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RICHARD THOMAS,
Plaintiff,
Defendants.
/
COMPLAINT
1. This is a cause of action for damages within the jurisdiction of the court.
2. The Plaintiff is a resident of Sanford, Florida and over the age of 21 and
Boat Key, Sarasota County, Florida over the age of 21 and otherwise sui juris.
Sarasota, Florida.
5. At all times material hereto, the Plaintiff was employed by the Defendant,
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6. As the Director of Fixed Operations, Plaintiff was responsible for the parts
department, service department and body shop profitability. The rental car manager
7. The Plaintiff worked directly under Buchanan and Ernie Parisi (“Parisi”),
8. The Plaintiff was hired as fixed operations director to make the parts,
9. When Plaintiff was hired, the customer satisfaction index (“CSI”) for those
10. The Plaintiff was proud of his ability to turn the operation from the worst in
the region in two years to make it the best in the region and win the President’s Award.
11. He was very proud of the manner in which the customers were treated by
CATTLEMAN PROPERTY
12. While working at the dealership, the Plaintiff was taken into the confidence
13. Buchanan told him that if he could put the deal together that he would take
14. He was told he could use the money to become a partner in his own store
16. Plaintiff performed his part of the agreement, got everything completed
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and then Buchanan renegged on his promise.
17. The subject property was a piece of property that the body shop had been
18. The body shop was in an existing building on the property which Sarasota
19. Buchanan wanted to own the property, but the negotiations had fallen
through and there was an absolute inability of Buchanan or his designee and attorney,
John Tosch (“Tosch”) to communicate with the owner, Charles Miller (“Miller”).
20. When Plaintiff was hired at Sarasota 500 they had been attempting to
make the purchase from Mr. Miller for some time. Everything had gone wrong.
22. Tosch and Miller reached such a strong personality conflict that Miller had
23. When they didn’t exercise the option to purchase in a timely manner, Mr.
Miller had had all he could stand, exercised his right to have them vacate the premises
24. Two weeks after the Plaintiff was hired the problems concerning
negotiations between Sarasota Ford and Charles Miller were brought to him.
25. They had a significant investment in the property at that point and the
Plaintiff was called upon to smooth things over to salvage the transaction.
26. It was ironic that they were still attempting to finish the construction that
they were doing on the property which was half done and they were trying to do
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business out of it, the end of the lease had come and Mr. Miller was telling them to get
out and they were still trying to get people to finish what they had paid them to do in
27. At that point the Plaintiff went to meet with Mr. Miller to see if he could
28. The Plaintiff called every vendor and Mr. Miller, had a meeting at the
property to address everybody’s concerns, came up with a plan to solve them, executed
the plan, got the construction done, got the business operating and then addressed the
29. Miller had told the Plaintiff and Buchanan in a meeting that he would not
deal with Tosch but that he would deal with Plaintiff and would continue to go forward as
long as he did not have to deal with Mr. Tosch and could deal with the Plaintiff.
30. Buchanan promised the Plaintiff that he would give him 25% of the value
32. The dealership, through a sequence of leases, took over more and more
square footage of the property and put a $50,000 deposit which was non-refundable
33. Mr. Miller did not want to pay capital gains so the deal was structured so
34. It consisted in a series of leases so that as his leases ran out, Sarasota
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500 would take over additional square footage and eventually would have control over
the entire facility and after they took over the last square footage they would give him a
$50,000 non-refundable deposit to execute a purchase of the property or Miller had the
35. These leases were structured by the Plaintiff and Charles Miller under the
direction of Buchanan.
36. They had agreed upon the ultimate purchase price subject to the leases.
written agreement.
38. Plaintiff was not able to find his copy of the agreement and requested
40. The Plaintiff typed Exhibit 1 on January 31, 2001, after he had been taken
to lunch by Buchanan and told that this is what Buchanan wanted him to do to tie him to
the store so that he wouldn’t leave and he would stay with the corporation.
41. Buchanan stated, “I want to do this for you as additional part of your
compensation to tie you to the store with golden handcuffs” so that the Plaintiff wouldn’t
42. As can be seen, the document originally stated: “Tenure, Began for this
purpose 8/23/99 and will concluded 8/23/09. Vesting at 10% per year on an annual
basis.”
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43. At the time that the document was executed that provision was stricken
through and the Defendant, Buchanan inserted the phrase, “Richard has to be
employed.”
44. Upon receipt of the document the Plaintiff noticed that Vern Buchanan had
made two additional changes to the document after it was signed and initialed by
Plaintiff.
45. Change One. Buchanan struck out the word “owned” 25% and substituted
“Will have option to buy” and initialed that. Plaintiff never saw, initialed or agreed to this
change.
46. Change Two. Buchanan also made a notation “For purchase of” and then
some word that is illegible. Neither Buchanan nor Plaintiff initialed this change. Plaintiff
48. At the time that Plaintiff was terminated by the dealership he asked
Buchanan about the provision that required him to be employed by the dealership and
was told that since he did not quit but was terminated it would not affect his rights to the
25% under the agreement. Buchanan confirmed that he did not have to be employed by
“his golden handcuffs” to keep the Plaintiff in his employ and stated that that was the
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that he could not leave for another job.
51. The intent of the parties at the time it was executed being that Vern
Buchanan wanted the Plaintiff to continue in Buchanan’s employ and this would provide
an incentive for him to remain in his employ. However, since he was terminated by
Buchanan and it would be impossible for him to continue in his employ, Buchanan
agreed that it would be unreasonable and unfair to enforce that provision since it failed
of its essential purpose which was for Buchanan to have “golden handcuffs” on the
Defendant Buchanan about that provision and Buchanan said not to worry and that he
wasn’t going to enforce it since he was terminated rather than quitting of his own
volition.
MEETINGS
53. With respect to Buchanan’s involvement in the business, the Plaintiff was
located at Sarasota Ford which was the flagship store where Buchanan’s office was
located.
54. Buchanan was at the meetings that happened in that office and had day to
55. Plaintiff and Buchanan also attended various meetings involving all of the
dealerships. At these meetings, the attendees would discuss the direction of the
business, ways of doing business, and a lot of matters that were really out of the scope
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56. The primary focus of these meetings was how to increase production,
57. There were monthly meetings where the financial statement was gone
over, the balance book of the store, who did what and how other dealerships were
doing.
58. The Plaintiff also had conversations with Buchanan and meetings with
Buchanan and others, sometimes weekly, sometimes bi-weekly but there was always
59. Plaintiff paid particular attention to his scope of the business but each
department head was there and a review was made by each department.
60. Although Buchanan was not at every one of the meetings, he was at the
majority of the meetings and when he was there he was an active participant in the
meetings.
61. Tosch was also at these monthly meetings two-thirds of the time.
62. For Buchanan to have the success that he’s had in the business he had
knowledge of not only what was going on in the stores but in all of his business
undertakings and in fact would compare the results of each of the stores at the
meetings.
63. They had the P&L statements from all the different stores at the meetings
and the statistics for the operations at the different stores at their meetings and
Buchanan evidenced an active working knowledge of what was going on at all of the
stores.
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64. At the meetings, they discussed what worked and what didn’t work from
store to store.
65. The Sarasota 500 store General Manager was always present at these
meetings as were general managers from other stores from time to time.
66. They also had what were referred to as group meetings when all of the
general managers would come in and go over the entire operation of the corporation
67. Plaintiff did not attend all of these meetings but he attended some of them.
68. They were held on a monthly basis with all the partners.
69. From time to time, these meetings were held at different locations.
70. He was present at these meetings from time to time to review fixed
operations.
71. The same issues were discussed at these meetings involving charge
backs, kick backs, possible irregularities and people that worked consumer complaints
72. The preload issue was discussed with all of the general managers at one
PRELOADING
73. One of the issues addressed at these meetings that affected Plaintiff’s
74. The purpose of preloading of the cars was to make additional gross.
75. At the time of the pre-delivery inspection various products and accessories
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were pre-loaded creating additional gross for each unit which made the prices very
healthy.
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93. It was also presented to consumers in such a way that either they bought
the car as equipped or they didn’t buy it, but that would be their only choice.
94. So that it’s clear, there were three cost items involved. One would be the
cost to the dealership, the actual cost of the product to the dealership. Two would be
the inflated costs placed on the product in inventory. Three would be the cost to the
consumer which would have the additional profit above the inflated inventory cost.
95. They would be costed out as if they were being purchased on an
individual basis when, in fact, they were either purchased on a palate or truck load basis
at a considerable discount.
96. Buchanan would still stick to the higher individual cost to inflate the
inventory cost to avoid paying commission on the real profit to the dealership.
97. On the subleted items they were billed directly through the office. They
were not billed through the service department and the Plaintiff never saw them so he
doesn’t know what the real cost of those products were or how much money was
diverted.
98. Plaintiff was paid a straight salary and not caught up in the game of trying
to figure out what the true profit was on any transaction.
99. For example, it was clear that the salesmen did not know what was
included in their pack.
100. I was asked repeatedly by salesmen what was included and I directed
them to their sales manager.
101. By transferring the additional profit to the parts department where the
scale is much smaller, the dealer creates more profit to the dealership and less
commission to the salesmen.
102. The additional money would be taken as profit or inventory reduction or
put into other income.
103. At the time of predelivery inspection, every truck got a bed liner.
104. The bed liner repair order was written, billed out and charged.
105. There were other packages handled the same way, such as paint sealant,
fabric guard, tires, wheels, stripes, bug guards, floor mats, leather interior.
106. In some cases they were not put on the vehicle, but were still charged to
the vehicle.
Buchanan, that they were paying too much to the private vendors to install aftermarket
items.
108. He was told in response that it was a business decision, that they were
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their vendors and those were their costs.
109. Plaintiff believes the only reason they would tolerate such excessive
prices and diverting profits would be because they were getting kick backs from those
vendors. 110. Buchanan is too good of a businessman to pay more than the
vendors were worth. It would only make sense if the vendors were charging excessive
additional profit by way of a kick back and not have to pay the salesmen.
CHARGEBACKS
111. Charge backs from lenders were always a subject of discussion at every
meeting.
112. Some of the charge backs were because cars had to be bought back.
113. Although this was not in the scope of Plaintiff’s employment, these
114. Buchanan had those communications concerning the charge backs from
lenders and understood when the reasons for the charge backs were explained.
applications (that is fraudulent applications which were discovered when they were
checked by the lender); Power booking on cars (that is, items indicated as being on cars
which were not on cars so that the cars qualified for higher loans); falsification of other
documents that resulted in the bank calling the loan; among others.
116. During the meetings it was suggested that for the appraisal to be done
accurately that when a used car comes in that they create a booking sheet which would
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list all of the options on the car and all you had to do was pull the computer screen to
117. This was objected to by the Sales Managers because it would eliminate
the ability of the sales department to power book the cars and get over advances on
them.
118. Ultimately, Tosch and Buchanan decided to not allow the service
department to do book out sheets to show what was really on the cars.
119. The decision was left to the office and sales management to take care of
booking out all cars rather than the service department during part of the pre-delivery
inspection.
120. It was clear that giving it to the service department would eliminate
121. Nonetheless, Buchanan and Tosch made the conscious decision to not do
it that way.
122. The Plaintiff repeatedly questioned these decisions and the motivation
BAD PRACTICES
124. The Plaintiff also made it clear that he didn’t want to be involved in things
125. As long as the deal got done Buchanan didn’t really express any concern
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126. This attitude was made apparent to Plaintiff time after time after time.
ILLEGAL ALIENS
127. When Plaintiff started his employment at Sarasota Ford there was a group
128. Buchanan had imported them to do work on his house, specifically the
129. He provided them sleeping quarters in the office beside the store.
possible ambassadorship and the illegal aliens working at the store on payroll and
getting rid of the illegals immediately so he could distance himself from the issue.
with Tosch when the conversation took place between Tosch and Buchanan. The
132. The conversation was to the effect, “We need to get rid of Tony and we
need to do it now. I need to be distanced from any of the people that don’t have a green
card.”
133. The subject of the illegal aliens was brought up during the course of one of
the meetings. They paid close attention to the issue to make sure that everyone had to
have a social security card or a green card and that they had a specific employee at
Sarasota Ford who had to be released who had been a laborer in construction of the
primary residence of Buchanan and after that construction was working at the store, had
been working at the store and had actually been staying at the store but was released
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because he didn’t have a green card.
134. He had been employed at the dealership for some time at the time that he
was fired.
135. The individual, Tony, was receiving a payroll check from Sarasota Ford.
He was fired by Paul Doherty who thought enough of him and his outstanding working
136. Many documents were kept off site at a storage facility at a farm owned by
CAMPAIGN CONTRIBUTION
137. During the 2000 Presidential campaign, the Defendant Sarasota 500
138. His pay check was docked $1,000 and made up in the next pay check.
139. The $1,000 contribution to G.W. Bush’s campaign was taken from his
140. It was his understanding that that was happening with all the managers.
141. Also, any time an official needed a vehicle for campaign purposes or
143. When the vehicles were taken out overnight and brought back he would
find campaign literature in the vehicles when he cleaned them up, along with billboards
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and posters and then he would have to have his people detail them and get them ready
144. He would store the campaign materials at the dealership and another
145. The dealership was never paid for the use of these vehicles.
146. Customers were charged $200 for title, tags and so forth which only cost
$160.
148. The Plaintiff questioned that in a meeting and said that they shouldn’t do
TERMINATION
149. Plaintiff was terminated when he disclosed to Buchanan that his wife had
150. The Plaintiff’s wife’s diagnosis of the brain tumor came around the time
that the estimates and renewal of insurance and because of the changes and accruals
that would have been set up for her health, they put such a high dollar amount on the
accrual that it was not cost effective to keep the Plaintiff. Within 90 days of that he was
gone.
151. Plaintiff overheard Buchanan expressing his concern that her medical
condition could affect the company’s insurance costs in a discussion about insurance
costs.
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152. The Plaintiff was terminated in January of 2004.
153. The deal, the ultimate purchase of the Cattleman property, was
154. The Plaintiff was terminated while Buchanan was out of town.
155. When Buchanan got back into town and he found out Plaintiff was fired he
said, “I was out of town, don’t worry about it, we’ll get it worked out.”
156. Plaintiff later called Buchanan on the phone and set up an appointment to
157. At that first meeting, Plaintiff asked Buchanan if the Cattleman Property
Agreement was still in force and effect and Buchanan told him that it was.
158. Buchanan offered Plaintiff an opportunity to continue working for him for
an additional 6 months as fixed operations officer for all of the dealerships for $10,000
160. After this first meeting Plaintiff told Buchanan that he would get back to
him.
161. Plaintiff then set up was a second meeting where he declined Buchanan’s
offer.
162. Buchanan then offered the Plaintiff $9,000 in severance if he would sign a
163. Plaintiff asked Buchanan if the release agreement would include the
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164. Plaintiff declined this offer.
165. Plaintiff refused to sign any release and, therefore, did not receive the
166. While Plaintiff was employed by Suncoast there were 2 other employees
167. A service writer hurt his knee and the comment was, “This is a problem. I
168. There was technician that got something in his eye working and the
comment was, “He’s careless. This is the second time. He needs to go.”
169. Neither of these employees were counseled before being terminated and
170. They were told they were being replaced because the dealership was
171. The Plaintiff knows for certain that they were definitely terminated for
health issues.
173. The Plaintiff had been through the NADA (National Automobile Dealer
Association) School which gave him enough information to ask questions about
wrongdoings he witnessed.
174. He asked a lot of questions and was told, “It is what it is. Leave it alone.
Go do your job.”
175. Although Plaintiff was selling more products, doing more service work,
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aftermarket items were thriving, putting products on virtually every car, his P&L profits
176. This is one of the things that the Plaintiff was questioning. Although the
way the Plaintiff was paid, it did not affect his pay plan and he was told to go do what he
does, it was affecting the parts managers and other who were on commissions.
177. The Plaintiff raised this issue with Buchanan himself on behalf of his
178. He had been trained at that point to question the P&L statement.
180. The Plaintiff wanted to, quite frankly, prove his worth.
181. From his personal pride he wanted the numbers to accurately reflect how
182. He wanted to see that they were at a number that was consistent with
183. In the final analysis if the numbers were what they should have been,
perhaps he would have been worth more and been able to have his salary raised as
well.
EARLY BOOKING
184. The witness also was aware that there were sales that were recorded prior
to the actual sale and delivery of the vehicle and these situations where the sale was
185. It was booked to the manufacturer and the warranty would start running.
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186. The service writers had a problem with this issue.
187. They had people come in and would tell them a cost for performing a
repair and the customer would reply, “Well, wait a second, it’s under warranty.”
188. Then the service department would have to explain that the warranty is
time and distance and they would have a report from the manufacturer that said the
189. The customer would say, “Well that’s not when I bought it.”
190. Then they would have to go backwards and find out when the customer
191. If the warranty started another time, the answer was given, “We made an
error in the office. We’ll take care of it.” which would take the form of being changed to
Ford Motor Company to change the date or in some cases the dealership would
purchase an extended warranty contract for the customer to make them happy.
192. Other times the dealer simply said, “We’ll give you some kind of discount.
193. The fact is that it happened and customers were inconvenienced and lost
SAFETY INSPECTIONS
194. Not every vehicle coming into the dealership went through safety
195. There were times the trades would come in and would be sold and put out
delivered before the Plaintiff ever saw the car even though he had the repair order and
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was prepared to do the work and the inspections, the car was gone and delivered.
196. He was told to go ahead and bill it and charge it and that when they came
197. This resulted in service charges being charged against consumers and
198. State and Federal law requires that the dealer verify whether catalytic
converters and exhausts are still on the automobiles before they can be retailed.
200. The Plaintiff knows for a fact that there were many times when it was not
done and somebody in the stores had to be falsifying these admissions statements in
REPAIRS
201. Buchanan has his own re-insurance company for extended warranties.
203. Plaintiff was frequently instructed to reduce repairs or deny claims even
though he felt that the claims were legitimate in order to keep from depleting the funds
204. Plaintiff was absolutely told to watch what they were spending in the
account and to hold the expenses down because that was the company’s money.
205. There were several times the Plaintiff wanted to have repairs done for
206. He was told that he could be overruled and the only one who could call
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Fidelity and get that done and to authorize it would be Buchanan.
207. A general manager of the dealership was unable to override and take care
of those issues from the Plaintiff or the claims that he thought were legitimate claims.
CHANGING CONTRACTS
208. The Plaintiff recalls one incident involving a used car assistant manager,
first name Richard, that had taken the trade from a customer, taken the title to the car
and sold it and increased the amount of the loan from the customer that she had
received.
209. The customer contacted the Plaintiff as fixed operations director and said
210. She came to him with her problem because she was happy with the
211. The issue she had was what she had agreed to her contract was up and
she still had payments and had been contacted about why she was behind in her
payments.
212. The Plaintiff pulled the deal and he found what was going on and turned it
213. Tosch was the first person to go to and Tosch had to communicate with
Mr. Parisi.
214. They ended up buying the woman’s car back or paying off the difference
215. The Plaintiff recalls making the comment at the time, “Gee, I wonder how
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many more there are like this.” because the person involved was a long time employee
216. In other words, they were getting customers and having them sign
contracts and then changing the contracts on the customer after they had signed.
218. To this day the Plaintiff doesn’t know how many others like it are out there.
DESTROYED RECORDS
219. Although Plaintiff was not personally present when records were
destroyed, Plaintiff is aware that there were times when he tried to pull records which
could not be found. The only reason that the Plaintiff could think of that they wouldn’t be
where they were supposed to be is that they had been destroyed. The Plaintiff does
recall a legal case where they were unable to find the file for review.
COUNT I
Breach of Contract
220. The Plaintiff realleges the allegations of the paragraphs 1 through 219 as
221. The Plaintiff has performed all conditions necessary to enforcement of the
222. The Plaintiff has made the demand upon Buchanan to honor the
223. The Defendant Buchanan has failed and refused to honor the agreement
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224. Plaintiff has been damaged by Buchanan’s refusal
for damages together with pre judgment and post judgment interest and costs and
COUNT II
Unjust Enrichment
226. The Plaintiff realleges the allegations of the 1 through 219 above as set
227. The Plaintiff has performed services for the Defendant Buchanan at
229. The continued retention of the benefit of the service by Buchanan without
WHEREFORE the Plaintiff requests the court to enter judgment for the Plaintiff in
the amount of the benefits conveyed and conferred upon the Defendant by the Plaintiff
COUNT III
Quantum Meruit
231. The Plaintiff realleges the allegations of paragraphs 1 through 219 above
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232. Defendant Buchanan requested the Plaintiff to perform services for him
and agreed to compensate the Plaintiff for the performance of those services.
233. The Plaintiff performed the services and the Defendant Buchanan has
WHEREFORE the Plaintiff requests the court to determine the value of the
service performed by the Plaintiff for the Defendant and to award a judgment in the
amount of said damages together with prejudgment and post judgment interest and
cost.
COUNT IV
Fraud
236. The Defendant Buchanan told the Plaintiff that he could have an interest in
the profit from the Cattleman property in order to “place golden handcuffs” on the
Plaintiff to induce the Plaintiff to remain at the dealership and not pursue any other
238. The Defendant Buchanan knew the statement to be false at the time it
was made.
239. As a direct result of the Plaintiff’s reliance upon the Defendant Buchanan’s
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false statement the Plaintiff sustained damages and did not receive the benefit he was
promised.
for damages together with pre judgment and post judgement interest and costs and
demands a trial by jury and reserves the right to amend the complaint to seek punitive
damages.
COUNT V
Misrepresentation
241. The Plaintiff realleges the allegation of paragraph 1 through 219 above as
242. The Defendant Buchanan told the Plaintiff that he could have an interest in
the profit from the Cattleman property in order to “place golden handcuffs” on the
Plaintiff to induce the Plaintiff to remain at the dealership and not pursue any other
244. The Defendant Buchanan knew the statement to be false at the time it
was made.
245. As a direct result of the Plaintiff’s reliance upon the Defendant Buchanan’s
false statement the Plaintiff sustained damages and did not receive the benefit he was
promised.
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246. Defendant Sarasota 500 owes Plaintiff $9,000.
for damages together with pre judgment and post judgment interest and costs and
demands a trial by jury and reserves the right to amend the complaint to seek punitive
damages.
__________________________
DOUGLAS S. LYONS, ESQ.
Florida Bar No. 128277
325 N. Calhoun Street
Tallahassee, FL 32301
(850) 222-8811 (telephone)
(850) 222-5583 (facsimile)
E-mail: DougSLyons@comcast.net
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