No. 5:12-CY-7-OC-32TB
AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
Plaintiff, LOUISE PRIVITERA, by and through her undersigned attorney sues the Defendants, ELIZABETH MANDARINO, individually and AMBER HILL FARM, LLC for damages and state as follows:
GENERAL ALLEGATIONS
1. This is an action for damages in excess of Fifteen Thousand Dollars ($15,000.00) and is therefore, within the jurisdiction of this Court.
VENUE
2. At all times material, Plaintiff, LOUISE PRIVITERA, was and is a resident of Central Islip, New York, Suffolk County. PRIVITERA has filed a cost bond pursuant to Florida Statute 57.011 (2011).
3. Venue is proper in Marion County, Florida as Defendants have significant contact with this county. As of December 2011, Defendants have leased a farm located in Marion County, Florida to conduct their equine sales business through April 2012. By information and belief, Defendants have also entered into a purchase agreement for the real estate located in Ocala, Florida, Marion County.
4. At all times material to the allegations m this Complaint, ELIZABETH MANDARINO (hereinafter “MANDARINO”) was and is a resident of Marion County, residing in Ocala, Florida.
5. At all times material to the allegations in this Complaint, ELIZABETH MANDARINO was also doing business as AMBER HILL FARM, LLC.
6. At all times material to the allegations in this Complaint, AMBER HILL FARM, LLC, was a registered New Jersey corporation doing business both in New Jersey, New York, Virginia and Florida.
FACTS
7. Plaintiff, LOUISE PRIVITERA, had been approached by Defendant, MANDARINO, who advised PRIVITERA that she would like to invest in German imports with PRIVITERA as a fifty percent investor with MANDARINO being a fifty percent investor.
8. This introduction was done through Stephen Hirsch, a young professional in the equine business who had prior ties to PRIVITERA and was employed with MANDARINO.
9. Defendant, MANDARINO held herself out as an agent who, through her training, experience and skills, selected, bought and sold quality show horses from Germany.
10. Defendant, MANDARINO, advised Plaintiff, PRIVITERA that she hand picks quality show horses to represent based on their breeding, show history, training and abilities.
11. Based on representations of MANDARINO and her employee, Stephen Hirsch, Plaintiff, PRIVITERA agreed to consider investing in some equine imports for resale purposes.
12. On or about September 2011, MANDARINO, discussed a few potential horses with Plaintiff, PRIVITERA. Mr. Hirsch, prior to being employed by Defendants had known of these horses. He further had traveled to Europe and hand selected FOUR equines known as Cyrus, L’Esperado, Fresh Prince and Emporion, as equines for good investment.
13. On or about September 2011, Hirsch and MANDARINO negotiated a purchase of these FOUR equines from Rainer Schugelt, an overseas agent and broker, for the sum total of 103,000 euros or approximately $140,000.00. (See Exhibit A1 attached). MANDARINO, unbeknownst to PRIVITERA, attempted to negotiate further with the agent on her own behalf, however, the owners of said horses had already been advised of the purchase price thus MANDARINO negotiated that the next two horses purchased by MANDARINO would be afforded a discount. This was never disclosed to PRIVITERA.
14. MANDARINO and PRIVITERA agreed to enter into a partnership on said horses in September 2011 with each making a payment of 50% of the sale price and to split all costs 50/50. See Exhibit 1A attached as prepared by MANDARINO noting the four horses, their prices in Euros and US Dollars, and the amount per horse to ship four horses to the United States. Exhibit 1A clearly denotes PRIVITERA’s portion as 50% of $170,000, or $85,000. MANDARINO advised PRIVITERA that she has buyers waiting and that the
horses would be sold within 90 days of purchase. The parties further agreed upon the sale of each equine to split 50/50 the amount received for the purchase.
15. Neither party reduced to writing any fmiher terms of the partnership. The horses arrived in the United States approximately October 10, 2011, however, only three arrived. Emporion never arrived. MANDARINO failed to explain to PRIVITERA where Emporion was located or any reimbursement for the purchase of Emporion of $5,000 or the shipping of $7,500. In other words, PRIVITERA was due reimbursement of $6,250.00.
16. In November 2011, MANDARINO supplied PRIVITERA a spreadsheet for each horse identifying the initial cost of each horse; their accounting of monies invested by each including shipping from overseas, pre-purchase examinations, and miscellaneous charges; and further labeled the document “MANDARINO/PRIVITERA Partnership (See Exhibit A for Partnership email and accounting). MANDARINO also secured insurance for the Patnership in the name of MANDARINO and PRIVITERA as equal owners in September 2011. (See Exhibit B). The horses have been registered with the USEF under both AMBER HILL FARM/MANDARINO and PRIVITERA, however MANDARINO did not properly register these horses pursuant to USEF rules as being owned by a general partnership. AMBER HILL FARM, LLC was never an intended party to any such partnership with PRIVITERA.
17. In furtherance of the partnership, MANDARINO sent another accounting on November 30 and multiple invoices in December which both evidenced the same title and breakdown of monies invested to date. Both parties are listed as 50/50 owners.
18. PRIVITERA, immediately upon receiving invoices for the partnership, questioned the escalating costs for the horses and the arbitrary decision making by MANDARINO to incur excessive fees. PRIVITERA never agreed to the horses being shown or the arbitrary use of providers.
19. PRIVITERA advised MANDARINO on or about December 15, 2011 of her desire to dissolve the partnership and to work towards a sale of the assets, the three equines known as Cyrus, Fresh Prince and L’Esperado. MANDARINO has been pricing said equines for sale at Cyrus for $250,000; Fresh Prince at $150,000 and L’Esperado at $200,000. All of the prices far exceeding any ability for a quick sale with a reasonable profit for MANDARINO and PRIVITERA.
20. MANDARINO refused to consider a dissolution and further claimed to own more than 50% of the interest in each of the three equines which is contrary to the actions of
both parties since the commencement of the partnership and the documentation provided by MANDARINO. Thereafter, it was learned that MANDARINO never paid 50% ofthe initial partnership monies, but rather paid $55,000 to PRIVITERA’s $85,000, of the initial partnership investment. (See Exhibit B 1 and B2 attached).
21. PRIVITERA’s concern was that MANDARINO was breaching her fiduciary duty and making decisions that were detrimental to the partnership and PRIVITERA personally. Those being training decisions and medicating horses at horse shows which PRIVITERA believes is in violation of the USEF rules. The USEF being the association that
regulates horse-showing. To that end, PRIVITERA demanded that MANDARINO not show the horses and not incur additional costs until such time the partnership could be dissolved. MANDARINO refuses to stop showing the horses.
22. The selection of the horses by Hirsch proved to be an excellent selection as the horses have a value here in the United States that far exceed what their value was in Germany. In Germany they do not have hunter classes nor equitation classes like they do in the United States.
23. As a result of the selection by Hirsch for the MANDARINO/PRIVITERA Partnership, the Cyrus horse has an estimated market value of $150,000; L’Esperado of $75,000 and Fresh Prince of $60,000.
24. MANDARINO takes the position that she made the value of these horses increase by way of her training over the last ten (10) weeks such that she claims her interest
in said equines is more than 50%, despite never paying the additional $30,000 of the initial investment monies to even purchase the equines and padding monthly charges to cover her 50% portion of the expenses.
25. MANDARINO does not acknowledge that PRIVITERA paid 50% for said training and care for those equines.
26. Based on these facts, the Partnership cannot survive and must be dissolved.
27. In addition to the Partnership, MANDARINO through fraudulent misrepresentation advised PRIVITERA that MANDARINO could assist her in selling other horses and ponies owned by PRIVITERA.
28. MANDARINO advised PRIVITERA that she could take the equines known as Surprise, Fade to Black and Lanzarote to New Jersey and sell said horses.
29. MANDARINO advised PRIVITERA in August 2011 that the pony Surprise was improperly measured and MANDARINO would have the pony immediately remeasured and sold as its value would increase in doing so.
30. MANDARINO failed to do as she agreed from August to the present and instead has incurred charges on the pony that far exceeded the pony’s value to the detriment of PRIVITERA. Moreover, MANDARINO, without consent nor approval, took the pony to horse shows in Atlanta, Georgia and then on to Florida where she stationed the pony at her
Florida farm. MANDARINO placed PRIVITERA in a detrimental position of having to pay costs she did not agree to and pay to ship the horse back to New York. MANDARINO
refused to allow Surprise to be removed from the Florida farm until these exorbitant and unagreed to charges were paid. Under duress PRIVITERA paid the invoice with notice they would be disputed later.
31. MANDARINO without consent or approval, took the equine known as Fade to Black, out of the State of New Jersey thereby incurring travel and show costs and brought
the horse to Atlanta, Georgia and then on to Florida where she stationed the equine at her Florida farm thereby leaving PRIVITERA in a detrimental position of having to pay costs she did not agree to and pay to ship the horse back to New York. MANDARINO refused to allow Fade to Black to be removed from the Florida farm until these exorbitant and unagreed to charges were paid. Under duress PRIVITERA paid the invoice with notice they would be disputed later.
32. MANDARINO advised PRIVITERA that she would take the equine known as Lanzarote on the cuff to be sold so long as PRIVITERA allowed a junior rider, Walther, to ride the equine until such time it was sold. PRIVITERA agreed to allow Lanzarote to travel with MANDARINO to Atlanta, Georgia so long as PRIVITERA would receive no bills for said horse. PRIVITERA never agreed to allow the horse to travel to Florida and be stationed there at MANDARINO’s Florida farm until April2012 or until sold.
33. MANDARINO allowed other riders to ride Lanzarote without the permission and consent of PRIVITERA and in doing so, MANDARINO incurred charges for said horse which were in turn billed to PRIVITERA. MANDARINO refused to allow Lanzarote to be removed from the Florida farm until these exorbitant and unagreed to charges were paid. Under duress PRIVITERA paid the invoice with notice they would be disputed later.
34. At all times material hereto, MANDARINO held herself out as a professional trainer in the hunter/jumper field and as an agent/broker for equine horse sales. MANDARINO in that capacity would know that administering medications to said horses at USEF regulated horse shows without vet approval or administration is a violation of USEF rules and can subject owners, such as PRIVITERA to sanction both financially and by reputation. MANDARINO invoiced PRIVITERA for such medications on the equines named Surprise, Fade to Black, Lanzarote, L’Esperado, Cyrus and Fresh Prince.
35. As a result of the actions of MANDARINO and AMBER HILL, LLC, PRIVITERA has suffered extensive damages and has had to engage the undersigned to bring suit against the Defendants.
COUNT I – FRAUD AGAINST MANDARINO
36. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
37. At all times material hereto, Defendant, MANDARINO held herself out as a professional equestrian in the business of buying and selling quality show horses for competitive equine competitions.
38. Defendant, MANDARINO, submitted false information under the auspices that she was a reputable sales company/investment person.
39. Defendant, MANDARINO, never advised Plaintiff, PRIVITERA, that the purchase of these equines (Cyrus, L’Esperado, Fresh Prince, Emporion) would afford MANDARINO discounts on two additional horses from the same German broker. The two horses are listed on the website of AMBER HILL FARM, LLC against the permission and consent of the German broker. Moreover, MANDARINO failed to deliver Emporion as purchased by the alleged partnership.
40. Defendant, MANDARINO, never advised PRIVITERA that she would be the managing partner and that PRIVITERA would have no decision making ability in the Mandarino/Privitera Partnership regarding the well-being of the equines, show and rider decisions, and sale prices.
41. Defendant, MANDARINO failed to provide the pre-purchase examination results to PRIVITERA from the purchase of the four equines and continues to this day to prohibit PRIVITERA from seeing the Midatlanic Vet Records for said equines citing that she is the account holder and will not permit the release of said documents. This despite PRIVITERA being, at a minimum, a 50% owner in the partnership and ownership of said equines.
42. Defendant, MANDARINO, with knowledge ofthe untruth of the information, represented that the Partnership between herself and PRIVITERA was a 50/50 relationship as she now states she is the controlling interest of more than 50% of said equines despite the fact she failed to pay $30,000 towards the initial investment. Clearly PRIVITERA owns approximately 54% of the equines based on the initial investment of PRIVITERA’s $85,000 to MANDARINO’s $55,000.
43. Defendant, MANDARINO, with knowledge of the untruth of the information, represented to PRIVITERA that she was getting no additional benefit from the German agent for the purchases of these equines.
44. At no time did MANDARINO advise Plaintiff that she would lease these equines to other riders and not obtain the fair market value for such a lease and in turn, bill PRIVITERA for the leasee’ s expenses.
45. Defendant, MANDARINO, with knowledge of the untruth of the information, represented that she would have the equine known as Surprise re-measured upon receipt on
August 2011 and failed to do so thereby billing PRIVITERA for unnecessary charges.
46. Defendant, MANDARINO, with knowledge of the untruth of the information, represented that PRIVITERA would have no charges incurred on the equine known as Lanzarote if PRIVITERA allowed the junior rider to use the horse free of charge.
47. Defendant, MANDARINO, with knowledge of the untruth of the information, represented that she would keep Fade to Black in New Jersey but instead took the horse to Georgia and Florida against the wishes of PRIVITERA.
48. Plaintiff to her detriment relied upon the representations that MANDARINO made that she would market the equine known as Surprise and have same sold within sixty days. Plaintiff also relied to her detriment upon the representations that MANDARINO would have Lanzarote leased or purchased before December 1, 2011.
49. Defendant MANDARINO knew that she could not sell the PRIVITERA equines known as Surprise, Fade to Black and Lanzarote, as such, she purposefully misrepresented her abilities to PRIVITERA for financial gain.
50. Defendant, MANDARINO committed a fraud upon PRIVITERA in the partnership of Cyrus, L’Esperado, Fresh Prince and Emporion, and in the agenting of Surprise, Fade to Black and Lanzarote. This fraud induced Plaintiff to purchase said horses to her detriment and allow MANDARINO to market Surprise, Fade to Black and Lanzarote, and as a result, Plaintiff suffered damages in the purchase of these Partnership equines and sale horses, and the expenses ancillary to same, as well as damages for the care, boarding, farrier services, feeding, training, and medical needs of said horses. Additional damages are being calculated.
WHEREFORE, Plaintiff, PRIVITERA, demands judgment for damages against Defendant, MANDERINO, in an amount in excess of ($15,000.00) Fifteen Thousand Dollars, exclusive of interest and costs which she prays for in addition thereto.
COUNT II – CONVERSION AGAINST MANDARINO
51. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
52. The Defendant, MANDARINO, claims to own more than 50% of said horses because of her “sweat equity” thereby converting interest in each horse for her own personal
use. MANDARINO also charged for Emporion but failed to deliver said equine nor reimburse PRIVITERA the funds for said purchase and delivery.
WHEREFORE, Plaintiff, PRIVITERA, demands judgment for damages against Defendant, MANDARINO, in an amount in excess of ($15,000.00) Fifteen Thousand Dollars, exclusive of interest and costs which she prays for in addition thereto.
COUNT III – BREACH OF FIDUCIARY DUTY AGAINST MANDARINO
53. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
54. The Defendant, MANDARINO, advised Plaintiff she would invest with PRIVITERA as a 50/50 partner of four equines known as Cyrus, Fresh Prince, L’Esperado and Emporion and would thereafter work in conjunction with PRIVITERA to sell said horses at a reasonable rate within ninety (90) days of their arrival to the United States. That
PRIVITERA and MANDARINO would each own the horses 50/50 with responsibility for reasonable costs associated with the horses at a 50/50 rate.
55. The Defendant, MANDARINO, had duties of loyalty, good faith and fair dealing toward Plaintiff.
56. The Defendant, MANDARINO, could not profit from the transaction without disclosure of the profit to the Plaintiff.
57. The Defendant, MANDARINO, had a duty to act m the Plaintiff’s best interest, not her own.
58. The Defendant, MANDARINO, breached her fiduciary duty when she secreted profits on the purchase of said horses to be used on two future purchases for MANDARINO only and to the exclusion of PRIVITERA, in addition to, failing to deliver the equine Emporion purchased, and failing to submit 50% of the initial purchase money as her portion fell short by $30,000.
59. The Defendant, MANDARINO, breached her fiduciary duty when she claimed to have secured a pre-purchase examination on said horses to ensure soundness and failed present the results of said examinations to PRIVITERA for review before purchase. To this day fails to provide documentation to PRIVITERA as requested citing she refuses to
release said documents and films.
60. The Defendant, MANDARINO, breached her fiduciary duty by not discussing prior to the investment with PRIVITERA the costs associated with maintaining said horses with AMBER HILL FARM, LLC or expectations and obligations of each partner.
61. The Defendant, MANDARINO, breached her fiduciary duty by taking the horses to Florida for the show season without consent or approval by PRIVITERA.
62. The Defendant, MANDARINO, breached her fiduciary duty by entering the three horses in competitions not in the best interest of the horses for resale; by allowing riders to lease said horses without charging proper rates for the use of said horses; and by charging PRIVITERA rates in excess of what costs should be as an investor of said equines.
63. The Defendant, MANDARINO, breached her fiduciary duty by entering three equines in various competitions after administering medications illegal to the USEF and further billing those charges to PRIVITERA when knowing the medications were illegally administered. In the alternative, if MANDARINO did not administer said medications then
she fraudulently billed for show medications never administered.
64. The Defendant, MANDARINO, breached her fiduciary duty by entering L’Esperado in November 2011 into pre-green hunter 3’3″ level classes. By doing so, she eliminated his ability to show in the 2012 show year that commenced December 1, 2011 to show in the 3 foot pre-green division and the 3 ‘3″ pre-green hunter division. In doing so, she
devalued the horse as a prospect.
65. The Defendant, MANDARINO, breached her fiduciary duty by agreeing to take on the equine known as Surprise in August 2011 for the sole purpose to have said equine re-measured according to USEF standards within thirty (30) days of receipt of the pony. MANDARINO failed to do so and in her failure, continued to bill PRIVITERA without consent or approval for services rendered to Surprise through December 2011 and did so for her own financial gain. MANDARINO refused to release Surprise to PRIVITERA until PRIVITERA paid an invoice presented by MANDARINO for services never agreed upon which PRIVITERA paid under duress.
66. The Defendant, MANDARINO, breached her fiduciary duty when she took the horse known as Fade to Black out of the State of New Jersey against the wishes of the owner PRIVITERA and further invoiced PRIVITERA for services rendered to said equine against the wishes of PRIVITERA. MANDARINO then brought the horse to Florida where she held said horse from PRIVITERA until PRIVITERA through duress, paid the invoice presented by MANDARINO for services never agreed upon.
67. The Defendant, MANDARINO, breached her fiduciary duty when she took the horse known as Lanzarote, out of the State of New Jersey to other States and finally to Florida, by claiming that there would be no charges assessed by PRIVITERA in moving and showing the horse, only to find that MANDARINO invoiced PRIVITERA for all matters relating to Lanzarote for which PRIVITERA did not give consent nor approval for such charges. MANDARINO refused to release Lanzarote to PRIVITERA until PRIVITERA paid an invoice presented by MANDARINO for services never agreed upon which PRIVITERA paid under duress.
68. As a result of the breaches by Defendant, MANDARINO, Plaintiff, PRIVITERA, has suffered (1) the loss of the ability to use three equines as PRIVITERA deems; (2) overcharges for costs to maintain the three investment equines and Surprise, Lanzarote and Fade to Black (3) monthly boarding costs for the three investment equines and Surprise, Lanzarote and Fade to Black; ( 4) and additional charges incurred and losses suffered which are continuing to be tallied inclusive of boarding and care in Florida, and shipping equines back to New York such as Surprise, Lanzarote and Fade to Black. WHEREFORE, Plaintiff, PRIVITERA, seeks a judgment in excess of $15,000.00 against Defendant, MANDARINO and any additional monies determined to have been lost due to the breaches stated as evidence is revealed and any additional costs deemed by this Court. Plaintiff reserves the right to later plead punitive damages.
COUNT IV – DETRIMENTAL RELIANCE AGAINST MANDARINO
69. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
70. The Plaintiff relied to her detriment on the information advanced by Defendant, MANDARINO, about the quality of the four equines known as Cyrus, Fresh Prince, L’Esperado and Emporion.
71. The Plaintiff relied to her detriment on the representations of the Defendant, MANDARINO, that she was a well known professional in the equine community with the experience, training and education, to select quality German equines for competition.
72. The Plaintiff relied to her detriment on the representations of the Defendant, MANDARINO, that she selected four equines, who were allegedly a proven show horses in Germany with training and experience commensurate with their price such that each, when landing in the United States, would be sold within 90 days for threefold their purchase price.
73. The Plaintiff relied to her detriment on the representations of the Defendant, MANDARINO, that she had pre-purchase examinations conducted by a licensed veterinarian
in Germany to ensure the soundness and health of said animal but MANDARINO has failed to provide such documentation to Plaintiff, despite Plaintiff paying for said examinations.
74. The Plaintiff relied to her detriment on the representations of the Defendant, that she was purchasing said horses from a German contact that were healthy, sound and
showing in jumper competitions and that were valued much higher than the German asking prices.
75. The Defendant, MANDARINO, never advised the German seller, unbeknownst to Plaintiff, that Plaintiff was the actual buyer of 50% of the interest in each horse.
76. The Defendant, MANDARINO, breached her duty by agreeing to take on the equine known as Surprise in August 2011 for the sole purpose to have said equine remeasured
according to USEF standards within thirty (30) days of receipt of the pony. MANDARINO failed to do so and in her failure, continued to bill PRIVITERA without consent or approval for services rendered to Surprise through December 2011 and did so for her own financial gain. PRIVITERA detrimentally relied upon MANDARINO to secure the re-measure within thirty days of receipt of the pony, but instead, MANDARINO took the pony to multiple states and horse shows all in an effort to bill PRIVITERA needlessly.
77. As a result of the acts by Defendant, MANDARINO, Plaintiff, PRIVITERA, has suffered (1) the loss of the ability to use the equines as deemed necessary; (2) expenses
for the equines, past and future, (3) monthly boarding costs for the equines; ( 4) and additional charges incurred and losses suffered which are continuing to be tallied.
WHEREFORE, Plaintiff, PRIVITERA, seeks a judgment in excess of ($15,000.00) Fifteen Thousand Dollars against Defendant, MANDARINO, and any additional monies
determined to have been lost due to the breaches stated as evidence is revealed and any additional costs deemed by this Court. Plaintiff reserves the right to later plead punitive damages.
COUNT V – INTENTIONAL MISREPRESENTATION AGAINST MANDARINO
78. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
79. The Defendant, MANDARINO, misrepresented her education, training, and experience in the equine community to induce Plaintiff, PRIVITERA, to spend in excess of ($100,000.00) to purchase investment horses.
80. The Defendant, MANDARINO, misrepresented her abilities to select horses in an effort to induce Plaintiff to purchase four equines as a 50% investor.
81. The Defendant, MANDARINO, misrepresented that she would sell said equines Cyrus, L’Esperado, Fresh Prince and Emporion, within 90 days of arriving in the United States.
82. The Defendant, MANDARINO, misrepresented the costs and expenses associated with such a purchase of these equines, in order to induce the Plaintiff to purchase the four horses and maintain them with AMBER HILL FARM, LLC.
83. The Plaintiff relied on MANDARINO to provide accurate information regarding the four equines. Defendant MANDARINO, knowing the information to be false, advised Plaintiff that she knew how to price all four equines, Cyrus, Fresh Prince, L’Esperado and Emporion, for a fast sale and return on PRIVITERA’s investment within 90 days.
84. The Plaintiff relied on MANDARINO to provide accurate information about the show plans for said equines. MANDARINO failed to advise that Emporion was not delivered and failed to reimburse PRIVITERA for that portion of the investment. Despite knowing that the information was false, MANDARINO advised Plaintiff that the equines were top of their class in various competitions, however, failing to advise Plaintiff that the competitions were small in nature.
85. The Defendant, MANDARINO, without consent or backup, has charged exorbitant fees and costs for the care and upkeep of these three equines, when the equines
have not incurred said charges. Defendant, MANDARINO, also without consent or approval, transferred part interest of the three equines in the name of MANDARINO’S
corporation, AMBER HILL FARM, LLC.
86. The Defendant, MANDARINO, breached her duty by agreeing to take on the equine known as Surprise in August 2011 for the sole purpose to have said equine remeasured
according to USEF standards within thirty (30) days of receipt of the pony. MANDARINO failed to do so and in her failure, continued to bill PRIVITERA without consent or approval for services rendered to Surprise through December 2011 and did so for her own financial gain. MANDARINO repeatedly advised PRIVITERA that she was skilled in the pony market and that only she could get the pony re-measured in a way to make the pony have a significantly higher value. Despite many inquiries by PRIVITERA as to when the remeasure would take place, MANDARINO intentionally misrepresented her efforts causing PRIVITERA to suffer additional damages.
87. The Defendant, MANDARINO’s, multiple knowing breaches of her fiduciary duty lead Plaintiff to purchase of these three equines and suffer (1) the loss of the ability to use the three equines as she deemed fit (2) care and expenses for the three equines, past and future, which Mandarino is arbitrarily charging PRIVITERA without proper support and backup (3) monthly boarding costs for the three equines; ( 4) and additional charges incurred and losses suffered which are continuing to be tallied.
WHEREFORE, Plaintiff, PRIVITERA, seeks a judgment in excess of ($15,000.00) Fifteen Thousand Dollars against Defendant, MANDARINO, and any additional monies determined to have been lost due to the breaches stated as evidence is revealed and any additional costs deemed by this Court. Plaintiff reserves the right to later plead punitive damages.
COUNT VI – FRAUD IN THE INDUCEMENT AGAINST MANDARINO
88. The Plaintiff adopts by reference each and every allegation contained m Paragraphs 1-3 5 as fully set forth herein, and further allege:
89. The Defendant, MANDARINO, despite knowing the information to be false, made a knowingly false statement when she advised Plaintiff that all four equines (Cyrus, Emporion, Fresh Prince and L’Esperado) would be sold in the United States within 90 days of their arrival.
90. The Defendant, MANDARINO, fraudulently induced the Plaintiffto purchase these four equines as a 50% investor, despite knowing before making such statements that the information was false.
91. The Defendant, MANDARINO, knowing the information to be false, fraudulently advised the German sellers that MANDARINO was purchasing the four equines, as opposed to advising them the real purchaser of 50% interest was PRIVITERA of New York. In fact, MANDARINO failed to advise that PRIVITERA was purchasing a greater interest in said horses than MANDARINO.
92. The Defendant, MANDARINO, failed to secure Bills of Sales on the four equines from Germany that reflected the 50/50 purchase by MANDARINO and PRIVITERA with the purchase prices listed. She failed to do so knowing PRIVITERA would determine MANDARINO did not invest 50% of the initial investment nor did four horses get purchased as Emporion never was delivered.
93. The Defendant, MANDARINO, knew that Plaintiff would rely on her knowingly false statements as to the purchase price of the horses and the quality of the horses inclusive of being a proven show horses in Germany such that she detrimentally relied on those statements and entered into an agreement with Defendant, MANDARINO, based on those statements. MANDARINO advised Plaintiff that the horses would be titled 50/50 in the name of MANDARINO/PRIVITERA, however, MANDARINO, without consent nor
approval, titled the horses also in the name of AMBER HILL FARM, LLC and also has been showing and advertising the horses without reference to PRIVITERA as the 50% owner. MANDARINO failed to properly register the horses with the USEF under the general partnership registration. The false statements made by Defendant, MANDARINO, were material facts and her intentional conduct caused Plaintiff to enter into these purchases and this partnership with MANDARINO.
94. The Defendant, MANDARINO’s, multiple misrepresentations lead Plaintiff to purchase what she believed to be a 50% interest in four equines totaling $85,000 and suffer (1) the loss of the ability to use the equines as she deemed necessary; (2) expenses for the three equines, past and future, (3) monthly boarding costs for the three horses; ( 4) and additional charges incurred and losses suffered which are continuing to be tallied.
WHEREFORE, Plaintiff, PRIVITERA, seeks a judgment in excess of ($15,000.00) Fifteen Thousand Dollars against Defendant, MANDARINO, and any additional monies determined to have been lost due to the breaches stated as evidence is revealed and any additional costs deemed by this Court. Plaintiff reserves the right to later plead punitive damages.
COUNT VII – UNJUST ENRICHMENT – AGAINST MANDARINO
95. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
96. The Defendant, MANDARINO, secured for herself a discount for two future purchases from the German agent without disclosing same to Plaintiff. As Agent for herself and PRIVITERA, MANDARINO used these purchases to her future benefit. In addition, MANDARINO took a $30,000 credit towards the initial investment that she never actually put forth thus her initial investment was 46%, not 50%.
97. The Defendant, MANDARINO, refuses to allow PRIVITERA the use of said equines, but instead, MANDARINO, is using the equines to further the riding career of MANDARINO’s daughter, instead of leasing the horses to have some of the costs deferred. A weekend lease fee per equine would be as high as $1,000 per show and costs would be borne by the Lessee. Given MANDARINO’s use of the equine Cyrus for her daughter, there is no incentive for a sale or lease.
98. The Defendant, MANDARINO, had knowledge of these benefits.
99. The Defendant, MANDARINO, accepted or retained the benefit conferred.
100. The circumstances are such that it would be unequitable for the Defendant, MANDARINO, to retain these benefits.
101. The Defendant, MANDARINO has taken and continues to take from the Plaintiff unjustly and provided nothing in return for said monies.
102. The Defendant was unjustly enriched in excess of $30,000 to date and the number continues to rise.
103. The Defendant, MANDARINO, breached her duty by agreeing to take on the equine known as Surprise in August 2011 for the sole purpose to have said equine remeasured according to USEF standards within thirty (30) days of receipt of the pony. MANDARINO failed to do so and in her failure, continued to bill PRIVITERA without consent or approval for services rendered to Surprise through December 2011 and did so for her own financial gain. MANDARINO repeatedly advised PRIVITERA that she was skilled in the pony market and that only she could get the pony re-measured in a way to make the pony have a significantly higher value. Despite many inquiries by PRIVITERA as to when the remeasure would take place, MANDARINO intentionally misrepresented her efforts causing PRIVITERA to suffer additional damages where MANDARINO was unjustly enriched in the process.
104. The Defendant, MANDARINO’s, multiple misrepresentations lead Plaintiff to purchase what she believed to be a 50% interest in these four equines and suffer (1) the loss
of the ability to use these equines as deemed necessary; (2) expenses for the equines past and future, (3) boarding costs for the three equines; (4) and additional charges incurred and losses suffered which are continuing to be tallied.
WHEREFORE, Plaintiff, PRIVITERA, seeks a judgment in excess of ($15,000.00) Fifteen Thousand Dollars against Defendant, MANDARINO, and any additional monies determined to have been lost due to the breaches stated as evidence is revealed and any additional costs deemed by this Court. Plaintiff reserves the right to later plead punitive damages.
COUNT VIII – ACCOUNTING AGAINST MANDARINO AND AMBER HILL FARM, LLC
105. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
106. The Defendants, MANDARINO and AMBER HILL FARM, LLC without consent or approval of Plaintiff, incurred significant charges as it relates to the purchase and upkeep of the three equines Cyrus, Fresh Prince and L’Esperado.
107. The Defendants, MANDARINO and AMBER HILL FARM, LLC without consent or approval of Plaintiff, incurred significant charges as it relates to the care and upkeep of the three additional equines known as Surprise, Fade to Black, and Lanzarote.
108. The Defendant, MANDARINO, without consent nor approval, apparently also titled the equines Cyrus, Fresh Prince and L’Esperado in the name of AMBER HILL FARM, LLC to the benefit of MANDARINO and to the detriment of PRIVITERA.
109. The Plaintiff has a right and Defendants MANDARINO and AMBER HILL FARM, LLC have an obligation to provide an accounting on how Plaintiffs money was dispersed and proof of to whom the monies were paid, including each and every ancillary provider.
110. The Plaintiff seeks an immediate accounting identifying the actual purchase price of said horses and by whom, and an accounting of all charges incurred and paid for said
horses to ensure no additional monies have been secreted.
WHEREFORE, the Plaintiff seeks an immediate accounting by the Defendants, MANDARINO and AMBER HILL FARM, LLC and any other damages determined by this Court.
COUNT IX – VICARIOUS LIABILITY AGAINST AMBER HILL FARM, LLC
111. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35, 51, 53-68, 69-77, 78-87, 88-94, 95-104 as fully set forth herein, and further allege:
112. MANDARINO was an employee, agent, officer, and/or director, of AMBER HILL FARM, LLC and was acting within the scope of her responsibilities and duties with AMBER HILL FARM, LLC at all times material to the purchase of three equines for the MANDARINO/PRIVITERA Partnership, as such, AMBER HILL FARM, LLC in vicariously liable for the acts or omissions of MANDARINO. MANDARINO did business under the name AMBER HILL FARM, LLC.
113. As a result of the acts or omissions of MANDARINO, Defendant, AMBER HILL FARM, LLC is responsible to, Plaintiff, PRIVITERA, who has suffered (1) the loss of the ability to use the three equines as deemed necessary; (2) expenses for the three equines, past and future, (3) monthly boarding costs for the three equines; ( 4) and additional charges incurred and losses suffered which are continuing to be tallied.
WHEREFORE, Plaintiff, PRIVITERA, seeks a judgment in excess of ($15,000.00) Fifteen Thousand Dollars against Defendant, AMBER HILL FARM, LLC, and any additional monies determined to have been lost due to the breaches stated as evidence is revealed and any additional costs deemed by this Court. Plaintiff reserves the right to later
plead punitive damages.
COUNT X -TEMPORARY INJUNCTION
114. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
115. The Plaintiff seeks a temporary injunction prohibiting the Defendant from advertising for sale or showing the horses known as Cyrus, Fresh Prince and L’Esperado as
Plaintiff believes in the likihood of success on the merits that Plaintiff owns 54% of the equines known as Cyrus, Fresh Price and L’Esperado such that Plaintiff can no longer incur the unnecessary charges being invoiced by MANDARINO and AMBER HILL FARM, LLC for services rendered or incurred by said equines needlessly.
116. The Defendant MANDARINO claims to the public that she is the majority interest holder in said equines and that she may make all decisions for said equines inclusive
of sale price and costs incurred per equine. Moreover, Mandarino is administering medications illegal for horse shows and against Florida law despite being told to cease and
desist. The Plaintiff PRIVITERA has no other adequate remedy at law available to prohibit MANDARINO from wasting the assets of the MANDARINO/PRIVITERA Partnership nor
incurring additional charges far beyond what would be usual and customary for the farm up keep of said equines.
117. The Defendant MANDARINO despite repeated requests, refuses to allow Plaintiff to market and show horses for sale without MANDARINO’s presence as many
professionals do not wish MANDARINO’s presence at their trials. MANDARINO in each instance has been assured the horses would be shown for sale and returned to her farm in Ocala within a day or so of the trial (depending on re-rides) and MANDARINO refuses access to the equines.
118. The Plaintiff alleges that without the temporary injunction irreparable harm will be done absent the entry of the injunction.
119. Temporary injunctive relief will serve the public interest as MANDARINO continues to enter horses into the show competitions, to advise third parties that she alone owns the equines owned 50%-54% by PRIVITERA, that PRIVITERA is refused access to see or market these horses, and that MANDARINO will sell said equines and retain the monies, thereby exposing subsequent buyers to litigation for failing to disclose proper ownership.
WHEREFORE, Plaintiff seeks an entry of an order for a temporary injunction to ensure no depletion of assets and the incurring of additional liabilities.
COUNT XI – DECLARATORYJUDGMENT
120. The Plaintiff adopts by reference each and every allegation contained in Paragraphs 1-35 as fully set forth herein, and further allege:
121. This is an action for ownership in personal property located in Marion County, Ocala, Florida and falls under Florida Statute, Chapter 86.
122. The description of the property is three equines known as Cyrus, L’Esperado, and Fresh Prince. (See USEF record attached as Composite C).
123. To the best of Plaintiffs knowledge the value of the property exceeds $400,000.00.
124. Plaintiff submits attached Exhibits A, A 1, B, B 1, B2 and C, as further proof of ownership.
125. Plaintiff is entitled to the property as she IS the majority owner in said property as evidenced.
126. There is a bonafide, actual, present and practical need for the declaration.
127. That the declaration will deal with present ascertained or ascertainable set of facts or present controversy as to a state of facts.
128. There is some person or persons, believed to be MANDARINO and AMBER HILL FARM, LLC, who have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law. In this case, both.
129. That the antagonistic and adverse interests are all before this court.
130. That some immunity, power, privilege or right is dependent upon the facts or the law applicable to the facts.
131. In the instant case, MANDARINO is depriving PRIVITERA of the use of her ownership of these equines.
WHEREFORE, Plaintiff demands a judgment from this court demonstrating the ownership of this personal property pursuant to the dealings between the parties.
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by a jury of all issues so triable as a matter of law.
Defendants’ Motion to Change Venue
Plaintiff’s Opposition of Motion to Change of Venue
Affidavit of Louise Privitera in Opposition of Motion for Transfer
Plaintiff’s Motion to Compel the Deposition of Mandarino
Plaintiff’s Opposition of Motion for Extension of Discovery
Supplemental Affidavit of Elizabeth Mandarino in Support of Motion to Transfer
Notice of Filing Sworn Affidavit of Elizabeth Mandarino
Affidavit of Elizabeth Mandarino Extension of Time, Protection of Documents
Motion to Withdraw as Defendants’ Counsel
Motion for Violation of Court Order
Joint Notice of Substitution of Counsel
Motion to Compel Inspection of Horses and Records
Notice of Appearance of Co-Council
Plaintiff’s Second Amended Complaint
