breland vs. culbreath

IN THE CIRCUIT COURT FOR MADISON COUNTY, ALABAMA

BRELAND COMPANIES, L.L.C.; OLD

TOWN INVESTMENTS, L.L.C.; 8075

MADISON BLVD., L.L.C.; and 8121

MADISON BOULEVARD, L.L.C.,

Plaintiffs,

v.

MICHAEL W. CULBREATH; JAMES B.

PACKARD; ATTITUDE, L.L.C.;

MUSHASHI, LLC; and FICTITIOUS

DEFENDANTS 1-100,

Defendants.

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Civil Action No. __________________

COMPLAINT

Plaintiffs Breland Companies, L.L.C. (Breland Companies), Old Town Investments,

L.L.C. (Old Town), 8075 Madison Blvd., L.L.C. (8075) and 8121 Madison Boulevard,

L.L.C. (8121 and, together with Old Town and 8075, Breland Affiliates)1 file this complaint

against Defendants Michael W. Culbreath (Culbreath), James B. Packard (Packard),

Attitude, L.L.C. (Attitude), Mushashi, LLC (Mushashi) and Fictitious Defendants 1-100

(together with Culbreath, Packard, Attitude and Mushashi, Defendants) and, pursuant to an

investigation and upon knowledge, information and belief, allege as follows:

PARTIES

1. Breland Companies is a Delaware limited liability company, whose sole member

is Breland Enterprises DE LP. Breland Companies is qualified to do business in the state of

Alabama. Breland Companies, together with the rest of the Breland Family of Companies,

develops, builds and manages residential and commercial real estate projects throughout the

1 Breland Companies and its subsidiaries, affiliates and related entities (including Breland Affiliates) are

collectively referred to as the Breland Family of Companies.

ELECTRONICALLY FILED8/18/2014 4:23 PM

47-CV-2014-901714.00CIRCUIT COURT OF

MADISON COUNTY, ALABAMAJANE C. SMITH, CLERK

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Southeastern United States. Its projects include office, industrial, retail, multi-family, single

family, specialty and mixed-use developments.

2. Old Town is a Delaware limited liability company, whose sole member is Breland

Enterprises DE LP. Old Town is a Breland Affiliate that owns approximately 276 acres located

at the intersection of Interstate 565 and Zierdt Road. Old Town is qualified to do business in the

state of Alabama.

3. 8075 is a Delaware limited liability company, whose sole member is Breland

Enterprises DE LP. 8075 is a Breland Affiliate that owns certain real property and

improvements on Madison Boulevard. 8075 is qualified to do business in the state of Alabama.

4. 8121 is a Delaware limited liability company, whose sole member is Breland

Enterprises DE LP. 8121 is a Breland Affiliate that owns certain real property and

improvements on Madison Boulevard. 8121 is qualified to do business in the state of Alabama.

5. Culbreath is an individual residing in Madison County, Alabama. Culbreath may

be served with process at his residence at 81 Lake Forest Boulevard, Huntsville, Alabama 35824,

or any other manner authorized by law. From April 4, 2005 to July 27, 2012, Culbreath worked

for Breland Companies and on behalf of the Breland Family of Companies as an executive

officer.

6. Packard is an individual residing in Madison County, Alabama. Packard may be

served with process at his residence at 3060 High Mountain Road, Huntsville, Alabama 35811,

or any other manner authorized by law.

7. Attitude is an Alabama limited liability company, whose members -- Culbreath

and Packard -- are citizens of the state of Alabama. Attitude may be served with process by

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serving its registered agent, James B. Packard, at 3060 High Mountain Road, Huntsville,

Alabama 35811. Attitude develops and manages residential and/or commercial properties.

8. Mushashi is an Alabama limited liability company, whose members -- Culbreath

and Packard -- are citizens of the state of Alabama. Mushashi may be served with process by

serving its registered agent, James B. Packard, at 3060 High Mountain Road, Huntsville,

Alabama 35811. Mushashi develops and manages residential, multi-family and/or commercial

properties.

9. Fictitious Defendants 1-100, whether singular or plural, are those persons,

enterprises and/or entities (and their parents, subsidiaries, predecessors, successors, heirs,

partners, members, shareholders, employees, agents and other persons acting for, in concert with

or on their behalf) that: (1) breached any obligation or duty to, misappropriated or stole from, or

otherwise defrauded or deceived Breland Companies and/or Breland Affiliates; (2) participated,

benefitted from, and/or otherwise were directly or indirectly involved in the acts and/or

omissions alleged below; (3) conspired with or aided and abetted Defendants or their agents to

commit the underlying torts alleged below; or (4) had possession, custody or control of or

received confidential, proprietary information and/or trade secrets of the Breland Family of

Companies. The true names and legal identities of Fictitious Defendants 1-100 are unknown to

Breland Companies and Breland Affiliates at this time, but they will be added by amendment,

individually and jointly, when ascertained. Fictitious Defendants 1-100 are liable to the Breland

Companies and Breland Affiliates, as set forth in more detail below. Fictitious Defendants 1-100

must be joined as parties in this action because, without them, complete relief cannot be afforded

among those already parties. Alternatively, Fictitious Defendants 1-100 may be joined in this

action because the relief sought by Breland Companies and Breland Affiliates against

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Defendants is joint, several or alternative in respect of or arising out of the same transaction,

occurrence or series of transactions or occurrences and common questions of law or fact will

arise in this action.

10. Defendants, and each of them, acted individually or as the agent, servant,

employee, partner or co-venturer of one another or were otherwise engaged in a joint enterprise.

Alternatively, Defendants, and each of them, acted through their agents, servants, employees,

partners and/or co-venturers and are liable to Breland Companies and Breland Affiliates under

respondeat superior and/or agency theories, or are otherwise vicariously liable.

JURISDICTION AND VENUE

11. Breland Companies and Breland Affiliates seek, among other things,

compensatory, statutory and punitive damages in excess of $10,000, together with injunctive and

other equitable relief. This Court has jurisdiction over the subject matter of this action pursuant

to Ala. Code 12-11-30, -31 and -33 (1975).

12. Pursuant to Ala. Code 6-3-2 (1975) -- supplemented by Rule 82 of the Alabama

Rules of Civil Procedure -- and Ala. Code 6-3-7 (1975), venue is proper in this Court because:

(1) Attitude and Mushashi have a principal place of business in Madison County, Alabama; (2)

Culbreath and Packard reside in Madison County, Alabama; and (3) a substantial part of the acts

and/or omissions giving rise to this action occurred in Madison County, Alabama.

13. The Court has personal jurisdiction over Defendants because: (1) they resided and

transacted, and continue to reside and transact, business within the state of Alabama; (2) the

claims asserted in this action arose from or are connected with purposeful and tortious acts or

omissions committed by them, in whole or in part, in or directed toward a resident of the state of

Alabama; (3) they have committed tortious acts or omission, directly or indirectly, that caused

substantial harm in the state of Alabama; and (4) they have had continuous and systematic

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contacts with the state of Alabama by engaging in numerous activities that have had an effect in

this state. Accordingly, Defendants are amenable to suit in the state of Alabama.

FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS

14. In early 2005, Culbreath contacted Louis Breland (Breland) about a potential

employment opportunity with the Breland Family of Companies. During the early meetings

between Culbreath and Breland, Culbreath communicated with Breland about his background,

experience and qualifications. Culbreath made certain express and implied misrepresentations to

Breland about the proposed business relationship, including, but not limited to, that he would:

(1) be truthful, honest and fair with the Breland Family of Companies; (2) work on behalf of the

Breland Family of Companies (rather than its competitors); (3) perform all duties and obligations

owed by him to the Breland Family of Companies; and (4) maintain the confidentiality of

documents and information related to the business of the Breland Family of Companies,

including, but not limited to, its existing and prospective developments. Based on Culbreaths

representations during his initial meetings with Breland, Breland Companies hired Culbreath in

April, 2005 as its Chief Operations Officer (COO). As an executive officer of Breland

Companies (and an integral member of the Breland Family of Companies), Culbreath was in

charge of all operating activities associated with existing and prospective residential and

commercial projects (including the construction, management, investment in and/or development

of these projects). Each of these existing and future projects utilized a single purpose entity such

as the Breland Affiliates.

15. Culbreaths duties included identifying potential residential and commercial sites

for Breland Companies to develop through single purpose entities and further identifying

prospective tenants for these developments. Culbreaths duties also included selling lots on

behalf of the Breland Family of Companies.

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16. Culbreath worked for Breland Companies and on behalf of the Breland Family of

Companies between April, 2005 and July, 2012. During the course of this seven (7) year period,

Culbreath had access to their confidential, proprietary information and/or trade secrets,

including, but not limited to, the method and manner in which they identified, developed and

invested in residential and commercial real estate projects. Culbreath also had access to

confidential, proprietary information and/or trade secrets related to specific residential and

commercial projects the Breland Family of Companies was working to develop.

17. Without their knowledge, during the time Culbreath worked for Breland

Companies and on behalf of the Breland Family of Companies, he used their confidential,

proprietary information and/or trade secrets for the benefit of himself and the other Defendants.

18. Breland recently discovered that, during the term of his employment, Culbreath

intentionally and continuously committed blatant acts of economic espionage and self-dealing,

misappropriating numerous business opportunities for himself, Defendants and their

developments.

19. Defendants are, and were, willing participants in a conspiracy to misappropriate,

steal from and otherwise defraud the Breland Family of Companies. Using the confidential,

proprietary information and/or trade secrets Culbreath gained through his employment, he and

the other Defendants developed competing projects, lured away prospective tenants and

otherwise acted to the detriment of the Breland Family of Companies.

20. Although the breadth of their unlawful activities remains unknown, at least four

(4) specific projects were compromised by Culbreath and the other Defendants.

21. Beginning in 2006, Old Town began trying to develop a large-scale retail project

on the 276-acre site it owns at the intersection of Interstate 565 and Zierdt Road in the city of

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Madison, Alabama (Madison) (the Old Town Project). As the COO of Breland Companies,

Culbreath was intimately involved in every aspect of the Old Town Project.

22. Between 2006 and 2012, Breland and Culbreath worked together on the Old

Town Project, including, but not limited to, developing plans, seeking infrastructure funding and

identifying prospective tenants. Old Town (specifically Breland) identified Cabelas Inc.

(Cabelas) as a proposed anchor tenant.

23. In 2009, Brelands and Culbreaths efforts to develop the Old Town Project

culminated in a joint venture proposal to Madison and the city of Huntsville, Alabama

(Huntsville) whereby Huntsville could participate in the infrastructure funding (i.e., roads and

other improvements) in exchange for the right to share in the projects future sales tax revenues.

For a number of reasons, this was a novel proposal, especially considering the fact that the Old

Town Project was located entirely within Madison.

24. Old Town, Madison and Huntsville came to an agreement in principle, which

provided for a 50/50 split of the future sales tax revenues generated from the Old Town Project

between Madison and Huntsville (for a period of fifty (50) years) (the Joint Venture).

Breland recently learned that while Culbreath was supposed to be working on the Joint Venture

and the Old Town Project, he was secretly conspiring with the other Defendants to develop a

competing project called Parkside Town Centre directly across and down Interstate 565 from

the Old Town Project (the Parkside Project). Defendants developed the Parkside Project

during (and after) Culbreaths employment with the Breland Companies by using the

confidential, proprietary information and/or trade secrets of the Breland Family of Companies.

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25. In early 2009, Stan McDonald approached Culbreath in his capacity as the COO

of Breland Companies. Stan McDonald told Culbreath his family wanted to sell a portion of

their farm, commonly referred to as the old McDonald place, more specifically defined as:

Lot 1, according to the plat of Research Park Lake 5 Phase 3, a resubdivision of Lot 1 of a

resubdivision of Lot 2 of Research Park-Lake 5 Subdivision, as recorded in Plat Book 45, Page

34, and Lot 2 of Research Park Lake 5 Second Addition, as recorded as Instrument No.

20051215000842120 in the Office of the Judge of Probate in Madison County, Alabama (Tract

1). For reference and orientation of the general area, a true and accurate satellite image and

survey are provided below depicting Tract 1, which generally consists of the real property to the

east of Lake 5, around the south of Lake 5 to the railroad tracks, and to the west of Lake 5.

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26. Because of a utility and drainage easement granted and conveyed by members of

the McDonald family to Huntsville in 1987 around the perimeter of Lake 5 (the Easement), all

or a large portion of Tract 1 was undevelopable. However, this also made the property extremely

cheap.

27. Instead of communicating the opportunity to purchase Tract 1 to the Breland

Family of Companies (as he was obligated to do), Culbreath decided to usurp this opportunity for

himself and the other Defendants.

28. Culbreath took the opportunity to Packard and they hatched a conspiracy to

cheaply acquire Tract 1 (which was burdened by the Easement), create the Parkside Project and

directly compete with the Old Town Project.

29. Culbreath, Packard and/or other Defendants approached Dallas Fanning, the then-

Director of Urban Development for Huntsville, (Fanning) about vacating the Easement that

encumbered Tract 1 so it could be developed after they secretly acquired it.

30. Although Fanning knew of the critical nature of the Easement for Huntsvilles

current and future stormwater drainage needs in the area of Cummings Research Park (Research

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Park) and Bridge Street Town Center (Bridge Street), Fanning promised Defendants to take

the necessary action to cause Huntsville to vacate the Easement after they had Tract 1 under

contract with the McDonald family. This would allow Defendants to acquire Tract 1 cheaply.

31. On February 3, 2009, Packard entered into a contract with the McDonald family

to purchase Tract 1 for $306,000 (or $0.21 per square foot). The contract for purchase and sale

of Tract 1 between Packard and the McDonald family had a contingency: if the McDonald

family could not get the Easement covering Tract 1 vacated by Huntsville, Packard could walk-

away from the deal and get his earnest money back. However, Defendants knew the escape

clause would be unnecessary with Fanning working to vacate the Easement.

32. On September 29, 2009, Packard and the McDonald family executed a second

contract for purchase and sale of Tract 1, which purportedly novated the February 3, 2009

contract, but kept the same contingency requiring the McDonald family to vacate the Easement

covering Tract 1. Again, the contingency requiring vacation of the Easement was illusory.

33. Fanning kept his promise to Defendants. On the eve of his retirement from

Huntsville, Fanning caused Huntsville to vacate 27.844 acres of the Easement (leaving

approximately 6 acres covered) so Defendants could acquire and use Tract 1 for the Parkside

Project. By Ordinance Nos. 09-1025 and 09-1026, the Huntsville Council authorized the

vacation of a portion of the Easement covering Tract 1. Ordinance Nos. 09-1025 and 09-1026

specifically state that said easement or portion being vacated is not presently used and is no

longer needed for a public or municipal purpose.

34. Fanning caused Huntsville to vacate the Easement for no money, and Huntsville

is now purchasing a portion of it back from Defendants for $2,106,000. Not surprisingly,

Fanning now works for Defendants.

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35. Huntsville vacated 27.844 acres of the Easement on Tract 1 by quitclaim deeds

recorded with the Madison County Probate Office on October 26, 2009. With the contingency in

the contract between Packard and the McDonald family satisfied, Packard closed the sale of

Tract 1.

36. On November 13, 2009, the McDonald family conveyed Lot 1 of Tract 1 to

Packard by general warranty deed. Packard immediately (on November 20, 2009) conveyed Lot

1 of Tract 1 to Attitude. On November 22, 2009, the McDonald family conveyed Lot 2 of Tract

1 to Attitude by general warranty deed. Attitude subsequently conveyed Lot 2 of Tract 1 to

Mushashi by quitclaim deed.

37. Not only did Culbreath steal the opportunity to purchase Tract 1 from the Breland

Family of Companies, he was actively involved with Defendants in the work surrounding

acquisition of Tract 1, the vacation of the Easement and other aspects of the Parkside Project

all while he was on the payroll of Breland Companies.

38. After obtaining Tract 1 largely clear of the Easement, Defendants worked to

convert Lot 1 of Tract 1 to condominium units so they could avoid having to comply with

Huntsvilles requirements for a public road. On September 17, 2010, Attitude filed a

Declaration of Condominium for Research Center of Research Park, a Condominium in the

Madison County Probate Office, which converted Lot 1 of Tract 1 into two separate

condominium units. For reference and orientation, a true and accurate survey is provided below

depicting Units 1 and 2 of the Research Center of Research Park Condominium (Research Park

Condo).

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39. During this time, the Breland Family of Companies mistakenly believed that

Culbreath was complying with his fiduciary duties and otherwise working on their projects,

including the Old Town Project. They now know that Culbreath was surreptitiously working

with Fanning, Packard and the other Defendants to acquire Tract 1, vacate utility and drainage

easements (including the Easement), develop the Parkside Project and otherwise interfere with

the Old Town Project.

40. Contemporaneously with the condoing of Lot 1 of Tract 1, Packard

incorporated Research Center of Research Park Condominium Association, Inc. (Research Park

Condo Association) to provide for the maintenance, operation and management of the

condominium known as Resource Center of Research Park Condominium. Packard created an

executive board for the Research Condo Association, which consisted of Packard and his

brother, Tim Packard, as well as Culbreath. Notwithstanding his position as the COO of Breland

Companies (which Packard knew of), Packard appointed Culbreath to the executive board of the

Research Park Condo Association and Culbreath accepted the appointment. Defendants

concealed this from the Breland Family of Companies.

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41. By a vote of two-thirds of the voting members of the Research Park Condo

Association and the action by Attitude in October, 2011, Lot 1 of Tract 1 went from two (2)

condominium units to four (4) condominium units. For reference and orientation, a true and

accurate survey is provided below depicting Units 1-4 of the Research Park Condo.

42. By October 2011, Defendants, including Culbreath, were attempting to attract a

hotel to the Parkside Project and, specifically, to one or more units of the Research Park Condo.

Culbreath knew Old Town was in discussions with a major hotel developer about constructing a

nationally branded hotel at the Old Town Project. While employed with Breland Companies and

working on behalf of the Breland Family of Companies, Culbreath met and negotiated with a

hotel developer to sell or offer for development a unit of the Research Park Condo (instead of

promoting the Old Town Project). Old Town recently learned that Culbreath acknowledged his

wrongful conduct to the hotel developer, specifically telling him not to disclose their meeting to

anyone because he worked for a developer [Breland Companies] who would be very upset.

Through Culbreaths deceit and deception, as well as the use of confidential, proprietary

information and/or trade secrets of the Breland Family of Companies, Defendants secured the

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construction of a Hampton Inn & Suites and a Home2 Suites for the Parkside Project on Unit 3

of the Research Park Condo.

43. In addition to luring the hotels to the Parkside Project, Defendants interfered with

Brelands efforts to secure other potential tenants for the Old Town Project, including Calhoun

Community College (Calhoun).

44. In 2011, Breland and Culbreath (or their agents) were negotiating with Calhoun to

be one of the primary tenants for the Old Town Project. Culbreath was actively involved in these

negotiations with Calhoun, including communications related to the proposed rental rate and

lease structure.

45. For reasons unknown to Breland at the time, Calhoun ultimately selected the

Parkside Project as its preferred site to recommend to its Board of Directors. Breland recently

learned that Calhoun selected the Parkside Project as its preferred site because Culbreath had

an interest in the Parkside Project and was secretly working with the other Defendants to

convince Calhoun (and other prospective tenants) to select the Parkside Project over the Old

Town Project. Culbreath and the other Defendants persuaded Calhoun to select the Parkside

Project using the confidential, proprietary information and/or trade secrets of the Breland Family

of Companies.

46. Breland became suspicious about the amount of time Culbreath spent with

Packard and confronted him. Culbreath assured Breland that he and Packard were not involved

in any improper conduct stating: Packard and I are just friends. He is my only friend and I

have told him not to speak to me about business because it would be a conflict of interest.

47. Little did Breland know, but Culbreath, Packard and/or the other Defendants had

been working for more than two (2) years on the Parkside Project, actively trying to sabotage the

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Old Town Project and the Joint Venture (i.e., the project between Huntsville and Madison to

share funding and tax revenues from the Old Town Project).

48. After Defendants (including Culbreath) convinced two (2) hotels to locate at the

Parkside Project and Calhoun to choose the Parkside Project as its preferred site, Culbreath

turned his focus to conspiring with Packard and the other Defendants to deter Cabelas from

locating its outdoor superstore at the Old Town Project.

49. In order to attract Cabelas, Defendants needed to expand the Parkside Project.

However, Defendants lacked the money to acquire additional property. Therefore, they

conceived an elaborate scheme for Huntsville to finance the entire expansion of the Parkside

Project under the guise of attracting Cabelas. Defendants convinced Huntsville to participate

in their scheme so it could have all of the tax revenues from Cabelas, not just the fifty percent

(50%) it would have received through the Joint Venture.

50. A few of the more specious parts of the actual and proposed transactions between

Defendants and Huntsville include:

a. Huntsville intends to pay Defendants $3,584,200 for a landscape buffer and a right of way. It is unprecedented for Huntsville to purchase property for landscaping between two (2) commercial

developments and a right of way -- which Huntsville always

requires developers to give to it.

b. Huntsville intends to pay Defendants $2,100,000 to expand Lake 5, even though Huntsville had the right to expand its use of Lake 5 through the Easement when the Parkside Project materialized

(until Fanning caused Huntsville to vacate it, as described above).

c. Huntsville will pay more than $1,000,000 to fill in a portion of Lake 5, and then simultaneously pay to expand it on another side.

51. Concurrently with their efforts to acquire the property to expand the Parkside

Project, Defendants convinced Huntsville to withdraw from the Joint Venture. This interfered

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with the proposed funding for the roads and infrastructure improvements for the Old Town

Project, which Old Town, Madison and Huntsville had been painstakingly negotiating for years.

52. Based on the actions of Defendants, in early 2013 Huntsville refused to sign the

Memorandum of Understanding negotiated by the parties to the Joint Venture and their counsel.

This allowed Defendants to misrepresent to Cabelas (and other potential tenants) that Breland

Companies and Breland Affiliates would not be able to timely develop roads and other

infrastructure for the Old Town Development.

53. As a direct result of Defendants unlawful actions, Cabelas chose the Parkside

Project as the site of its first outdoor superstore in Alabama.

54. Culbreath and the other Defendants accomplished all of this by using the

confidential, proprietary information and/or trade secrets of the Breland Family of Companies

that Culbreath misappropriated during his employment.

55. Culbreaths wrongful acts and omissions during his employment with Breland

Companies and work on behalf of the Breland Family of Companies are not limited to the

Parkside Project. Culbreath engaged in a number of other unethical, deceitful and deceptive acts

(identified below), including forming and/or participating in other competing projects, taking

kickbacks and otherwise stealing from the Breland Family of Companies. The other Defendants

willingly participated in and benefited from Culbreaths unethical, deceitful and deceptive acts.

56. Aside from the Parkside Project, Culbreath violated his duties and engaged in

wrongful conduct related to the business of 8075 and 8121. 8075 and 8121 own retail shopping

centers on Madison Boulevard (the 8075 / 8121 Project). Part of Culbreaths duties and

responsibilities during his work on behalf of the Breland Family of Companies included locating

and maintaining tenants for the 8075 / 8121 Project. During his employment, Culbreath secretly

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owned and promoted a competing development with Defendants on Madison Boulevard. As he

did with the Parkside Project, Culbreath ignored his duties and obligations to the Breland Family

of Companies by using confidential, proprietary information and/or trade secrets to steal (and

attempt to steal) tenants and potential tenants from 8075 and 8121 in favor of Defendants.

57. Also, Breland Companies recently discovered that, during the course of his

employment, Culbreath required various business partners of the Breland Family of Companies

to pay him kickbacks, personally taking money and residential lots that should have been paid or

transferred to the Breland Family of Companies. For example, Breland Companies learned that

Culbreath forced Jeff Mullins to make a cash payment to Culbreath in order to do business with

the Breland Family of Companies.

58. Similarly, Culbreath, personally and through Defendants, accepted real property

(specifically, lots) for payment of debts that were owed to Breland Companies (or the Breland

Family of Companies). One such instance involved a debt owed to Breland Companies by Real

Estate Land Developers, Inc. (RLD). In 2008, Culbreath told Breland Companies that RLD

did not have the money to meet its contractual obligations and that Breland Companies should

accept three (3) lots from RLD in lieu of payment. Breland Companies did so based on

Culbreaths recommendation as its COO. Breland Companies has now learned that, in 2009,

RLD transferred to Culbreath and/or the other Defendants additional lots in connection with its

debt -- instead of transferring them to Breland Companies.

59. Breland Companies also recently discovered that, during his employment,

Culbreath operated and participated in a competing residential construction business antagonistic

to and in competition with the Breland Family of Companies.

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60. The extent of Culbreaths and the other Defendants wrongdoing remains largely

unknown due to the measures taken by them to conceal their illicit activities, including setting up

and using secret email addresses to perpetrate their wrongful acts and omissions. However,

Defendants continue their efforts to divert actual and/or prospective contractual and business

relations away from the Breland Family of Companies.

61. Culbreath and Defendants are nothing more than common thieves. All of the

above referenced acts were actively concealed from the Breland Family of Companies and were

not discovered until 2014.

CAUSES OF ACTION

Count I

Breach of Contract

62. Breland Companies and Breland Affiliates reallege and reassert the preceding

factual allegations as if fully set forth herein.

63. Culbreath entered into a valid and binding contract with Breland Companies

and/or Breland Affiliates which was supported by adequate consideration.

64. Culbreaths employment contract required him to, among other things, act as an

agent for and in the best interests of the Breland Family of Companies in connection with their

operating activities.

65. Culbreath breached his contractual agreement with Breland Companies and/or

Breland Affiliates by, among other things: (1) failing to fulfill his duties and obligations to the

Breland Family of Companies; (2) failing to deal in good faith, fairly and honestly with the

Breland Family of Companies; (3) failing to honor or otherwise comply with his promises and

obligations to the Breland Family of Companies; (4) failing to adequately represent the interests

of the Breland Family of Companies; (5) improperly competing with the Breland Family of

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Companies; (6) misappropriating confidential, proprietary information and/or trade secrets of the

Breland Family of Companies; (7) usurping business opportunities; and (8) otherwise

committing the acts described herein.

66. Breland Companies and/or Breland Affiliates have fully performed their

obligations pursuant to their contractual agreement with Culbreath, and any condition precedent

has been satisfied.

67. Breland Companies and Breland Affiliates have suffered damage as a direct and

proximate result of Culbreaths breaches.

68. Culbreaths acts are part of an overall scheme or conspiracy and were willful,

wanton, malicious, oppressive, reckless and/or were undertaken with the intent to defraud.

Count II

Breach of Fiduciary Duty



70. Culbreath, as an employee and executive officer of Breland Companies and/or

Breland Affiliates, owed, and continued to owe during his employment relationship, fiduciary

duties to the Breland Family of Companies, including, but not limited to, the highest obligation

of good faith, fair dealing, loyalty and due care. These duties encompassed, without limitation,

obligations to: (1) make full and complete disclosure of all material facts that might affect

business decisions and operations of the Breland Family of Companies; (2) use care, skill and

diligence in the performance of his duties and obligations; (3) fully and completely disclose all

competitive interests or other conflicts of interest; (4) exercise a high degree of honesty, loyalty,

integrity and good faith; (5) prevent and prohibit self-dealing; (6) refrain from competing with

business activities and operations of the Breland Family of Companies; (7) avoid interfering with

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actual and/or potential contractual or business relations for his personal gain to the detriment of

the Breland Family of Companies; (8) avoid usurping business opportunities; and (9) safeguard

the confidential, proprietary information and/or trade secrets of the Breland Family of

Companies.

71. The fiduciary duties imposed on Culbreath specifically encompassed the corollary

duties of an agent to disclose information that is relevant to the affairs of the agency entrusted to

him and to refrain from placing himself in a position antagonistic to his principal concerning the

subject matter of the agency. The duty not to use or communicate confidential information of

the principal for the agents own purposes or those of a third party precluded Culbreaths use of

the confidential, proprietary information and/or trade secrets of the Breland Family of

Companies in a manner antagonistic to their interests.

72. The Breland Family of Companies reposed trust and confidence in Culbreath that

he would abide by his fiduciary duties. Culbreath violated and breached his fiduciary duties of

care, honesty, candor, good faith and loyalty by, among other things, committing blatant acts of

economic espionage, self-dealing, and systematic misappropriation and/or usurpation of the

actual and/or prospective contractual and business relations of the Breland Family of Companies.

Culbreath placed himself in a position inimical to his duties to the Breland Family of Companies.

73. Culbreath violated and breached his fiduciary duties by, among other things: (1)

using the confidential, proprietary business information and/or trade secrets of the Breland

Family of Companies; (2) orchestrating a scheme to defraud the Breland Family of Companies;

(3) procuring secret profits from the Breland Family of Companies; (4) usurping or allowing

others to usurp business opportunities that rightfully belonged to the Breland Family of

Companies; (5) acting adversely to the interests of the Breland Family of Companies; (6)

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misrepresenting information to and concealing information from the Breland Family of

Companies; and (7) making misrepresentations to actual and/or potential contractual or business

relations of the Breland Family of Companies.

74. As a direct and proximate result of the Culbreaths disloyal acts, Breland

Companies and Breland Affiliates have sustained significant damages, including, but not limited

to: the loss of business and commercial reputation, goodwill, profits, business and economic

opportunities. Culbreath is not entitled to any salary, commissions, bonuses, dividends, benefits,

or other monetary payments received from Breland Companies and/or Breland Affiliates during

the period in which he breached his fiduciary duties. Culbreath must disgorge and return all

payments made to him by Breland Companies and/or Breland Affiliates during the period of his

disloyalty and self-dealing, which appears to span the entire length of his employment.



Count III

Fraudulent Misrepresentation



77. Where a fiduciary, such as Culbreath, fails to disclose a material fact, there is

actionable fraud.

78. Before and at the inception of his employment relationship, Culbreath made

certain express and implied misrepresentations to Breland Companies and Breland Affiliates

including, but not limited to, those misrepresentations contained in paragraphs 14 through 61

above and that Culbreath would: (1) be truthful, honest and fair with the Breland Family of

Companies; (2) work on behalf of the Breland Family of Companies (rather than their

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competitors); (3) perform all duties and obligations owed by him to the Breland Family of

Companies; and (4) maintain the confidentiality of documents and information related to the

business of the Breland Family of Companies, including, but not limited to, existing and

prospective developments.

79. Culbreath further misrepresented his relationship with Packard to Breland

Companies and Breland Affiliates at various times during his employment. These

misrepresentations included, but were not limited to, that he and Packard were just friends and

did not discuss business because that would be a conflict of interest.

80. Culbreath made these misrepresentations of material fact willfully to deceive,

recklessly without knowledge or by mistake and innocently.

81. Culbreaths misrepresentations induced Breland Companies and Breland

Affiliates to act or refrain from acting, including, but not limited to: hiring and retaining

Culbreath; giving Culbreath access to confidential, proprietary information and/or trade secrets;

sharing business prospects with Culbreath; permitting Culbreath to negotiate and deal with

business partners; and otherwise allowing him to work on the Old Town Project, the 8075 / 8121

Project and other developments and matters associated with the Breland Family of Companies.

82. Breland Companies and Breland Affiliates reasonably relied on and acted to their

detriment as a result of Culbreaths misrepresentations.

83. Culbreaths fraud and misrepresentations caused substantial loss and damages to

Breland Companies and Breland Affiliates.



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Count IV

Fraudulent Suppression



86. Culbreath suppressed facts which were material to Breland Companies and

Breland Affiliates, including, but not limited to, those material facts in paragraphs 14 through 61

above, and that he would not: (1) be truthful, honest, and fair with the Breland Family of

Companies; (2) work on behalf of the Breland Family of Companies; (3) perform all duties and

obligations owed by him to the Breland Family of Companies; or (4) maintain the confidentiality

of documents and information related to the business of the Breland Family of Companies,

including, but not limited to, existing and perspective developments.

87. Similarly, Culbreath suppressed various business opportunities (such as the

opportunity to acquire Tract 1); his self-dealing (including the kick-backs he received);

competing businesses; and involvement with and work on behalf of the Parkside Project and the

other Defendants. Culbreath was bound to disclose these and other material facts to Breland

Companies and Breland Affiliates as a result of his position and role with Breland Companies

and Breland Affiliates and/or due to the particular circumstances of this case. Culbreath also

provided Breland Companies (and the Breland Family of Companies) information which was

likely to mislead without complete and accurate communication of that information, including,

for example, his relationship with Packard.

88. Culbreath recklessly suppressed these facts, without true knowledge thereof, or

suppressed these facts by negligence or mistake, but did so with the intention that Breland

Companies and Breland Affiliates rely on the information Culbreath was giving to them.

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89. Culbreaths fraudulent concealment or suppression and deceit caused substantial

loss and damages to Breland Companies and Breland Affiliates.



Count V

Misappropriation of Trade Secrets



92. Culbreath had access to and obtained a variety of confidential, proprietary

information and/or trade secrets of the Breland Family of Companies, including, but not limited

to: price lists, customer lists and cost information, all of which constitute trade secrets within

the meaning of the Alabama Trade Secrets Act, Ala. Code 8-27-2(1) (1975).

93. Despite substantial efforts to maintain their secrecy, Defendants used and

disclosed confidential, proprietary information and/or trade secrets, without a privilege to do so,

including those related to the Old Town Project, the 8075 / 8121 Project, Bridgewater Landing,

Iredell and Magnolia Park.

94. Defendants wrongfully misappropriated from Breland Companies and Breland

Affiliates the following types of information:

i. information used in the Breland Family of Companies trade or business;

ii. information included or embodied in a formula, pattern, compilation, computer software, drawing, device, method,

technique, or process;

iii. information not publicly known and was not generally known in the trade or business;

iv. information that could not be readily ascertained or derived from publicly available information;

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v. information subject to reasonable efforts to keep said information secret and confidential; and

vi. information with significant economic value.

95. Defendants actions in obtaining, using and disclosing, without a privilege to do

so, this confidential, proprietary information and/or trade secrets breached the confidence

reposed in Culbreath by Breland Companies and Breland Affiliates.

96. Defendants have obtained, used and disclosed, without a privilege to do so, this

confidential, proprietary information and/or trade secrets to injure and cause Breland Companies

and Breland Affiliates to suffer loss of business and profits.

97. Defendants unlawful misappropriation of this confidential, proprietary

information and/or trade secrets caused Breland Companies and Breland Affiliates irreparable

injury and, unless restrained and enjoined, Defendants will continue to commit such acts.

Breland Companies and Breland Affiliates remedies at law are not adequate to compensate

them for these inflicted and threatened injuries, entitling them to additional remedies, including

injunctive relief.

98. Defendants acts are part of an overall scheme or conspiracy and were willful,


Count VI

Tortious Interference with Actual or Prospective Contractual and/or Business Relations



100. Breland Companies and Breland Affiliates had substantial rights in and

maintained a business relationship with their customers, tenants, prospective tenants and

business partners, including those described above (such as Huntsville and the McDonald

Family), to which Defendants were all strangers.

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101. Defendants knew of these contractual and business relationships.

102. Notwithstanding their knowledge, Defendants willfully, intentionally, with malice

and without justification or privilege acted to induce, and did induce, them to discontinue their

actual and/or prospective contractual or business relationships with Breland Companies and

Breland Affiliates.

103. Defendants used improper means, including deception, to interfere with

contractual and/or business relationships of Breland Companies and Breland Affiliates.

104. Defendants interference was intentional and designed to disrupt the actual and/or

prospective relationships between the Breland Companies and Breland Affiliates and the

individuals and entities described above, including, but not limited to: the McDonald Family,

Huntsville, Cabelas, the hotel developer, Calhoun and other prospective tenants. Defendants

engaged in a course of conduct that was intentionally and foreseeably calculated to undermine

and/or destroy Breland Companies and the Breland Family of Companies actual and/or

prospective contractual or business relations.

105. As a direct and proximate result of the acts of tortious interference with Breland

Companies and Breland Affiliates contractual and business relations, Defendants have caused

substantial damage and injury to Breland Companies and Breland Affiliates, including, but not

limited to: the suspension of business dealings, lost profits and damage to their goodwill and

business reputations.

106. Defendants acts were part of an overall scheme or conspiracy and were willful,


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Count VII

Business Defamation and/or Trade Libel



108. Defendants made the false statements described above to actual and/or

prospective contractual or business relations of Breland Companies and Breland Affiliates,

including, but not limited to: Huntsville, Cabelas, the hotel developer, Calhoun and other

prospective tenants. For example, Defendants have repeatedly disseminated false information

that Old Town will not be able to timely secure roads to the Old Town Project.

109. As a direct and proximate result of Defendants false and defamatory statements

Breland Companies and Breland Affiliates have suffered substantial damage and injury,

including, but not limited to: injury to their reputation and pecuniary loss and damage.

Moreover, unless restrained and enjoined, Defendants will continue to make defamatory

statements.

110. No remedy at law is adequate to compensate Breland Companies and Breland

Affiliates for these inflicted and threatened injuries, entitling them to additional remedies,

including injunctive relief.

Count VIII

Unjust Enrichment



112. Defendants improperly used and procured the assets and business of the Breland

Family of Companies by, among other things: stealing the property for the Parkside Project,

Cabelas, the hotels, Calhoun and other prospective tenants; misappropriating the confidential,

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proprietary information and/or trade secrets of the Breland Family of Companies; competing

with the Breland Family of Companies; usurping business opportunities; and otherwise

committing the illegal and unfair business practices described above. Defendants benefited and

continue to benefit, directly or indirectly, from their wrongful acts and omissions.

113. By their wrongful acts and omissions, Defendants have been unjustly enriched at

Breland Companies and Breland Affiliates expense.

114. The circumstances of Defendants unjust enrichment are such that they should, in

good conscience, make restitution to Breland Companies and Breland Affiliates, which includes,

without limitation, disgorging all personal property, profits, benefits and/or other compensation

obtained by from their wrongful conduct.

Count IX

Civil Conspiracy



116. Defendants recklessly, willfully and intentionally conspired with one another in

callous disregard for rights and interests of the Breland Family of Companies to accomplish an

unlawful end or to accomplish a lawful end by unlawful means. Defendants agreed to commit

each of the wrongful and tortious acts discussed above, including, but not limited to, breach of

contract, breach of fiduciary duties, misrepresentation, suppression, misappropriation of trade

secrets, tortious interference with contractual and/or business relations and business defamation.

Defendants devised a plan to accomplish their ends.

117. The intent and purpose of the conspiracy, and the underlying combinations of

unlawful acts and misconduct committed by Defendants, was to steal information, resources,

assets and business opportunities of the Breland Family of Companies to benefit their own

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interests and pursue their competing developments. Defendants had a financial motive or

incentive to accomplish the conspiracy.

118. By entering into this conspiracy, Defendants have permitted, encouraged and

induced all of the wrongful and tortious acts and omissions discussed above.

119. Breland Companies and Breland Affiliates have suffered, and continue to suffer,

severe, immediate, and irreparable harm, damage and injury by the wrongful acts committed in

the course of the conspiracy.

PRAYER FOR RELIEF

WHEREFORE, premises considered, Breland Companies and Breland Affiliates

respectfully request that Defendants be summoned to appear and answer, and that upon final

trial, the Court enter a judgment for Breland Companies and Breland Affiliates and against

Defendants as follows:

A. for actual damages, consequential damages, punitive and exemplary damages, statutory damages, and pre- and post-judgment interest;

B. for preliminary and permanent injunctive relief;

C. for the imposition of a constructive trust on Defendants businesses formed and operated as a result of Defendants wrongful actions and/or on any and all real and personal property (including, but not limited to: securities, assets, revenues,

profits or proceeds of Defendants businesses);

D. for restitution and disgorgement of all ill-gotten gains unjustly obtained and retained by Defendants;

E. for attorney and expert witness fees, court costs, and all other expenses associated with the prosecution of this action; and

F. for such other and further relief to which Breland Companies or Breland Affiliates show they are justly entitled at law or in equity.

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JURY DEMAND

Breland Companies and Breland Affiliates demand trial by jury of all claims or issues so

triable.

Dated: August 18, 2014

/s/ Walter A. Dodgen

Walter A. Dodgen

Matthew B. Reeves

Stephen D. Davis

MAYNARD, COOPER & GALE, P.C.

655 Gallatin Street, SW

Huntsville, Alabama 35801

Telephone: (256) 551-0171

Facsimile: (256) 512-0119

[email protected]

[email protected]

[email protected]

Attorneys for Plaintiff Breland Companies,

L.L.C.; Old Town Investments, L.L.C.; 8075

Madison Blvd., L.L.C.; and 8121 Madison

Boulevard, L.L.C.

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Plaintiffs will personally serve Defendants at:

Michael W. Culbreath

81 Lake Forest Boulevard


James B. Packard

3060 High Mountain Road


Attitude, L.L.C.

c/o James B. Packard



Mushashi, LLC

c/o James B. Packard



breland vs. culbreath

Documents

alabama breland companies

breland family of companies

breland enterprises

breland affiliates1

culbreath culbreath

state of alabama

packard packard

madison boulevard