’s selling agent. As her trainer and
buyer’s agent, Nyssen’s knowledge, skill, and expertise of the dressage horse buying
and selling business far exceeded. Reilly’s. Accordingly, and as it would be expected,
Reilly relied on Nyssen’s dressage horse knowledge, skill and expertise to assist her
and advise her on finding the right horse for this intended investment/resale purpose.
8. Nyssen did not find a suitable horse in Holland. However, when he returned from
Holland in February of 2012, knowing Reilly’s intention of purchasing an
investment/resale horse, Nyssen solicited to her that she purchase “”Ascari”,” a 7 year
old, Dutch Warmblood, whom he had brokered the purchase for in Holland,
approximately two years earlier for clients, exactly whom is in question. In an effort to
explain to Ms. Reilly that “Ascari” would satisfy her investment/resale purpose, Nyssen
represented that “Ascari” was underpriced at $60,000.00 and his true present value
was $150,000.00. Nyssen told Reilly that “Ascari” was owned by the Estate of “a man
who died.” Nyssen also told Reilly that the Estate only wanted the money back that
they paid for “Ascari” when he was bought in Holland. “Ascari”‘s training level at the
time was USDF Level 4, unconfirmed.
9. On February 23 to 24, 2012, Reilly traveled from Wellington, FL to Statesville, NC

to see “Ascari”. During that visit Reilly asked Nyssen, her agent, and trainer if she should
ride “Ascari”. Nyssen told her there was no need for her to ride him, he was fine. Reilly

wanted to spend $30,000.00 on an investment horse. Nyssen, Reilly’s purchasing
agent, persuaded Reilly that “Ascari”, at $60,000.00 was a great/resale investment who
would go immediately back on the horse sales market for $150,000.00 after Reilly
purchased him. During this visit Reilly was told by Nyssen the “man who died” was
Jennifer Brinkley’s father. Nyssen instructed Reilly not to mention the horse and sale to
Brinkley because it was a sore spot with her. At this point, Reilly was under the
assumption that “Ascari” was owned by the Estate of Ms. Brinkley’s deceased father.
Brinkley was not present during Reilly’s February visit to view “Ascari” and did not speak
to Reilly at any time during the sale process, which is common in the horse sales
business, and an important fact in the fraud stated below.
10. In reliance upon Nyssen’s representations and extensive experience with “Ascari”,
Reilly purchased “Ascari” for 60,000.00 with the intention that “Ascari” could and would
be sold quickly and profitably around his “true” value according to Nyssen which was
$150,000.00. Reilly wire transferred $60,000.00 to Nyssen’s “stable” bank account for
the purchase of “Ascari” on March 12, 2012, asking for a Bill of Sale in her name for
“Ascari”. Nyssen promised he would provide Reilly with one quickly. Reilly never
received a Bill of Sale for “Ascari”, although she asked approximately 20 times. A Bill of
Sale, under the UCC 2-201is required for sales over the price of $500.00 for “goods”

such as a horse, and is the only legal document of horse ownership per the United
States Equestrian Federation (USEF). The Bill of Sale is important to this case because
Nyssen and Brinkley were unable to provide a “legal” bill of sale because Nyssen
retained 27,000.00 of the purchase price of “Ascari” for himself. That is, Reillywired
Nyssen 60,000.00; Nyssen gave Brinkley, the alleged owner of “Ascari” $30,000.00.
This made the price of “”Ascari”,” $30,000.00, not $60,000.00, as Nyssen represented

the price of “”Ascari”” to Reilly, whose 10% commission Nyssen told her was included in
the $60,000.00. (A 10% commission is the usual and customary commission for horse
sales and the amount Reilly paid Nyssen when purchasing her first dressage horse from
Nyssen-$18,000.00 commission for the $180,000.00 purchase price).This is fraud.
Nyssen’s misrepresented the price of “”Ascari”,” owner of “”Ascari”,” and instructed
Reilly not to mention the sale to Brinkley. The price of “”Ascari”,” the owner of “”Ascari””
and telling Reilly not to talk to Brinkley about the sale are present, material facts.
Nyssen’s misrepresentations to Reilly of present, material facts were made so that he
could make more money off the sale of “”Ascari”,” than the $6,000.00 commission from
Reilly and in selling the horse to Reilly and telling her she could not ride “”Ascari”,” he
assured himself of a $1,000.00 a month salary training and trying to sell “”Ascari”” for
Reilly in which he would make another commission if he did sell “”Ascari”.” Nyssen
intentionally had Reilly wire the funds for “Ascari” to him, rather than the owner, in order
to hide the fact the “”Ascari”‘s” actual price was $30,000.00, not the price of $60,000.00
he represented to Reilly (see Exhibit A). Either Nyssen or Brinkley deposited the
$30,000.00 into the Stonegate Farm account on March 13, 2012, they day after Nyssen
received the wire transfer from Reilly (see Exhibit B). Reilly trustfully relied on Nyssen,
and his duty to represent her fairly as her buying agent in the sale of “”Ascari”” to her.
Neither Nyssen nor Brinkley can provide proof that “Ascari” cost $60,000.00 when he
was purchased in Holland (see Exhibit C). Nyssen, acting as Reilly’s buying and
Brinkley’s selling agent defrauded Reilly of $27,000.00 in the sale to her of “Ascari”, thus
hurting her financially by cheating her out of $27,000.00.
11. In horse sales it is not uncommon for the buyer and seller to not meet or talk during
a sales transaction. It is a usual and customary practice in equine sales that buyers’
and seller’s have their trainer or an agent conduct the business, and this practice is
unique to the equine horse sales industry. This practice has also been fraught with
fraud. Kentucky, California, and Florida have all enacted laws to help prevent horse
sales fraud, as occurred in this case to Reilly. In efforts to do so, these states require a
Bill of Sale and disclosure of Dual Agency. The UCC applicable to Virginia or North
Carolina sales requires a Bill of Sale and prohibits Dual Agency. See Exhibit D for a
copy of the type of Bill of Sale Reilly was expecting to receive from Nyssen and
Brinkley, as this is the Bill of Sale she received from the first horse she purchased using
Nyssen as her trainer/agent, in which she paid him his $18,000.00 commission directly.
12. Unfortunately, the issues in the sale of “”Ascari”” did not end with just the money
fraud. Nyssen materially misrepresented the resaleability of “Ascari” to Reilly, because
“Ascari” had soundness issues and dangerous propensities to the rider that Nyssen hid
from Reilly. Nyssen acted as Reilly’s purchasing agent by calling the Pre Purchase
Exam veterinarian to arrange the exam, and representing her interests as agent at the
time of during the Pre Purchase Exam (Exhibit E). Reilly requested Nyssen, her agent
representing her at the vetting of “”Ascari”” by Travis Blackwelder, DVM to have
“”Ascari”” ridden for the veterinarian, drug tested, and a regular blood panel, all current
standard practices included in a Pre Purchase exam. Nyssen, as Reilly’s agent failed to
instruct Dr. Blackwelder to perform these exams. Had these exams been performed, Dr.
Blackwelder may have found the “defects” in “Ascari”, which made him an unsuitable

investment/resale horse for Reilly’s intended purpose. Nyssen did not advise Reilly that
he neglected to represent her vetting requests to Blackwelder. Nor did Nyssen disclose
to Reilly that “”Ascari”” had been in an accident, June 2011, which left him with a
degenerative spine condition. Nyssen breached his contracted duty to Reilly as her
sales agent representing her at the Pre Purchase Exam of “Ascari” by not asking Dr.
Blackwelder to perform the exams and tests on “Ascari”, which Reilly had asked Nyssen
to have Blackwelder perform, and by not disclosing “AscarTs June, 2011 accident to
her (See Exhibit E).
13. Unaware of the aforementioned defects in Ascari, which preclude an ethical sale,
Reilly had Nyssen put “Ascari” immediately back on the dressage sales market on
March 13, 2012, and remained for sale on Nyssen’s dressage website under sale
horses. During March, after Reilly’s purchase of “Ascari” Nyssen called her and
informed her he had a 16 year old boy coming to look to purchase a dressage horse,
and it was decided if the boy looked at “Ascari” he would be priced at $125,000.00.
14. When Reilly arrived with her other horses for training on or about Friday, March 31,
2012, she was greeted by Jesus, a groom employed by Brinkley who also helps Nyssen
with his horses, but is paid by Brinkley. It is Reilly’s understanding that Jesus is an
illegal immigrant, unless his immigration status has changed. Jesus, asked Reilly if she

purchased “Ascari” and she said yes. Jesus reported to Reilly that “Ascari” was “loco”
and had flipped over backwards when he and Nyssen were attempting to get “Ascari” in
the wash stall, and hurt himself. Reilly became alarmed as Nyssen did not disclose this
accident to her. The fourth day after Reilly arrived for training with her other horses,
when Reilly was present waiting to watch Nyssen ride “Ascari”, Nyssen reported to.
Reilly for the first time, after Reilly bought “Ascari”, that “Ascari” was “mentally unstable”
and unsuitable for Reilly, Brinkley, or any amateur to ride. Nyssen has confused the
use of his term amateur. The only distinction between and amateur and professional
rider is whether or not they are paid money to ride or train horses. The
professional/amateur distinction is not differentiated by skill level in accordance with
USEF rules for competition. For example, Reed Kessler, an amateur rider,
respresented the United States in the 2012 Olympics in London, England on the United
States Show Jumping Team. Reed’s skill level is that of a world class professional, yet
she is an amateur under USEF rules.
15. Obviously, Nyssen’s admission that neither Reilly nor Brinkley could ride “”Ascari””,
as well as what Jesus informed Reilly of, came as quite a shock to Reilly since such
behaviors completely contradict the intended purpose of her purchase—a purpose
Nyssen was well aware of from the beginning-merchantability for resale-“Ascari” was
extremely difficult to ride according to Nyssen and had been in an accident according to
Jesus. Additionally, approximately seven days later Nyssen informed Reilly that
“Ascari” had a “mean buck” and bolting tendency where he frequently would rear
straight up and leap in the air then buck. Nyssen also informed Reilly that “Ascari” may
be an unstoppable runaway horse. Nyssen did so after Reilly was awaiting for him and
“Ascari” to perform in the outdoor ring at Stonegate Farm, and it took him and “Ascari”
and unusually long time (30 minutes) to appear at the outdoor ring. Nyssen informed

Reilly that “Ascari” was humping his back badly (a sign a horse might buck or is
uncomfortable with the saddle and or rider on him) and spooking, and he could not
leave the indoor arena until he had the horse, “Ascari”, under control. The post
purchase disclosure of “”Ascari”‘s” dangerous propensities, in addition to Reilly learning
of “”Ascaris” accident, made him an terrible investment/resale horse, because he was
fraught with issues that would make an “ethical” sale of the horse very difficult, as well
as finding a rider to purchase “”Ascari”” who was at an extremely high skill level for
riding horses who “have a mean buck,” and “may run away and not stop” who would
want to deal with “”Ascari”*s” issues and pay a large sum of money to purchase him.
16. Nyssen misrepresented “”Ascari”” to Reilly prior to her purchase. According to what
Nyssen stated, due to the unpredictability of “AscarTs bucking, bolting, and possibly
runaway behaviors, “Ascaris dangerous propensities negate the ability to sell the horse
for an increased profit as Nyssen initially proposed to Reilly, and presented Reilly with
merchantability, ethical and liability issues if she did resell “”Ascari”.”
17. Moreover, “Ascaris behaviors are so extremely dangerous to a potential rider, Ms.
Reilly, unsuccessfully tried to resolve this matter with Nyssen, by asking Nyssen to take
“”Ascari”” back several times and return her money (2 previous Demand Letters, a claim
filed in the Superior Court of Iredell County, NC which Reillywas forced to dismiss
because opposing counsel would not grant the attorney she hired a reasonable
extension period to prepare for the Hearing filed by Defendants for Motion for Summary
Judgment, several email attempts, and a mediation session with Judge Kim Taylor).
18. Reilly, whom had planned to train with Nyssen on Dennis until October, 2012, was
very upset over Nyssen’s nondisclosure of “AscarTs unsuitability for resale, his
dangerous propensities, nondisclosure of AscarTs “true” owner whom he was acting
also as a sales agent for, and was under such mental duress that she removed Dennis
and Leila from his training after two weeks. Since “Ascari” was a big question mark for
resale due to his nondisclosed propensities by Nyssen to Reilly prior to purchase, or by
Brinkley, who is ultimately responsible for the actions of her sales agent for “Ascari”,
Reilly removed “Ascari” from sales and training with Nyssen because she saw no
reason to “waste” $1,000.00 a month paid to Nyssen to train and act as her sales agent
for “Ascari”, when it became evident to Reilly that she had been deceived and cheated
by Nyssen, by her purchase of “”Ascari”” and into paying him a salary for attempting to
train a horse who had many problems, and was not resaleable for $150,000.00. Reilly
put “Ascari” back on the sales market, for what she paid plus the money she had
invested in him for board, training, shipping, shoeing and vetting, which totaled
$65,000.00, and disclosed the defects in “”Ascari”” to the two interested parties who
called her regarding purchasing “”Ascari”.” One of these interested parties wrote Reilly
a letter thanking her for her honesty in disclosing “”Ascaris” defects. The other
inquirer had her trainer, a grand prix dressage rider watch the video of Nyssen on
“Ascari” and her trainer said “”Ascari”” had something wrong with his back. At the same
time Reilly was asking Nyssen, for relief from this deceptive sale.
19. In June 2012, Reilly sought the advice of Dr. Steve Soule, FEI Veterinarian (see Exhibit F),

and a rider himself, as to whether “AscarTs dangerous propensities were
pain related. Dr. Soule coordinated with Dr. John Nolan of Piedmont Equine Practice,
The Plains, VA, Dr. Sarah Patowski, of Palm Beach Equine Clinic, Palm Beach, FL,
Lauriejean Chamberiin of Equine Body Works, and later Dr. Daniel Flynn of Georgetown
Equine, Charlottesville, VA. Reilly has been advised by all of these veterinarians
“Ascari” IS NOT SAFE to be ridden by anyone and must be treated for his spine injuries
and retire due to his spine and “old” broken rib conditions, which took greater than one
year to develop, prior to “AscarTs first examination by Dr. Soule, from an accident in
which “”Ascari”” was either flipped over backwards, fell down, or ridden for a prolonged
period of time in a saddle that caused some of the spine injuries. This final collaborative
prognosis by the veterinarians aforementioned was made in October 2012 (see Exhibit
G). Thus, “Ascari” cannot be ridden by any potential buyer and therefore cannot even
be sold for the purchase price paid by Ms. Reilly, causing Reilly substantial financial
injury. Reilly removed “”Ascari”” from all advertisements for the resale of him when she
realized she could not ethically sell an injured horse.
20. In August 2012, Reilly had Yvonne Ocrant, of Hinshlaw and Culbertson, LLC send
Nyssen and Brinkley (who seems to be the owner as her name is on his United States
Equestrian Federation Lifetime Horse Registration and his USDF Lifetime Horse
Registration) a Demand Letter to which neither Nyssen nor Brinkley responded to in the
time period requested for response.
21. As a result of Nyssen’s breach of contract with Reilly, his deceptive
misrepresentations, and omissions, Ms. Reilly has incurred extensive costs and
expenses on a horse she learned in August of 2012 she should not try to sell, and let
alone sell for the profit Nyssen represented, and has retired “Ascari” per veterinary
advice on humane treatment of “Ascari”. Ms. Reilly has therefore suffered damaged
exceeding the $60,000.00 purchase price, including, but not limited to transportation
costs, boarding costs, medical expenses, veterinary expenses, and legal fees. At the
time of filing the costs are approximately $130,000.00, which includes “”Ascaris”
fraudulent purchase price.
22. Nyssen’s false representations and omissions of material facts regarding “Ascaris
disposition were made with the intent to deceive Ms. Reilly into purchasing “Ascari” for
his monetary gain through the proceeds of the sale in which he retained $30,000.00
dollars of the purchase price. A fifty percent commission was not disclosed to Reilly
prior to her purchase of “”Ascari”” ( normal commission on the sale of a horse is ten
percent) and Reilly asked Nyssen if she needed to add 6,000.00 commission on to the
purchase price and Nyssen said her commission was included in the purchase price if
$60,000.00 and by receiving his monthly $1,000.00 training fee, for “Ascari”, a horse
who would never have been suitable as represented by Nyssen to Reilly for the
intended purpose she retained him as her agent to purchase a horse for.
23. This is actionable conduct constituting fraud, material misrepresentation, breach of
contract, breach of implied warranty of fitness for particular purpose, breach of
merchantability and breach of fiduciary duty under the UCC Article 2, and Virginia and

North Carolina laws. Such claims allow for recoverable,monetary damages, including
attorneys’ fees. Neither Nyssen nor Brinkley can provide evidence of the price paid for
Ascari”” when he was purchased in Holland. Itll
24. The injuries, damages, and losses sustained by the Reilly were caused by Nyssen,
and Brinkley’s responsibility as co owner of the horse “”Ascari”,” violations of the
Uniform Commercial Code (UCC, Article 2, “Sales of Goods) and the North Carolina
Unfair and Deceptive Trade Act, N.C.G.S. 75-1.1, and Virginia fraud and deceptive
trade laws.
25. Despite Ms. Reilly’s repeated attempts to reach an amicable and expedited
resolution of this matter since May 2012, Nyssen and Brinkley have refused to resolve
this matter with Reilly.

 

Cause Against Brinkley

 

26. At the time of the sale, “Ascari”, represented to Reilly by her sales agent Nyssen,
as owned by the Estate of the late Albert Schneider, was in training with Nyssen at
Jennifer Brinkley’s Stonegate Farm in Statesville, NC. For many years Nyssen has
personally trained. Brinkley, her show horses, and many other owners and horses at
Stonegate Farm. Nyssen consistently rides and shows Brinkely’s horses, and uses her
Stonegate Farm as his training and sales facility. Nyssen acts as Ms. Brinkley (and
other horse owner’s) broker in buying and selling their horses nationally and
internationally.
27. As the daughter of the alleged owner of “Ascari”, Brinkley had intimate firsthand
knowledge of “Ascaris performance levels and dangerous propensities as she watched
Nyssen train “”Ascari”” almost daily, his veterinary bills were addressed to her (including
the bill where “Ascari” received treatment with Reserpine, a drug that sedates almost
paralytically a horse for two weeks and an anti-inflammatory both of which are
contraindicated for a horse who two weeks earlier had been diagnosed with an ulcer,
most likely after his spine and rib were injured), and supervised activities at Stonegate
Farm where she acts as CEO, frequently watched and consulted with Nyssen on the
training, showing, and performance of horses owned by her and/or whom she
represented, and had the knowledge of or instructed Nyssen to place “Ascari” on the
equine sales market to sell, at a the price of $100,000.00, a purported profit, soon after
“Ascari” arrived at Stonegate Farm from Holland during the summer of 2010.
28. Having years of horse sales experience, Brinkley knew, or should have known, that
“Ascari” was “damaged goods” due to his extremely dangerous propensities and
not suitable to legitimately and responsibly sell to anyone. Had Reilly known Brinkley
was the owner or co-owner of “”Ascari”” she would not have purchased him under the
conditions stated to her by Nyssen since Reilly is aware that Brinkley would not sell a
good investment horse at no profit, and the horse most likely had a defect that caused
Brinkley to want to sell the horse to cut her losses. It was never disclosed to Reilly that
Brinkley was the owner of “Ascari”, it was only disclosed to Reilly that “Ascari” was

owned by the Estate of a man who died, and later it was Brinkley’s father. Reilly
discovered Brinkley’s father’s name by Googling “Jennifer Brinkely death notice” and
came up with her name as daughter of the late Albert Schneider in July 2010. Had
Brinkley issued Reilly a legal equine Bill of Sale, instead of saying “oh do we have to do
one,” in mid April, 2012, all of these issues would have been avoided because Reilly
would not have purchased “”Ascari”” from Brinkley, full well knowing Brinkley would not
sell a good horse at a reported loss according to Nyssen, her sales agent for “”Ascari”.”
29. Had Brinkley disclosed “Ascaris dangerous propensities and injury in a standard
equine Bill of Sale prior to purchase, Ms. Reilly would not have purchased
“Ascari”. Reilly reasonably relied, to her detriment and financial injury, on Brinkley’s
omissions of “Ascari’s” true purchase price of $30,000.00, any such dangerous
behaviors and injury of “Ascari” customarily disclosed in a Bill of Sale agreement. Reilly
asked for the agreement prior to and during the sale through her agent Nyssen, and
Brinkley failed to provide one. When Reilly first saw Brinkley in person, during the
second week of April 2012, she asked Brinkley for the Bill of Sale for “Ascari” and
Brinkley’s response was “oh, do we have to do one,” Reilly said yes I need one. As a
result of Brinkley’s deceptive misrepresentations, and omission, Reilly has incurred
extensive costs and expenses on a horse who cannot be ridden, sold, or let alone sold
for the profit Nyssen represented, and has retired “Ascari” per veterinary advice on
humane treatment of “Ascari” see Exhibit ( F and G). Reilly has therefore suffered
damaged exceeding the $60,000.00 purchase price, including, but not limited to
transportation costs, boarding costs, medical expenses, veterinary expenses, and legal
fees.
33. Brinkley’s omissions of material facts regarding “Ascari’s” disposition were made
through her agent, Nyssen, with the intent to deceive Reilly into purchasing “Ascari” for
her monetary gain through the proceeds of the sale. In the equine sales industry it is
“usual and customary” practice that owners are responsible for the actions of their
agents, and this has been held by courts throughout the United States. This is
actionable conduct constituting violation of the UCC, Article 2, and the North Carolina
Unfair and Deceptive Trade Act N.C.G.S. 75-1.1, and Virginia laws regarding fraud,
material misrepresentation, breach of contract, breach of implied warranty of fitness for
particular purpose and breach of fiduciary duty. Reilly has been financially hurt by
Brinkley’s actions and has continuing monthly expenses on a “worthless horse,
“”Ascari”” who cannot be ridden or ethically resold.
34. Despite Ms. Reilly’s repeated attempts to reach an amicable and expedited
resolution of this matter since May 2012, Brinkley has refused to resolve this matter.

Respectfully Submitted,
Ann S. Reilly

 

View Amended Complaint

Defendants’ Motion to Dismiss Amended

Order

Dismissed without prejudice for lack of personal jurisdiction

 

Lawsuit: Jules Nyssen Sells Client Rogue Horse Posed as Dressage Investment