hp amended complaint

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA

CASE NO.: 8:13-CV-01900-T-30EAJ

HEWLETT-PACKARD FINANCIAL SERVICES COMPANY, a Delaware corporation,

Plaintiff,

vs.

BREVARD COUNTY CLERK OF THE CIRCUIT COURT, a political subdivision of the State of Florida, BLUEGEM LLC, a Florida limited liability company, ROSE HARR and CARUSO, SWERBILOW & CAMEROTA, P.A., a Florida professional association,

Defendants.

------------------------~!

AMENDED COMPLAINT

Plaintiff Hewlett-Packard Financial Services Company, through its undersigned

attorneys, hereby sues Defendants Brevard County Clerk of the Circuit Court, BlueGEM LLC,

Rose Harr and Caruso, Swerbilow & Carnerota, P.A, and states:

THE PARTIES, JURISDICTION AND VENUE

1. Plaintiff Hewlett-Packard Financial Services Company ("HPFS"), is a Delaware

corporation, with its principal place of business located in Berkley Heights, New Jersey. HPFS is

authorized to conduct business in the State of Florida.

2. Defendant, Brevard County Clerk of the Circuit Court ("Clerk"), is a fully

constituted political subdivision of the State of Florida, whose fundamental purpose is to operate

the state court in Brevard County, Florida.

EXHIBIT

l \

Case 8:13-cv-01900-JSM-EAJ Document 13-1 Filed 11/22/13 of 22 PageID 62

3. Defendant Blue GEM LLC ("BlueGEM"), is a limited liability company,

organized under the law of the State of Florida, with its principal business office located in

Brevard County, Florida.

4. Defendant Rose Harr ("Harr") is a Florida citizen residing in Brevard County,

Florida. At all times material hereto, Harr was the CEO of BlueGEM.

5. Defendant Caruso, Swerbilow & Camerota, P.A. ("CSC"), is a Florida

professional association, with its principal place of business located in Merritt Island, Florida.

Joe Teague Caruso, Esq. ("Caruso"), is the President and Senior Partner of CSC. Caruso is

licensed to practice law in the State of Florida.

6. This Court has diversity jurisdiction pursuant to 28 U.S.C. §1332, as the parties

are of diverse citizenship and the matter in controversy is for claims in excess of $75,000,

exclusive of attorney's fees, interest and costs.

7. Venue is appropriate in this judicial district because the Defendants reside within

the Middle District of Florida and the acts, occurrences and omissions that gave rise to the claims

asserted herein, principally occurred in or emanated from this district.

BACKGROUND FACTS

8. HPFS is a financial services company that, among other things, extends credit to

parties, such as the Clerk, for the purchase of computer equipment, software and related services,

which are usually acquired through or provided by vendors, such as Blue Gem, who in this case,

worked directly with its customer, the Clerk, to locate and sell select products to and services

needed by the Clerk for the operation of its office.

9. In early October 2012, HPFS was contacted by BlueGEM, who was seeking

financing for the Clerk, who needed to acquire certain computer software and equipment and

2


digital imaging services so that the Clerk could digitize old paper court files. At that time, the

Clerk was Mitch Needelman ("Needelman").

10. Through most of October 2012, HPFS, BlueGEM and the Clerk negotiated the

terms of the financing transaction proposed by BlueGEM and the Clerk.

11. By October 24, 2012, the parties agreed upon the business terms of a proposed

financing by HPFS, and on that date, HPFS loaned $6,100,000.00 to the Clerk, most of which

ftmds were dispersed at the Clerk's direction to BlueGEM. As consideration for the loan, the

Clerk executed a Promissory Note in the principal sum of $6,100,000.00 in favor of HPFS (the

"Note"). A true and correct copy of the Note is attached as Exhibit A. The acquisition by the

Clerk of the imaging equipment, use of Blue Gem's services, and execution by the Clerk of the

Note, is sometimes referred to below as the "Transaction."

COUNT I ACTION ON NOTE AGAINST THE CLERK

12. HPFS realleges the allegations of paragraphs I through 11 above, as if fully set

forth herein.

13. For value received, on or about October 23, 2012, the Clerk executed and

delivered the $6,100,000 Note to HPFS under which the Clerk was obligated to make 60

consecutive equal monthly installments of$110,776.00, commencing with execution of the Note.

14. HPFS owns and holds the Note.

15. The Clerk has defaulted under the Note by, without limitation, failing to make its

monthly installment payments from November 2012 and thereafter, as and when due under the

Note. Said defaults remain uncured.

16. Based upon the Clerk's failure to timely make its monthly installment payments,

HPFS has accelerated the total amount due under the Note.

3


17. The Clerk has been provided notice of default through correspondence sent by

HPFS on March 20, 2013 and by the filing of this lawsuit.

18. All conditions precedent to the Clerk's obligation to pay HPFS the indebtedness

due under the Note have occurred.

19. The Clerk owes HPFS approximately $6,000,000 for the outstanding principal

balance on the Note, together with accrued interest and late charges of 18% as provided for in

paragraph 3 of the Note.

20. HPFS has retained the undersigned attorneys to collect the indebtedness due on

the Note, and has agreed to pay them a reasonable fee.

21. Under the terms of the Note at paragraph 9, the Clerk has agreed to pay and is

liable for all attorney's fees and court costs incurred by HPFS in bringing this action.

WHEREFORE, Plaintiff Hewlett-Packard Financial Services Company prays for

judgment in its favor and against Defendant, Brevmd County Clerk of the Circuit Court, for all

sums due and owing under the Note, including but not limited to principal, interest, late charges,

reasonable attorneys' fees, costs, and for all such other relief as this Court deems just and proper.

GENERAL ALLEGATIONS AS TO ALL OTHER CLAIMS BELOW

22. HPFS pleads the counts below in the alternative to Count I, pursuant to

Fed.R.Civ.P. 8(d)(2), although HPFS contends that Count I remains its principal and a valid

cause of action, as asserted against the Clerk. However, the claims pled below are asserted given

that (a) this Court's order requires this filing against additional parties against whom HPFS may

have claims by November 22, 2013, and (b) alleged facts have come to light respecting the

Transaction indicating the possibility of illegal conduct by Needlemm1 and Harry that induced

the Transaction. If true, these facts give rise to valid alternative causes of action in favor of

4


BPFS and against BLUEGEM, Barr and CSC. BPFS submits tbat even if all of the claims

asserted below are valid and sustainable, such claims do not defeat the Clerk's liability under

Count I above, so that all or some of the defendants in this lawsuit have liability to BPFS.

23. Scott Ellis ("Ellis") defeated Needleman in an election for the Clerk's office held

in early November, very shortly after the Clerk's execution of the Note in favor ofBPFS.

24. Almost immediately following the election, the Clerk defaulted on his obligations

under the Note.

25. In this action, Ellis as the Clerk has pled affirmative defenses generally asserting

tbat: (a) the Note is an unenforceable obligation w1der the Florida Constitution as to the Clerk,

and (b) the intervening alleged criminal acts of Needleman and Barr bar enforcement of the

Note.

26. Further, Ellis as the Clerk filed an action in Brevard County Circuit Court against

BlueGEM (Clerk v. BlueGem LLC, Case No: 13-CA-033457) (the "Brevard Action") seeking a

declaration that the Clerk's agreement with BlueGEM (for the imaging services of court files)

was contrary to law and void ab initio, while seeking an award of damages for BlueGEM' s

alleged breach of contract and to rescind the agreement with BlueGEM. BPFS is not a party to

the Brevard Action nor has wrong doing been asserted against BPFS.

27. Specifically, in the Brevard Action, Ellis as the Clerk alleges, among other things,

that (a) the selection of BlueGEM for the digital imaging contract was improper, (b) the bid

procedures and selection criteria used by former Clerk Needelman to select BlueGEM were

improper and were conducted in a manner intended to violate Florida law, (c) Needelman made

improper payments to BlueGEM before any contract was actually awarded to BlueGEM, (d)

additional fi.mding was improperly obtained from BPFS to cover the Clerk's payment obligations

5


owed to BlueGEM, and (e) BlueGEM was not only incapable of completing the work required

by the agreement with the Clerk, but never had any intention of actually doing the work.

28. Ellis as the Clerk also alleges that Needelman directed payments from the Clerk's

office to BlueGEM before any contract was awarded to BlueGEM in order to cause BlueGEM to

make improper payments from those public funds into Needelman's re-election account.

Thereafter, Needelman and BlueGEM allegedly acted together to cause public monies to be paid

to BlueGEM and later redirected to Needelman's re-election accounts for what are alleged to be

sham invoices for services allegedly not rendered by BlueGEM to the Clerk. Numerous other

allegations respecting wrongdoing, bribery and kickbacks are alleged by Ellis as Clerk against

Needleman as Clerk and Harr.

29. Subsequent to the filing of both the Brevard Action and this lawsuit, Harr and

Needelman have been arrested and indicted on charges of bribery, bid tampering, and official

misconduct related to the digital imaging contract with BlueGEM and payments made by the

Clerk to BlueGEM.

COUNT II CLAIM FOR PROFESSIONAL MALPRACTICE AGAINST CSC

30. HPFS realleges the allegations of paragraphs 1 through 19 above as if fully stated

herein.

31. At all times material hereto, CSC, through Caruso, participated in discussions,

meetings and negotiations with I-IPFS on behalf of the Clerk.

32. As a condition precedent to the closing of the Transaction, HPFS required the

Clerk to provide directly to and for the sole benefit of HPFS, a legal opinion letter verifying

among other things, that the Clerk had the power and authority to enter into the proposed

Transaction and that the relevant closing documents constituted a legal, valid and binding

6


obligation of the Clerk. CSC was retained by the Clerk, for, among other things, to issue that

opinion letter to HPFS. On October 24, 2012, CSC provided such an opinion letter directly to

HPFS. On October 29, 2012, HPFS then provided an amended opinion letter to HPFS (the

"Opinion Letters"). The Opinion Letters are attached respectively as Exhibits B and C.

33. Both the Clerk and CSC knew that HPFS required the Opinion Letter as a

condition precedent to extending credit to the Clerk, and both the Clerk and CSC knew that

HPFS would rely upon the conclusions stated by CSC in the Opinion Letter, when determining

whether or not to extend credit to the Clerk.

34. The Opinion Letters facially make clear they were prepared for the direct benefit

of HPFS and therefore, CSC owed HPFS a duty of care in the preparation of the Opinion Letters.

35. CSC's Opinion Letter of October 29, 2012 issued directly to and for the express

benefit of HPFS states:

The entering into and performance of the Lease [Note] is not contrary to and does not violate any judgment, order, law or regulation, or constitute a default by Lessee [Maker, Clerk] under any other agreement or instrwnent.

With respect to the Lease [Note], Lessee [Maker, Clerk] has fully complied with all applicable law governing open meetings, pubic bidding and appropriations required in connection with the Lease [Note] and the acquisition of the Equipment.

36. Should the Court detennine that tl1e execution of the Note by the Clerk does not

comply with Florida law and the Note is unenforceable, then CSC has breached its duty of due

care to HPFS.

3 7. CSC, through Caruso, failed to exercise its duty to use the skill and care of a

reasonably competent attorney in issuing the legal opinions included in the Opinion Letters.

38. CSC knew and expected that HPFS would rely upon CSC's legal opinions to

determine whether to extend credit to the Clerk, and indeed, HPFS did rely on the Opinion

7


Letters in funding the lmderlying transaction. Accordingly, CSC's issuance of the Opinion

letters proximately caused HPFS's damages. Put differently, but for the breach of duty by CSC,

HPFS would not have suffered its losses under the Note.

WHEREFORE, Plaintiff Hewlett Packard Financial Services Company prays for

judgment in its favor and against Defendant Caruso Swerbilow & Camerota, P.A., for an award

of actual damages, consequential damages, special damages, costs, and for all such other relief as

this Court deems just and proper.

COUNT III CLAIM FOR NEGLIGENT MISREPRESENTATION AGAINST CSC

39. HPFS realleges the allegations of paragraphs I through 19 above as if fully stated

herein.


meetings and negotiations with HPFS on behalf of the Clerk.



among other things, that the Clerk had the power m1d authority to enter into the proposed

Transaction and that the relevm1t closing documents constituted a legal, valid and binding

obligation of the Clerk. CSC was retained by the Clerk, for, among other things, to issue the

Opinion Letter to HPFS. On October 24, 2012, CSC provided such an Opinion Letter directly to

HPFS. On October 29, 2012, HPFS then provided an amended Opinion Letter to HPFS.




whether or not to extend credit to the Clerk.

8


43. The Opinion Letters facially make clear they were prepared for the direct benefit

of HPFS and therefore, CSC owed HPFS a duty of care in the preparation ofthe Opinion Letters.


benefit of HPFS contained the following express representations of material fact:

The entering into and performance of the Lease [Note] is not contrary to and does not violate any judgment, order, law or regulation, or constitute a default by Lessee [Maker, Clerk] under any other agreement or instrument.

With respect to the Lease [Note], Lessee [Maker, Clerk] has fully complied with all applicable law governing open meetings, pubic bidding and appropriations required in connection with the Lease [Note] and the acquisition of the Equipment.

45. Should the Court determine that the execution of the Note by the Clerk does not

comply with Florida law and the Note is unenforceable, then the express representations of

material fact stated in the preceding paragraph are false.

46. CSC, through Caruso, prepared and transmitted the foregoing Opinion Letters

containing the false information negligently, by failing to use the skill and care of a reasonably

competent attorney in issuing the legal opinions included in the Opinion Letter.

47. CSC knew and expected that HPFS would rely upon CSC's legal opinions to


Letters in funding the underlying transaction. Accordingly, CSC's issuance of the Opinion

letters proximately caused HPFS's damages which HPFS otherwise would not have suffered.


judgment in its favor and against Defendant Caruso Swerbilow & Carnerota, P .A., for an award



9


COUNT IV CLAIM FOR BREACH OF FIDUCIARY DUTY AGAINST CSC

48. HPFS realleges the allegations of paragraphs 1 through 19 above as if fully stated

herein.


meetings and negotiations with HPFS on behalf of the Clerk.



among other things, that the Clerk had the power and authority to enter into the Transaction and

that the relevant closing documents constituted a legal, valid and binding obligation of the Clerk.

CSC was retained by the Clerk, for, among other things, to issue the Opinion Letter to HPFS.

On October 24, 2012, CSC provided such an Opinion Letter directly to HPFS. On October 29,

2012, HPFS then provided an amended Opinion Letter to HPFS.




whether to extend credit to the Clerk.


benefit of HPFS states:

The entering into and performance of the Lease [Note] is not contrary to and does not violate any judgment, order, law or regulation, or constitute a default by Lessee [Mal(er, Clerk]tmder any other agreement or instrument.

With respect to the Lease [Note], Lessee [Malmr, Clerk] has fully complied with all applicable law governing open meetings, pubic bidding and appropriations required in connection with the Lease [Note] and the acquisition of the Equipment.

10


53. CSC !mew and expected that HPFS would rely upon CSC's legal opinions to


Letters.

54. Based on HPFS's trust in CSC, a fiduciary duty ran from CSC to HPFS.

55. CSC, through Caruso, failed to exercise its duty to use the skill and care of a

reasonably competent attorney in issuing the legal opinions included in the Opinion Letter, and

therefore, esc breached that fiduciary duty.

56. But for the breach of fiduciary duty by CSC, HPFS would not have suffered its

losses under the Note.

57. HPFS was directly and proximately damaged by CSC's breach of fiduciary duty.


judgment in its favor and against Defendant Caruso Swerbilow & Camerota, P.A., for an award



COUNTY CLAIM FOR FRAUDULENT INDUCEMENT AGAINST BLUEGEM AND HARR

58. HPFS realleges the allegations of paragraphs 1-11 and 22-29 above as if fully

stated herein.

59. At all times material hereto, Harr was the CEO of BlueGEM as well as its

controlling owner. J-Iarr acted in an agency capacity for BlueGem with actual authority on all

matters related to the Transaction, which included execution of the Note.

60. On information and belief BlueGEM, acting through its agent Harr,

misrepresented the following material facts by failing to disclose to HPFS that BlueGEM: (a)

obtained its contract with the Clerk by using illegal means to influence the Clerk including

11


bribery, (b) was not capable of completing the digital imaging tasks required by the contract with

the Clerk, (c) intended to use the funds obtained from HPFS to make illicit payments to the

Clerk, and to pay other unrelated debts owed by BlueGEM to other creditors.

61. BlueGEM and Harr knew that the foregoing nondisclosures were material to

HPFS and that had they disclosed such omitted information to HPFS prior to its funding the loan

represented by the Note, that HPFS would not have proceeded with the Transaction.

62. BlueGEM and Harr intentionally and with scienter concealed and purposely failed

to disclose the foregoing material nondisclosures to induce HPFS to extend credit to the Clerk.

63. HPFS relied upon the representations made by BlueGEM and Harr when making

its decision to extend credit to the Clerk, and HPFS would not have extended credit to the Clerk

had BlueGEM fully disclosed all material facts tmderlying the Transaction.

64. BlueGEM's and Harr's misrepresentations directly and proximately damaged

HPFS.

65. BlueGem and Harr's conduct was at all times willful and wanton and warrants the

imposition of punitive damages.


judgment in its favor and against Defendants BlueGEM LLC and Rose Marr, for an award of

actual and punitive damages, costs, and for all such other relief as this Court deems just and

12


proper.

Respectfully submitted,

BERGER SINGERMAN LLP Attorneys for Plaintiff 350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 Direct: (954) 712-5138 Fax: (954) 523-2872

By: Is/ Charles H Lichtman Charles H. Lichtman, Esq. Florida Bar No. 501050 clichtman(W,bergersingerman.com Ashley Dillman Bruce Florida Bar No. 055718 [email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the_ day of ____ , 2013, I electronically filed the

foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing

document is being served this day on all counsel of record or pro se parties identified on the

attached service list in the manner specified, either via transmission of Notices of Electronic

Filing generated by CM/ECF or in some other authorized manner for those counsel or parties

who are not authorized to receive electronically filed documents.

13

By: Is/ Charles H Lichtman Charles H. Lichtman, Esq.


SERVICE LIST

Alec D. Russell, Esq. Adam M. Bird, Esq. Gray Robinson, P.A. 1795 W. NASA Blvd. Melbourne, FL 32901 Tel: (321) 727-8100 Fax: (321) 984-4122 [email protected] [email protected] [email protected]

5317369-2

14


Amount: S6,100;000.00

PROMISSORY NOTE No.47923675010000!

D"ted: October2J, 2012

FOR VALUE; RECEIVED, the undersigned ("Maker"), does hereby unconditionally promise to pay to the order of Hewlett-Packard Fin-ancial Services Company, or its successors or assigns: (collec·tively, "I'U)•ce"J, at 200 Connell Drive, Suite 5000, Berkeley Height.<, NJ 07922, or at such other place as Payee or the holder hercofn1ay desigmatc, the principal sum of$6, I 00,000.00, (Six mill ion one hundred thousand and 00/1 00) or, i rless, the aggregate princip•l amount ofallthc advances made by Hcwlctt•Packard Financial Services Company to or for the benefit of Maker together with intere.<a thereon at the rate of 3.55% per annum, accruing daily and compounding mor1thly from t'he date her-eof on the unpaid principal bahrnce, and <.~ontimling whhoutdem-and unttl this Promissory Note e-Note'') is paid in full. Interest shall b~ calculated on the basis of a 360·day year for the actual number of days elapsed.

1. Payments All poym(lnls ofprlncipu1 nnd ~:ntcrc.st_shnll be rnadc in lawful money of tho United States of

America, and in immediately nvai'lablc funds. Princlpalt together with interest thereon, shall be paid in 60 JZ(111SC(:utivc: equal monthly paymcLllt.s ("J nstallmcn1(s}") of$11 0,77G.OO commencing on the day 011 which funds arc first udvunccd by Pay<e pursuant to this Note t.o or filr the bene fit of Maker. Maker shall pay Payee the n::rnaining momhly lnstallmem(s) on or before 1he correspond!l'lg day of each month ahereafter (whether or not Maker recciws notice lhcreof) until all rnstallments and other monies owed by Maker 11creunder are paid in fu!l. The tina! Installment shall be equal to the then remaining unpaid principul balance, plus all accrued and unpaid inter~s1 and all other s~rms. due llt::tClinder.

2. Ncn~approur11ltion. Maket rC"asonably believes that funds can be obtained sunkicnt fo ntake all Installme-nt payments and

tHhcl" anwunts du(: during the term of this Note. Maker agree.,-; thnt Maker's chief executive, chief financial or adminis~r~tive omccr wm provide for funding for such rnslalhnent payments in Maker,s annual bt1dget request submitlcd to Maker's governing body. Maker and Payee ugree that Maker's obligation to make Lease paym\!nt:; under this Note will be Maker's current expense and wiiJ not be jj·uerpreted to be a debt illl violati0/1 of applicable luw or constitutional limitations or requirements. Nothing contained in this Note will be inte1·preted as a pledge oLV1aker's general ta~ rcvenuc.:s, funds or moneys. rr (i) sufficient funds are not Up-propria ted artd budgct~d hy Maker'." govt~rning hody in any fi seal period lOr all ler-~se payments and all other amo11nts due under this Note lOr such fiscal period, and (ii)- Maker has exhausted all funds legally avaitab!e: fo1· such paymcnls1 then Maker will give- Payee- wriU.en notice and this Note- wilt terminate as of th~ last day oftfle t1sc:al period for which funds arc available to pay amorJnts due under this Not.c. Such lcrmination is without any expcn~e or pcnuhy.

3- tqte Ch.arge Paymer\t shal I l;lc made in accordance wi1h Section 215.422, Florida Statutes, and for purposes of

thi:i provisiOII uuly. Lt:S!:H:!C shall be deemed to be a sr~ue Agency under rflat Section.

4. .:\J.!l!!il'.ll!l!!ll.9fr avn!~ Payments rec~~~v~~d by Puyce on this Note shall be applied first to the payment of any late charge

tlla.t i:c: d~te and payable .. second to the payment of interest that is due and payable, and then to the principal.

s. !\Iaker's \V~u·ranti:t"s To IPavec. Maker expressly represents and warrants to Payoc:e, and Payee relies on, each of the followin,g

statements: {a) Maker has read and undt:rstoodl this Note; (b) the interest portion of the lns:talimem p::~yments shall be excluded from gross income for federal income t;3X purposes, and Maker will do nothing to cause, nor fi\il to take action which results in, the interest portion of the [nstnllment payment.~ bcin_g includible it1 gross income for fed.eral income tax purposes; (c) Maker is a political subdivision or agency or department of a Stattc; (d) the entering into and pern)rmanc•! or 1hi.r.; Note .lire a11thoril".ed under the laws and constitution of Maker's state and, to the best or Maker's knowledg~:, do not violate or contradict any judgmenl, law, order, or regulation, or cause· ~ny d¢fault under any agreement to which M;lke-r is~ party; (c) Maker h<iS complic·d wid1 all bidding requirements and. where neces.sary, have properly presented this Note for approva~ and adopdon a~.: a vaHd oU!igo1tio-n <Jn Muker•s parti (e) Maker hils sufficient appropriated funds -or other moneys available ro pay aU amounts due under this Note for Maker's current fiscal period;

EXHIBIT

I A


(f) the use of the EquipnH:tlr is es.sen1iaJ-for {\.faker's proper, cf.ficient and economic operation: Maker will be thr. onlyent.ity h:.H)Wt1, usc- or operate the Equipntent during the term of this Note and Maker will use the Equipmenl only for Ma.kcr 1s governmental r>ttrposcs. Upon Payee's request,. Maker agrees to provide Pnyl'c- \virh nn opinion ofeounsel <IS to c(:·IUses (b) through (f) above, a certificate ofappropnatwn.s as to clau:;.c (c) above, an essential usc !cuer as to clause Gf) above, nnd itny other doc-uments that Payee requests, mduding in!bnn;;tion st!ltemenrs to be til(·cl with the lmernal Revenue Service, with all such documCnts being in a form satisfactory to Payee,

6. J;~Y!.t!!t.of L?efault The following event!> shall each. be an Evenll'fOefaule (a) Maker faits to pay when due any

amounts payable hereun-der or under any other obligation of Maker to Payee within lO days of its due date: (b) M~1kr:r f;1i Is to Clbserve or perform ~1ny- other term, covennnt ('H' condition of thfs Note and such -breach is not r:.ured within I 0 days: after written notice thereof by Payee tO· MA.k.er; (c) any statemem, repre~entntion m· WU1Ta.r1ty l'riade by M.:tker ir~ this Note or otherwise to Payee proves to be incorrect when made in any material respect: (d) Maker m::~kes ~tn assignment for the benefit ofcrcditt.m;:, whether voluntary or invol~mLary: (c) a r>rnceeding under :my b<mkrup!cy, reor.Q::Jnizati!ll1, :arrangement of debts, insolvency or n:cci\•en;hip law is filed by or ngainst Mo'ker or Mokart1lkii;'IS nny action to ilUihorize any of the foregoing; (0 Maker become.<> insotVJ!nt or fails g:tmerally to )}ay itR dehts as they become du.e or Maker seeks to dYcctu.nh::: .:1 bulk sale or Makc1·'.'! itweJ1tllr)' or a$.~Ct5; (g} f\..•lakcr voluntaril)' or invohmlaril)' dis.solvc.1 M i:~ dis:soived, terminal es or 1.~ tcn11int~ll~d: or (h) Maker f~il.s lo perform or observe any rep-resentation, w:.untnty, -t.·ovcnam. condition or agreement to be p~rfurmcd or ub~t.':rveU by M<~kt.!r in ~my uth~r lill$fl:tl!ltlll

with Payee a.nd such breach is: nnf ctm:~d within 10 days alter notice thereof by Pa1·ee to Maker.

, I fan Event ofDcfauh occurs, Payee may, in its sole discretion, declare the cmire unpaid prh\dplll lMI<tllCe oftlns NotJ;:, all .accrued und unpaid interest <~od all other amounts payabte hereunder to be immediutely due and l'nyahle. Payee may purstJe any remed)' availab!~ at law or in equity upon the occwT!!tlce of an Event of Default.

7. Notices ,. Maker waives dili)tence, pr<:>.sennncnt, demand, demand for lll\YI1H!nl, notice (except as set forth

above), protest and all other noti.::es or de munds in conneclion With the del[ very, acceptance. performance, default :;lnd cnfi.1rcemem ofthis Note.

S. M.n.Jg:rts Brnrtseutatjon!l and Warranties To imlucc Paye.c 10 make the loa..n evidenced by this Nore, Maker hereby re-presents and warr(tnts

to P<Jy~~e that, as of the d.ate hereof and 11:> of the d:He Maker requests P~ycc 10 m~ke a loan ptm;:uant ·1o this Notc:(a} unlc.o;s Maker isc an individual, Maker is duly organized validly existing and in goodl standing under the l~ws of the jurisdiction of its or~anization; (b) this Note has been duly nuthoriz(ld, cxl.'cuted and dd h•crcd und consritutes: a valid and legally bl nding obligation of Maker, eriforceable against ~\.'raker in accordance with its tcrn13 subject to bankruptcy, insolvency and other laws s·cner;alfy aftCcting creditor l'ights; (c) the execution and delive-ry oflhis Note und jJt:rformance hereunder by Maker will not viol ale any provlsi~)llOfapJJiit:ablt; l<:~w or cr~-.a~ a th:f<11.dt under <~ny maf~rial agrt:~ln~n~ binUiu.!!: ~tt Maker: and (J) there" nrc no llctiolls 01' pn>ceedin,gs pendi~1g bcf,)re any court c;>r giWcn,menml authority. bureau or agency wirh respect to or thrcatc:ncd ngainst or a ft'ectin,g Make; w!1ich. if determined advers.el y, would have a m:a tcl·ia1 advcrs.c effect on !he business, (he asse1s or the t1nu.ncial condition of Maker.

9. Costs·. of Enro1·cemer1t I r n1t EvetH or Dcfau! l occurs, Maker agn~es tc- p~ay all P:.tyec~s cosrs of enl\xcemc:nt or co llcclion

o(Lhis Note: indulting attorneys' fees und court costs, whether or not suit is. brought agnin.·n Maker.

10. As,iilgnmerlt Maker rnn y not a::>sign or other\\' ise dispose l)f<rny of its dghts or o-blig:nions hereLtndcr. Payee

may. without f..I:::~J..:t!r's con:;~:nL. u~sign, pl~.:dgc. tnmsl~r, mongog~ or otherwise co-nvey any of its imcrest~ lllldCI" rhis: :-.h.>tc

II. Pl'e!Hl\'Tl!~Ut

:pon nm le~s th:m 30 df1ys priol' wrirtc1~ notic(' to. Pl'lyC'C, tv1akcr shall h~v~\ the l'iz_bt· ro pr;;o-p;1y this Note m fLIII and not in pa11. wl1fch shall be li1c rotal unp~id remaining mmHhly payments plus any and all h111~ Ch;I \"gC~ <LC!~nJCd.


12. Maximum lnt.cJ·csl In no event shall interest charged hereund.er or mh-cr amounts due or any late charge hereunder~

how<:ver su<"h interest, late charge or other an1o\1nts may be characterized or comput-ed1 exceed 1he highest rate ofintcres! or late c·harge· permissible under any applicable law. To th~C extent int.ercst hereunder or any late charge e.cecds the highest rate of interest or late charge allowed by law, J>ayco shall promptly refund such excess interest or such excess late .char go to Maker -ahd the interest rate or late charge shall be deemed to be reduced, automatically and immediately (and if rcquir<:d by luw. rctroacti vdy) lo the maximum rate of Interest or htte charg<: allowed by law.

13. Notlu1 Arw notices required by applicable law to be givcnm Mako;:r shall be sufficient if mailed to Maker

-a1 the address set fonh below or at such other address as Maker may provide. by written notice 10 Payee. Any stlch notice n1rd!ed lo such address shall be et'f<!clivc when di~pns:it(HI in lhe Uniterl S·taiC,!; mail, duly addressed and with tirsr class postage prepaid.

Mahr's AdJres£ 282$ Judge Fr111l Jnmieso·n Wuy Viera, FL 32940

14. M jscellaneous Th!~ N<l[C has been delivered 10 omd shall be deemed to h'liVe been made in Florid·.a, 'o:lnd sh'dJ/ bt:

conSl!·w.:d, performed and enforced i11 accordance with tht! imemnllaws (as opposed to conflicts of law provisions) and d~cisions of the state of Florida. Whenever possible, each prov·ision of this None sha/.1 be inrcrprcted in such manner as to be effective and valid under applicable law, but if any provision of this Note sl1ull bC" prohibited by or invillid tinder app!icabte Jaw such pro-visiotl shat I be inenective to the extent of such prohibition ~)r invalidfty, \Vithout invalidating the remainder of such provision or the remaining provisions of this Note. Any rcfi!rence in this Note to Payee-or Mak~r shall be deemed to include, as applictl.bte, rcfc:"rence tet their respective successors and pt!rmittcd assigns. The provisions of this Note shaH be binding Ltpon and shall inure to the b-enefit of said successors a1td permitted assigns. Maker's successors and as.siMns shall include. without limitation, a receiver. tTustcc ordc:btor in possession of or for Maker. Tlli.'i: Note may be amended, modified or supplemented only by written agreement signed on behalf of rvlakcr and Payee.

M'hn I!REI'AI!Il COIJN1'V CI.FRL< OP1'HIF. CIHCUIT COUR'IT

Aeceptod By: HEWLiETT-PACIKARD FINANCIAL SE:RVICES CO~IPANY

::=:-. -,'tr ~:~TE1?Jbvo ·--··-nmECTOWOFOFERATlONS

Title: THE AMERICAS nat<:_, ___ /0 /?- 7 hut l.,


hp financial ;ervice.>

IN<:UMBENCY CERTIFICATE (State and Local Government .Promissory Note)

I, the undersigned being the duly ltppointed and acting Secretary or Clerk or Brevard County Clerk of the Circuit Cour1 ("Maker"), DO HE RiellY CERTIFY that (i) I have custody of the records of Maker; and (ii) based on an examination of such records of Maker as of the date set fmth below, the following persons iri the respective _capacities indicated apposite rhdr names have been nuthorizcd tl') exccutcf with full authority to bind the N1'aker to the State and Local Government Pt·omissory Note betwet.".~n Make:r and: Hu\vlctt~Packnrd Financial Se-rvices Company as Payee ("Note"), and all other agn.:cm_ents, documents and instnnn~.nts executed nnd delivered mHl lo be executed and d.diveced ill connection therewith (collectively referred to"' tho "Doc.urnents"); and (iii) the signature set forth opposite such individual's name and title/oflicc 1s 1hc true anll authentic signature of 1lmt indivldltal; and, (iv) each such indivkhml has (and h~d on the date each such individ\lal affixed his or her signature to lhc Documents) the authority to enter into the i)ncumcnts on behalf of the Maker.

---·------··----

----·----------______ , __ , _____ _

On behalf of Maker, I hereby ccr!ify Lhc due and cfTectlve ratitlcation, approva1 1 w1d confinn;ttion of all such acts and lhings that any of the abovc~n:ferenccd. persons has done or may do in c.~onnection with the matt·ers outlined above prior nr subs"quent to the datf~ ol this Ccrtitica(C. I do further certify that the foregoing authority shall remain in 1\dl tbrcc and eff\:ct, ,1m! Hl:wlctt-Pad.;.ard Fi1mncial Services Company shalt be entitled to rely upon same, lmtil written notice of th\! n·lodilicatiort, rescission or revocation of same. in whole or in part, has been delivered to Hcwlclt~Puckmd Financial Services Company, but Ito such modll1cation. resdssion or revocation shall, In nnx event, be cffeclive with respect to any documents executed or acllons tuken in ;'cliance upon the foregoing authority prior to the delivery to HcwlcU·Packard Financial Services Company of suid wdtten notice of said modification, rescission or revocati.on. The execution and delivery of the Doc.umcnts for andl on behalf of Maker is not prohibited or in any manner restricted by any law,. ordinance or re:gu!ati(m.

+''' . IN(IVITNESS WHEREOF, I have duly executed this Incumbency C"rtiticate this _,2 q_· ___ day oC_. ____ _ ()c\:12\:tJ_,. -·-· 2012.

(P:..E1:\$E NCTE T'!-ifi:. Gi:NEF.~\L PUHPOSE (Jf fHI:S JJOCUMJ:Nl !:') lQ AU-f HOHIZE !NOIVIDUALS TO SIGN THE C0CVAt7NTS CONSI;;.QUENfLY, THE PERSON Pi~CV!!:liNG fHI:: AUTHORJZ:A T10N CANNOT H!M Of~ HERSEu: BE ONE: OF THE S1GN<:J::tS 01= THE QOCUM~N1"$, .. U..i. (;iJ..NNOT 1\LITHORI.f:E: H!M OR f.IEJ::tSEUT


-~~o/

w~g~d~.9.d JOE TE:AGUE CARUSO JJOARD CERTII'IJ!JJ C!VTL TR/Al,Lil WYEH

Sl1NJOR PARTNSR

HOWARD M. SWERBILOW BOARD CER1'1fi'JllJ) CRIMiNAL 1'JUAL. UWYEH

L/CENSF.lJ TN nORfDA WASifJN<ITON D.C.:

ARiZONA MtiRJ'I.AND

JOI!N J. CAMEROTA lJCENSlill IN JILORJIM

MASSACfiUSETTS.

KRYSTAL T. WALD UCEN.'-UW IN f'LORIJ)A

October 24, 2012

OPINION OF LEGAl, COUNSEL

To: Hewlett-Packard Financial Services Company 200 Connell Drive, Suite 5000 Berkeley Heights, NJ 07922

RE: Promissory Note No. 479236750100001 (Lease)

Ladies and Gentlemen:

TELn'/'HONe: 321-453-3880 FACSIMILE: 321-453-0112

190 FORTENBERRY ROAD SUJTE.W7

MERRITT ISLAND, FLORIDA 32952

INTERNET E-MAIL:

JOI>c@)JTCllMSJ'A.COM HOWARD.\@JTCHMSPA.COM

JOHNC@JTCl!MSPA. COM

KRYS1:4Lil~)JTCHMSPA.COM

I am Legal Counsel for Brevard County Clerk of the Circuit Court (Lessee), and I am familiar with the above-referenced Lease by and between Hewlett-Packard Financial Services Company, as Lessor, and Lessee. Capitalized terms which are not defined herein shall have the meanings given these terms in the Lease.

Based on my examination of the Lease and such other documents, records and papers as I deemed to be relevant and necessary as the basis for my opinion set forth below, it is my opinion that:

I. Lessee is a constitutional officer created hy the Florida Constitution.

2. The Lessee has the power and authority to enter into each of the Fundamental Agreements.

3. Each of the Fundamental Agreements constitutes a legal, valid, and binding obligation of Lessee enforceable in accordance with hits terms and does not violate or create a default under any instrument or agreement binding on Lessee.

EXHIBIT

I b


4. I am not aware of any pending or threatened actions or proceedings before any court or administrative agency that could have a material adverse effect on Lessee or any Fundamental Agreement.

5. The entering into and performance of the Lease is not contrary to and does not violate any judgment, order, law, or regulation or constitute a default by Lessee under any other agreement or instrument.

6. Each Fundamental Agreement is effective against all creditors of Lessee under applicable law, including fraudulent conveyance and bulk transfer laws.

7. The Equipment is personal property and will not become a fixture.

8. With respect to the Lease, Lessee has fully complied with all applicable law governing open meetings, public bidding and appropriations required in connection with the Lease and the acquisition of the Equipment.

JTC/ktw cc: Mitch Needleman

,.,..~..,---.,.,

( Very tru

'•

·•· 'JoeT;,1!, e Caruso President and Senior Pattner


JOE TEAGUE CARUSO BOARD G'EI1.1U?IED CIVIL tRTAL LAWYER Sb:NfORPAIITNEI~

HOWARDM SWERBILOW BOIIRD Ci!.'RT!FIED CRIMINAL '/11MJ, LAIVYER L!ClWSll'D IN FT.OIUDA

WASJIINU1'0N D,C. ARIZONA MARYlAND

JOHN J. CAMER01~ JJCENSIW IN FWIUDA

MA8.':iACJJUSli"l1'S.

October 29, 2012

OPINION OF LEGAL COUNSEL

To: Hewlett-Packard Financial Services Company 200 Connell Drive, Suite 5000 Berkeley Heights, NJ 07922

Re: Promissory Note No. 479236750100001 (the "Lease")

Ladies and Gentlemen:

TEl-EPHONE: 321-453-3880 FACSIMILE: 321-453-0112

190 FORTENBERRY ROAD SUITE 107

MERRITT iSLAND, FLORIDA 32952

iNTERNET E-MAIL: [email protected]

[email protected] [email protected]

I am Legal Counsel for Brevard County Clerk of the Circuit Court ("Lessee"), and I am familiar with the above-referenced Lease by and between Hewlett-Packard Financial Services Company, as Lessor, and Lessee. Capitalized terms which are not defined herein shall have the meanings given these terms in the Lease.

Based on my examination of the Lease and such other documents, records and papers as 1 deemed to be relevant and necessary as the basis for my opinion set forth below, it is my opinion that:

I. Lessee is a fully constituted political subdivision or agency or department of the State of Florida.

2. The Lessee has the power and authority to enter into each of the Fundamental Agreements.

3. Each of the Fundamental Agreements constitutes a legal, valid and binding obligation of Lessee enforceable in accordance with its terms and does not violate or create a default under any instrument or agreement binding on ~essee.

4. To the best of my knowledge after reasonable inquiry there are no pending or threatened actions or proceedings before any cout1 or administrative agency that could have a material adverse effect on Lessee or any Fundamental Agreement.

EXHIBIT

I L


5, The entering into and performance of the Lease is not contrary to and does not violate any judgment, order, law or regulation or constitute a default by Lessee under any other agreement or instrument.

6. Each Fundamental Agreement is effective against all creditors of Lessee under applicable law, including fraudulent conveyance and bulk transfer laws.

7. The Equipment is personal property and will not become a fixture.

8. With respect to the Lease, Lessee has fully complied with all applicable Jaw governing open meetings, public bidding and appropriations required in connection with the Lease and the acquisition of the Equipment.

JTC/ktw cc: Mitch Needleman


hp amended complaint

Documents

state of florida

florida citizen

circuit court clerk

state court

defendant caruso

defendant rose harr

bluegem llc

related services