altrius complaint

Case 2:11-cv-00280-BCW Document 2 Filed 03/25/11 of 24

CALLISTER NEBEKER & McCULLOUGHCASS C. BUTLER (4202); [email protected] P. HARMON (12539); [email protected] Bank Building Suite 90010 East South TempleSalt Lake City, UT 84133

Telephone: (801) 530-7300Facsimile: (801) 364-9127

Attorneysfor PlaintiffAltius Capital Markets, LLC

IN THE UNITED STATES DISTRICT COURTDISTRICT OF UTAH, CENTRAL DIVISION

ALTIUS CAPITAL MARKETS, LLC,a Utah limited liability company, COMPLAINT

Plaintiff,Civil No. 2:11-cv-00280

vs.

CITATION CAPITAL PARTNERS, INC., a Judge Brooke C. WellsCalifornia corporation; CARDINALINDUSTRIAL REAL ESTATE SERVICES;LONGO REAL ESTATE SERVICES, INC., a

California corporation; GEORGE HICKER, an JURY DEMANDEDindividual; ROBB WENRICH, an individual;FORTRESS CREDIT CORP., a Delaware

corporation; and FORTRESS INVESTMENTGROUP LLC, a Delaware limited liabilitycompany,

Defendants.

Altius Capital Markets, LLC, by and through its counsel of record, and for its complaint

against Citation Capital Partners, Inc., Cardinal Industrial Real Estate Services, Longo Real

Estate Services, Inc., George Hicker, Robb Wenrich, Fortress Credit Corp., and Fortress

Investment Group LLC, hereby complains and alleges as follows:

557932.1

PARTIES, JURISDICTION AND VENUE

1. PlaintiffAltius Capital Markets, LLC (“Altius”), is a Utah limited liability

company with its principal place ofbusiness in Salt Lake City, Utah.

2. Defendant Citation Capital Partners, Inc. (“Citation”) is a California corporation

with its principal place ofbusiness in Costa Mesa, California.

3. Defendant Cardinal Industrial Real Estate Services (“Cardinal”) is an entity

headquartered in Sherman Oaks, California and not organized in any of the United States.

4. Longo Real Estate Services, Inc. (“Longo”) is a California corporation with its

principal place ofbusiness in Sherman Oaks, California.

5. George Hicker (“Hicker”) is an individual residing in California.

6. Robb Wenrich (“Wenrich”) is an individual residing in California.

7. Fortress Credit Corp. is a Delaware corporation and Fortress Investment Group

LLC (collectively referred to hereinafter as “Fortress”) is a Delaware limited liability company.

8. Jurisdiction and venue are proper in this judicial district inasmuch as the parties

have agreed that jurisdiction is proper in the state and federal courts sitting in the state ofUtah,

and pursuant to 28 U.S.C. 1332 and 1391. The nonresident Defendants purposefully availed

themselves of the benefits of conducting business in Utah by creating an active relationship with

Utah and Altius, a Utah entity in order to accomplish their business purposes, as more fully

alleged herein. Further, jurisdiction and venue are proper in this Court against the nonresident

Defendants under the Calder v. Jones Effects Test inasmuch as such Defendants were engaged in

a conspiracy which was aimed at Altius and the State ofUtah, as more fully alleged herein and

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consistent with the principles set forth in Pohl, Inc. ofAmerica v. Webelhuth, 2008 UT 89, 201

P.3d 944 (Utah 2008), and its progeny.

GENERAL ALLEGATIONS

9. On or about January 25, 2010, DLH Master Land Holding, LLC (“DLH”) filed a

voluntary bankruptcy petition under Chapter 11 of the United States Bankruptcy Code.

10. One ofDLH’s assets included in the bankruptcy estate was a 178-acre parcel of

real property located in Dallas, Texas, certain tangible personal property and fixtures attached to

the property, and all DLH’s right, title and interest in a lease encumbering the property (the

“Dallas Property”).

11. During DLH’s still-pending bankruptcy case, DLH entered into negotiations with

Greenfield Companies, LLC (“Greenfield”) to arrange for the sale of the Dallas Property.

12. In order to be able to sell the Dallas Property free of liens and encumbrances,

DLH entered into a settlement agreement with the creditors holding liens on the Dallas Property,

which settlement was approved by the bankruptcy court.

13. The bankruptcy court further authorized DLH to enter into an agreement to sell

the Dallas Property to Greenfield provided that the sale price of the Dallas Property was

sufficient to fund the settlement agreement with the creditors holding liens on the Dallas

Property and all closing costs associated with the sale.

14. During the negotiations between DLH and Greenfield, DLH prepared a Purchase

and Sale Agreement (“Greenfield Purchase Agreement”) for the sale of the Dallas Property and

sent the same to Greenfield for its review and execution.

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15. Under the terms of the Greenfield Purchase Agreement, Greenfield would pay

$49,500,000 to DLH to purchase the Dallas Property.

16. In addition to the Dallas Property, Greenfield also acquired an option to purchase

a 35-acre parcel of real property located in Sacramento, California (the “Sacramento Property”)

(collectively referred to hereinafter with the Dallas Property as the “Property”).

17. After acquiring the rights to the Property, Greenfield intended to sell the Property

to a third-party buyer.

18. To effect the sale of the Property to a third-party buyer, Greenfield entered into an

agreement (“Greenfield Altius Agreement”) with Altius by which Altius would attempt to find

a buyer for the Property or to structure and develop debt capital platforms to purchase the

Property.

19. Pursuant to the Greenfield Altius Agreement, Altius would earn certain

payments from Greenfield, including a 2% commission on the gross sale price of the Property

provided that the sale was accomplished through an asset based or traditional financing

transaction.

20. To compensate Altius for its time, materials, equipment, supplies, travel and

communications expended in furtherance of its performance of the Greenfield Altius

Agreement, Greenfield paid Altius in the amount of $60,000.

21. On January 28, 2011, Altius entered into a mutual confidentiality, nondisclosure

and non-circumvention agreement (the “Non-Circumvention Agreement”) with Citation. The

Non-Circumvention Agreement placed certain limitations on Citation’s use ofAltius’s

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confidential information including that Citation would “make no attempt to duplicate and/or

disclose [Altius’s] funding, financing and or credit enhancement strategy, business transaction(s)

and/or business concepts or ideas on its own account or with third parties.”

22. The Non-Circumvention Agreement further restricted Citation from

circumventing “or attempt[ing] to circumvent in any way [Altius] including but not limited to

contacting [Altius’s] business, underwriting, technology or contact sources without prior written

permission” from Altius.

23. The Non-Circumvention Agreement further required Citation to “notify [Altius] in

writing immediately if [Citation] has reason to believe that any person who has had access to

[Altius’s proprietary information] (including either party or its representative) has violated or

intends to violate the terms of this Agreement or otherwise disclose any of [Altius’s proprietary

information] in violation of the terms of this Agreement.”

24. In furtherance of the Greenfield Altius Agreement, and pursuant to the Non-

Circumvention Agreement, Altius provided Citation with confidential information concerning

the pricing, terms and financing options for which Greenfield intended to sell the Property, as

well as the impending sale of the Dallas Property from DLH to Greenfield.

25. This confidential information included a package prepared by Greenfield dated

January 27, 2011, the identity, business operations, contacts, goals, desires and characteristics of

ADESA Texas, Inc. (“ADESA”), the Dallas Property’s tenant, ADESA’s confidential lease

terms and obligations, and the funding terms necessary to effectuate the purchase of the

Property.

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26. None of this confidential information was available in the public domain, nor

would Citation have had access to this information but for Altius’s disclosures under the Non-

Circumvention Agreement.

27. Altius informed Citation that this information was being disclosed pursuant to,

and was protected by, the Non-Circumvention Agreement.

28. Citation subsequently disclosed Altius’s confidential information to Cardinal,

Hicker, Wenrich, and Fortress, among others. Without Altius’s confidential information

disclosed to Citation pursuant to the Non-Circumvention Agreement, Citation, Cardinal, Hicker,

Wenrich and Fortress would not have learned about the Dallas Property, nor about important and

essential terms related to the financing, leasing and operation of the Dallas Property, necessary to

evaluate the Dallas Property for purchase.

29. Cardinal, Hicker, Wenrich, and Fortress had knowledge that Altius had provided

confidential information concerning the proposed sale of the Property to Citation and that

Citation was obligated to not compete or circumvent Altius in any transaction relating to the

Property.

30. Cardinal, Hicker, Wenrich and Fortress accepted the Confidential Information

subject to these terms and conditions, which terms are standard in the industry.

31. Cardinal, Hicker, Wenrich, and Fortress had knowledge that Altius was entitled to

receive 2% commission of the sale price of the Property pursuant to the Greenfield Altius

Agreement.

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32. On March 2, 2011, Cardinal and Fortress provided Citation with a letter of intent

setting forth the “major terms and conditions” under which Cardinal and Fortress would

purchase the Property. The March 2, 2011 letter of intent listed the purchase price of the

Property as being $57,500,000. This letter of intent stated that it would remain open until March

9, 2011.

33. The March 2, 2011 letter of intent, signed by Joshua Pack ofFortress Credit

Corp., disclosed that Fortress Credit Corp. was an affiliate ofFortress Investment Group LLC.

34. On March 4, 2011, Altius, Citation, Cardinal, Fortress and Greenfield participated

in a conference call during which Cardinal and Fortress indicated that they were only interested

in purchasing the Dallas Property, a complete change from the letter of intent submitted only two

days prior to the conference call.

35. During this call, Cardinal acknowledged Altius’s right to compensation based on

Altius’s role in providing confidential information concerning the sale of the Property to

Citation, and subsequently to Cardinal, Hicker, Wenrich and Fortress.

36. Hicker admitted Cardinal and Fortress would not have acquired the confidential

information relating to the Property but for the disclosures made by Altius pursuant to the Non-

Circumvention Agreement.

37. Fortress did not refute the representations and acknowledgments made by Hicker

concerning Altius’s role in disclosing the confidential information and Cardinal and Fortress’s

reliance thereon or Altius’s entitlement to compensation.

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38. Despite the March 2, 2011 submission of a letter of intent for the purchase of the

Property, and with knowledge of Citation’s non-competition and non-circumvention obligations

to Altius, Cardinal and Fortress submitted a letter of intent directly to DLH for the purchase of

the Dallas Property.

39. Citation was aware of Cardinal’s efforts to purchase the Property directly from

DLH and assisted Cardinal in making this undertaking.

40. In contravention of the Non-Circumvention Agreement, Citation failed to notify

Altius in writing that Cardinal and Fortress intended to use Altius’s confidential information in a

manner that would violate the terms of the Non-Circumvention Agreement.

41. Shortly after Cardinal and Fortress submitted their letter of intent for the purchase

of the Dallas Property directly to DLH, DLH filed a motion with the bankruptcy court seeking

expedited approval of the sale of the Dallas Property to Cardinal and Fortress, circumventing

Altius.

42. DLH’s expedited motion, filed after Cardinal and Fortress submitted a letter of

intent directly to DLH for the purchase of the Dallas Property destroyed Greenfield’s deal with

DLH.

43. Unbeknownst to Altius, Cardinal was a non existent entity at the time that it

submitted the March 2, 2011 letter of intent and participated in the March 4, 2011 conference

call.

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44. Instead of listing Cardinal as a purchaser of the Dallas Property, the Purchase and

Sale Agreement entered into between DLH, Cardinal and Fortress (“DLH Longo Agreement”)

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listed the buyers of the property as Fortress Credit Corp. and Longo Real Estate Services, Inc.

d/b/a Cardinal Industrial.

45. In material breach of the Non-Circumvention Agreement, Citation has or will be

paid a commission from the sales proceeds of Cardinal and Fortress’s purchase of the Dallas

Property from DLH.

46. As a result of Cardinal and Fortress’s purchase of the Dallas Property, Altius has

reimbursed $60,000 to Greenfield because of the failed purchase of the Property.

47. The Non-Circumvention Agreement provides that each of the parties thereto

“irrevocably submits itself to the jurisdiction ofUtah state of federal courts sitting in the State of

Utah.”

FIRST CAUSE OF ACTION

(Breach of Contract Citation)

48. Altius realleges and incorporates by reference each and every allegation contained

in paragraphs 1 through 47 of this Complaint, as if fully set forth herein.

49. The Non-Circumvention Agreement is a valid and enforceable agreement under

Utah law.

50. Citation has breached the Non-Circumvention Agreement by disclosing Altius’s

confidential information to Cardinal and Fortress for the purpose ofcircumventing Altius in the

sale of the Dallas Property and by assisting Cardinal and Fortress in using Altius’s confidential

information in furtherance of their direct offer made to DLH to purchase the Dallas Property.

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51. Despite its knowledge that Cardinal and Fortress intended to contact DLH directly

and make an offer ofpurchase concerning the Dallas Property, Citation did not give Altius

written notice that Cardinal and Fortress intended to use Altius’s confidential information in a

manner that would violate the terms of the Non-Circumvention Agreement.

52. Citation’s disclosure ofAltius’s confidential information to Cardinal and Fortress

for the purpose of circumventing Altius in the sale of the Property constitutes a material breach

of the Non-Circumvention Agreement.

53. Citation’s failure to give written notice to Altius of Cardinal and Fortress’s

intention to make an offer ofpurchase for the Dallas Property directly to DLH constitutes a

material breach of the Non-Circumvention Agreement.

54. Altius has performed all of its obligations under the Non-Circumvention

Agreement in a timely manner.

55. As a result of Citation’s material breaches of the Non-Circumvention Agreement,

Altius has been damaged in an amount in excess of $1,210,000, as set forth more fully below.

WHEREFORE, Altius seeks damages against Citation as are more fully set forth in its

Prayer for Relief.

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SECOND CAUSE OF ACTION

(Breach of Duty of Good Faith and Fair Dealing Citation)

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57. An implied covenant of good faith and fair dealing exists in every contract,

including the Non-Circumvention Agreement, that essentially forbids arbitrary, unfair acts by

one party that disadvantages the other.

58. The implied covenant of good faith and fair dealing under the Non-Circumvention

Agreement required Citation to conduct its affairs in a manner that were consistent with the

intent and purpose of the Non-Circumvention Agreement.

59. Citation has breached the implied covenant of good faith and fair dealing by

engaging in the conduct described herein.

60. As a direct and proximate cause of Citation’s breach of the Non-Circumvention

Agreement, Altius has suffered, and continues to suffer, foreseeable damages in an amount in

excess of $1,210,000, all to be proven at the trial of this matter.

61. Altius has been compelled to retain legal counsel to prosecute this action and has

been further damaged thereby.

WHEREFORE, Altius seeks damages against Citation as are more fully set forth in its

Prayer for Relief.

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THIRD CAUSE OF ACTION

(Breach of Contract Cardinal and Fortress)

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63. Upon information and belief, Cardinal and Fortress enjoyed a principal-agent

relationship with Citation, wherein Citation was tasked with finding investment opportunities for

Cardinal and Fortress.

64. Citation’s execution of the Non-Circumvention Agreement was made within the

scope of its authority as Cardinal and Fortress’s agent.

65. Citation’s execution of the Non-Circumvention Agreement, together with

Cardinal and Fortress’s knowledge and awareness of the existence and terms thereof, bound

Cardinal and Fortress to the terms contained therein.

66. The Non-Circumvention Agreement is a valid and enforceable agreement under

Utah law.

67. Cardinal and Fortress have breached the Agreement by attempting to contract

directly with DLH for the purchase of the Dallas Property, thus circumventing Altius.

68. Cardinal and Fortress’s attempt to circumvent Altius in the sale of the Dallas

Property constitutes a material breach of the Non-Circumvention Agreement.

69. Altius has performed all of its obligations under the Non-Circumvention

Agreement in a timely manner.

70. As a result of Cardinal and Fortress’s material breach of the Non-Circumvention

Agreement, Altius has been damaged in an amount in excess of $1,210,000, as set forth more

fully below.

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forth in its Prayer for Relief.



72. An implied covenant of good faith and fair dealing exists in every contract,

including the Non-Circumvention Agreement, that essentially forbids arbitrary, unfair acts by

one party that disadvantages the other.

73. The implied covenant of good faith and fair dealing under the Non-Circumvention

Agreement required Cardinal and Fortress to conduct their affairs in a manner that were

consistent with the intent and purpose of the Non-Circumvention Agreement.

74. Cardinal and Fortress have breached the implied covenant of good faith and fair

dealing by engaging in the conduct described herein.

75. As a direct and proximate cause of Cardinal and Fortress’s breach of the Non-

Circumvention Agreement, Altius has suffered, and continues to suffer, foreseeable damages in

an amount in excess of $1,210,000, all to be proven at the trial of this matter.

76. Altius has been compelled to retain legal counsel to prosecute this action and has

been further damaged thereby.

WHEREFORE, Altius seeks damages against Cardinal and Fortress as are more fully set

forth in its Prayer for Relief.

557932.1


WHEREFORE, Altius seeks damages against Cardinal and Fortress as are more fully set

FOURTH CAUSE OF ACTION

(Breach ofDuty of Good Faith and Fair Dealing Cardinal and Fortress)

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FIFTH CAUSE OF ACTION

(Intentional Interference with Existing Economic Relations All Defendants Except Citation)Non-Circumvention Agreement



78. Prior to the time that Cardinal and Fortress submitted their letter of intent directly

to DLH for the purchase of the Dallas Property and prior to the execution of the DLH Longo

Agreement, Cardinal, Longo and Fortress were aware of Citation’s contractual obligations to

Altius arising out of the Non-Circumvention Agreement, including Citation’s obligation to not

circumvent Altius in the sale of the Dallas Property.

79. Cardinal, Longo and Fortress intentionally interfered with Altius’s existing

economic relations and contract with Citation, by using confidential information which Cardinal,

Longo and Fortress knew to have been obtained by Citation pursuant to the Non-Circumvent

Agreement, to circumvent Altius in Cardinal, Longo and Fortress’s attempt to purchase the

Dallas Property directly, by entering into the DLH Longo Agreement and by paying Citation to

act as their agent in making an offer ofpurchase for the Dallas Property directly to DLH.

80. Cardinal, Longo and Fortress’s intentional interference with Altius’s existing

economic relations was made by improper means in that Cardinal, Longo and Fortress used

confidential information to make their purchase offer directly to DLH while knowing that the

confidential information was not to be used to circumvent Altius and that Cardinal, Longo and

Fortress’s use of the confidential information violated the terms of the Non-Circumvention

Agreement.

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81. Cardinal, Longo and Fortress’s intentional interference made by improper means

caused Citation to breach its obligations under the Non-Circumvention Agreement.

82. By improperly using Altius’s confidential information to make a competing bid to

DLH, Cardinal, Longo and Fortress have improperly deprived Altius of the commissions that it

would have made had the interference not occurred.

83. As a direct and proximate cause of Cardinal, Longo and Fortress’s intentional

interference with Altius’s economic relations made by improper means, Altius has suffered

damages and has been injured in an amount in excess of $1,210,000, all to be proven at the trial

of this matter, and as set forth more fully below.

WHEREFORE, Altius seeks damages against Cardinal, Longo and Fortress as are more

fully set forth in its Prayer for Relief.

SIXTH CAUSE OF ACTION

(Intentional Interference with Existing Economic Relations All Defendants Except Citation)Greenfield Altius Agreement



85. Prior to the time that Cardinal and Fortress submitted their letter of intent directly

to DLH for the purchase of the Dallas Property and prior to the execution of the DLH Longo

Agreement, Cardinal, Longo and Fortress were aware ofAltius’s entitlement to 2% commission

of the total sales price of the Property arising out of the Greenfield Altius Agreement.

86. Cardinal, Longo and Fortress intentionally interfered with Altius’s existing

economic relations and contract with Greenfield, by using confidential information which

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Cardinal, Longo and Fortress knew to have been obtained by Citation pursuant to the Non-

Circumvent Agreement, to circumvent Altius in Cardinal, Longo and Fortress’s attempt to

purchase the Dallas Property directly, by entering into the DLH Longo Agreement and by

paying Citation to act as their agent in making an offer ofpurchase for the Dallas Property

directly to DLH.

87. Cardinal, Longo and Fortress’s intentional interference with Altius’s existing

economic relations was made by improper means in that Cardinal, Longo and Fortress used

confidential information to make their purchase offer directly to DLH while knowing that the

confidential information was not to be used to circumvent Altius and that Cardinal, Longo and

Fortress’s use of the confidential information violated the terms of the Non-Circumvention

Agreement.

88. Cardinal, Longo and Fortress’s intentional interference made by improper means

destroyed Altius’s ability to receive its commission for the sale of the Property pursuant to the

Greenfield Altius Agreement.


DLH, Cardinal, Longo and Fortress have improperly deprived Altius of the commissions that it

would have made had the interference not occurred.

90. As a direct and proximate cause of Cardinal, Longo and Fortress’s intentional

interference with Altius’s economic relations made by improper means, Altius has suffered

damages and has been injured in an amount in excess of $1,210,000, all to be proven at the trial

of this matter, and as set forth more fully below.

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fully set forth in its Prayer for Relief.



92. At all times relevant to the allegations contained in Altius’s Complaint, Cardinal

was a non existent entity.

93. Inasmuch as Cardinal was not an organized legal entity, Longo, Hicker and

Wenrich are vicariously liable for Cardinal’s wrongful acts. Based upon information and belief,

each of these defendants knew that Cardinal was unorganized and agreed together to use

Cardinal for improper purposes including to mislead and divert Altius as to the true status and

nature of the March 2, 2011 letter of intent.

94. Cardinal, Longo, Hicker and Wenrich had an implied agreement and common

purpose to carry out these improper acts in Cardinal’s name.

95. Cardinal, Longo, Hicker and Wenrich had a common pecuniary interest in

carrying out their plan to circumvent Altius from the sale of the Dallas Property while using

Altius’s confidential information in direct contravention of the Non-Circumvent Agreement.

96. Cardinal, Longo, Hicker and Wenrich had equal control and right to direct the

direction of the enterprise.

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WHEREFORE, Altius seeks damages against Cardinal, Longo and Fortress as are more

SEVENTH CAUSE OF ACTION

(Joint Enterprise Cardinal, Longo, Hicker and Wenrich)

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97. As a result of the joint enterprise existing between Cardinal, Longo, Hicker and

Wenrich, these defendants are liable for all wrongful conduct carried out by Cardinal, including

the claims asserted in the Third Sixth and Eighth and Ninth Causes ofAction alleged herein.

98. As a direct and proximate cause of the actions undertaken by the joint enterprise

of Cardinal, Longo, Hicker and Wenrich, Altius has suffered damages and has been injured in an

amount in excess of $1,210,000, all to be proven at the trial of this matter, and as set forth more

fully below.

WHEREFORE, Altius seeks damages against Cardinal, Longo, Hicker and Wenrich as

are more fully set forth in its Prayer for Relief.



100. Cardinal, Longo, Hicker, Wenrich and Fortress combined to accomplish the

objective of using Altius’s confidential information for the purpose ofcircumventing Altius in

the sale of the Dallas Property. In the March 4, 2011 conference call, after conceding that they

would not have received information of the availability of the Dallas Property without use of

Altius’s confidential information, Cardinal, Hicker, Wenrich and Fortress informed Altius that

they intended on making a direct offer to DLH for the sale of the Dallas Property.

101. There was a meeting of the minds between Cardinal, Longo, Hicker, Wenrich and

Fortress to accomplish the object of their conspiracy, as evidenced by their offer to purchase the

557932.1


EIGHTH CAUSE OF ACTION

(Civil Conspiracy Cardinal, Longo, Hicker, Wenrich and Fortress)

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Dallas Property directly from DLH using Altius’s confidential information and in direct

contravention ofAltius’s entitlement to receive commission for the sale of the Dallas Property,

and by the execution of the DLH Longo Agreement.

102. Cardinal, Longo, Hicker, Wenrich and Fortress accomplished their common

objective of circumventing Altius in the purchase of the Dallas Property through the commission

of intentional torts, by tortiously and intentionally interfering with Altius’s economic relations

and prospective economic advantage with Citation and Greenfield.


DLH and by entering into the DLH Longo Agreement, Cardinal, Longo, Hicker, Wenrich and

Fortress have improperly deprived Altius of the commissions that it would have made had the

interference not occurred.

104. As a direct and proximate cause of the actions undertaken by Cardinal, Longo,

Hicker, Wenrich and Fortress, Altius has suffered damages and has been injured in an amount in

excess of $1,210,000, all to be proven at the trial of this matter.

105. The improper objective of the conspiracy existing between Cardinal, Longo,

Hicker, Wenrich and Fortress was expressly aimed at Altius, a Utah limited liability company,

and therefore at Utah. At all times relevant, defendants knew that Altius was a Utah entity.

106. The intentional torts committed by Cardinal, Longo, Hicker, Wenrich and Fortress

caused harm to Altius, the brunt ofwhich was felt by Altius and was known by Cardinal, Longo,

Hicker, Wenrich and Fortress, to likely be suffered in Utah.

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107. Included in the acts intended by Cardinal, Longo, Hicker, Wenrich and Fortress to

cause harm to Altius in Utah and evidencing these defendants’ awareness that Altius would

likely suffer harm in Utah, these defendants knowingly caused emails to be sent and forwarded

to Altius in Utah, and knowingly participated in a conference call with Altius in Utah concerning

the sale of the Property.

108. By entering into active communications with Altius concerning the sale of the

Property, these Defendants conducted business through their email and telephonic

communications and purposefully availed themselves of the benefits ofconducting business in

Utah.

109. Moreover, the communications exchanged between these defendants and Altius

formed a critical part of these defendants’ decision to circumvent Altius in the purchase of the

Dallas Property. The nature and importance of these communications to the purpose of the

conspiracy are such that these defendants purposefully availed themselves of the ofbenefits of

Utah law.

WHEREFORE, Altius seeks damages against Cardinal, Longo, Hicker, Wenrich and

Fortress as are more fully set forth in its Prayer for Relief.


557932.1

NINTH CLAIM FOR RELIEF

(Attorneys’ Fees All Defendants)


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111. The Non-Circumvention Agreement provides that the prevailing party in “an

action to enforce or interpret the terms of th[e] Agreement shall be entitled to reasonable

attorney’s fees.”

112. Pursuant to the Non-Circumvention Agreement, Altius is entitled to an award of

its attorneys’ fees incurred in bringing and prosecuting this action.

WHEREFORE, Altius seeks damages against Defendants as are more fully set forth in its

Prayer for Relief.

DEMAND FOR JURY

Pursuant to Rule 38(b) of the FEDERAL RULES OF CIVIL PROCEDURE, Altius hereby

demands a trial by jury on all issues in this matter.

PRAYER FOR RELIEF

WHEREFORE, PlaintiffAltius demands judgment in its favor and against Defendants as

follows:

1. That, pursuant to the First Cause ofAction, this Court enter judgment in favor of

Altius and against Citation, for breach of contract in an amount to be determined at trial, but not

less than $1,210,000, exclusive of interest and costs, together with all costs incurred in bringing

this action, plus reasonable attorneys’ fees, together with interest in the entire amount from the

date ofjudgment until paid.

2. That, pursuant to the Second Cause ofAction, this Court enter judgment in favor

ofAltius and against Citation, for breach of the duty of good faith and fair dealing in an amount

to be determined at trial, but not less than $1,210,000, exclusive of interest and costs, together

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with all costs incurred in bringing this action, plus reasonable attorneys’ fees, together with

interest in the entire amount from the date ofjudgment until paid.

3. That, pursuant to the Third Cause ofAction, this Court enter judgment in favor of

Altius and against Cardinal and Fortress, for breach of contract in an amount to be determined at

trial, but not less than $1,210,000, exclusive of interest and costs, together with all costs incurred

in bringing this action, plus reasonable attorneys’ fees, together with interest in the entire amount

from the date ofjudgment until paid.

4. That, pursuant to the Fourth Cause ofAction, this Court enter judgment in favor

ofAltius and against Cardinal and Fortress, for breach of the duty of good faith and fair dealing

in an amount to be determined at trial, but not less than $1,210,000, exclusive of interest and

costs, together with all costs incurred in bringing this action, plus reasonable attorneys’ fees,

together with interest in the entire amount from the date ofjudgment until paid.

5. That, pursuant to the Fifth Cause of Action, this Court enter judgment in favor

ofAltius and against Cardinal, Longo, Hicker, Wenrich and Fortress, for intentional interference

with economic and contractual relations in an amount to be determined at trial, but not less than

$1,210,000, exclusive of interest and costs, together with all costs incurred in bringing this

action, plus reasonable attorneys’ fees, together with interest in the entire amount from the date

ofjudgment until paid.

6. That, pursuant to the Sixth Cause ofAction, this Court enter judgment in favor

ofAltius and against Cardinal, Longo, Hicker, Wenrich and Fortress, for intentional interference

with economic and contractual relations in an amount to be determined at trial, but not less then

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$1,210,000, exclusive of interest and costs, together with all costs incurred in bringing this

action, plus reasonable attorneys’ fees, together with interest in the entire amount from the date

ofjudgment until paid.

7. That, pursuant to the Seventh Cause ofAction, this Court enter judgment in favor

ofAltius and against Cardinal, Longo, Hicker and Wenrich, for joint enterprise liability for all

actions undertaken by Cardinal as alleged herein in an amount to be determined at trial, but not

less than $1,210,000, exclusive of interest and costs, together with all costs incurred in bringing

this action, plus reasonable attorneys’ fees, together with interest in the entire amount from the

date ofjudgment until paid.

8. That, pursuant to the Eighth Cause ofAction, this Court enter judgment in favor

ofAltius and against Cardinal, Longo, Hicker, Wenrich and Fortress, for civil conspiracy in an

amount to be determined at trial, but not less than $1,210,000, exclusive of interest and costs,

together with all costs incurred in bringing this action, plus reasonable attorneys’ fees, together

with interest in the entire amount from the date ofjudgment until paid.

9. That, pursuant to the Ninth Cause ofAction, this Court enter judgment in favor

ofAltius and against all Defendants in an amount to be determined at trial representing Altius’s

attorneys’ fees and costs incurred in bringing and prosecuting this action, together with interest

on the entire amount from the date ofjudgment until paid.

557932.1


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557932.1


DATED this 25th day ofMarch, 2011.

/s/ Benjamin P. HarmonCASS C. BUTLERBENJAMIN P. HARMONCALLISTER NEBEKER & McCULLOUGH

Attorneysfor PlaintiffAltius Capital Markets, LLC

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altrius complaint

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