Sei sulla pagina 1di 20

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, CHANCERY DIVISION

STEPHEN G. POULOS, through CRAIG POULOS and TODD POULOS, his agents under his Power of Attorney,

V.

Plaintiff,

ANDREW DEAN POULOS and JON D. POULOS,

Defendants,

and

HOMER'S ICE CREAM, INC., an Illinois corporation, and POULOS ASSOCIATES, an Illinois general partnership

Nominal Defendants.

COMPLAINT

) 2015CH06686

) CALENDAR/ROOM

06

) TIME

00::00

)

) )

)

)

)

)

)

)

)

)

)

)

)

)

Pet

Dis

CorPoration

Case No.

-----------

Plaintiff Stephen G. Poulos ("Stephen"), through Craig Poulos and Todd Poulos, his

~

agents under his Power of Attorney, individually and derivatively on behalf of Homi:s Ice

:'

-u

,

,,.

Cream, Inc. ("Homer's) and Poulos Associates (the "Partnership"), for his Coni~l~nt~ai~

'

:

':~'.:':

0

Defendants Andrew Dean Poulos ("Dean") and Jon D. Poulos ("Jon"), states ~fol~w~:

I

Ul

NATURE OF THE ACTION

1. This is an action for breach of fiduciary duty, aiding and abetting, dissolution and ·

appointment of a liquidating trustee, and rescission relating to two family-owned businesses.

These claims arise out of Dean's continued mismanagement of Homer's and the Partnership

since he took over when Stephen could no longer run the businesses due to his advancing

Alzheimer's disease.

Under Dean's management, the businesses have deteriorated and lost

money, have not regularly paid debts when due, and owe considerable money to creditors.

Furthermore, beyond this gross mismanagement, Dean and Jon have diverted funds from the

family-owned ice cream business for their own personal benefit.

PARTIES

2. Plaintiff Stephen G. Poulos ("Stephen") is an Illinois citizen who resides in

Wilmette, Illinois.

Stephen is a one-third shareholder in Homer's and a one-third partner in the

Partnership.

Prior to approximately 201 0, when Stephen increasingly began to suffer from the

debilitating effects of Alzheimer's disease,

Stephen served as Homer's president and the

Partnership's managing partner.

Stephen's sons, Craig Poulos ("Craig") and Todd Poulos

("Todd"), have brought this action on Stephen's behalf pursuant to Stephen's December 13,

2009 Power of Attorney for Property and a December 18, 2009 delegation of powers.

3. Defendant Andrew Dean Poulos ("Dean") is an Illinois citizen who resides in

Glenview, Illinois.

Dean is a one-third shareholder in Homer's and a one-third partner in the

Partnership. Since approximately the end of2010, Dean has acted as Homer's president and the

Partnership's managing partner.

4. Defendant Jon D. Poulos ("Jon") is a Florida citizen who resides primarily in

Palm Beach Gardens, Florida. Jon is a one-third shareholder in Homer's and a one-third partner

in the Partnership. Although Jon, like his brothers, was once involved in managing Homer's, Jon

moved from Illinois to Florida more than twenty years ago to be a real estate broker.

On

information and belief, Jon is and has been experiencing extreme financial difficulties.

5.

Nominal

Defendant

Homer's

Ice

Cream,

Inc.

("Homer's")

is

an

Illinois

corporation with a principal place of business in Wilmette, Illinois.

Since approximately 1935,

the Poulos family has been operating Homer's to make and sell homemade gourmet ice cream.

Today, Homer's operates not only the original ice cream parlor, but also a restaurant, an ice

2

cream manufacturer, and a wholesale distribution center.

Stephen, Dean, and Jon are the only

shareholders, each owning one-third of Homer's shares.

6. Nominal Defendant Poulos Associates (the "Partnership") is an Illinois general

partnership with its principal place of business in Wilmette, Illinois.

Stephen, Dean, and Jon are

the sole partners of the Partnership, each owning one-third of the Partnership.

The Partnership

owns interests in property located in Illinois and in California.

7. The Partnership and Homer's are sometimes collectively referred to herein as the

"Business."

VENUE

8. Venue is proper in Cook County, as virtually all of the transactions at issue took

place in Cook County and all defendants except Jon reside in Cook County. 735 ILCS 5/2-101.

FACTUAL ALLEGATIONS COMMON TO ALL COUNTS

The Partnership's Substantial Real Estate Interests

9. Homer's conducts its business at 1237 Green Bay Road, Wilmette, Illinois (the

"Wilmette Property").

Title to the Wilmette Property is held in an Illinois land trust dated

September 9, 1942 and known as North Star Trust Company Trust Number C300406 (the "Land

Trust").

On information and belief, the Partnership owns 100% of the beneficial interest of the

Land Trust. As of2011, the Wilmette Property was appraised at approximately $1,695,000.

10. In 2001, a mortgage was recorded against the Wilmette Property as security for a

$747,800.99 promissory note to Harris Bank.

The mortgage was later modified in 2002 and

2006 to reflect modifications to the underlying promissory note with Harris Bank.

As of

February 28, 2006, the face value of the promissory note was $648,033.25.

A $200,000

mortgage with Northbrook Bank & Trust was also recorded against the property in 2009.

On

information and belief, the total mortgage on the Wilmette Property is approximately $400,000.

3

11.

On information and belief, the Partnership loaned the proceeds of the above-

referenced

promissory

notes

to

Homer's

to

fund

business-related

expenses.

On

further

information and belief, Homer's owes approximately $850,000 to the Partnership on that loan.

12.

There

is

no

written lease

Homer's use of the Wilmette Property.

between Homer's

and the

Partnership

governing

Rather than pay a commercially-reasonable rent, on

information and belief, Homer's pays the Partnership approximately $10,724 each month,

covering the monthly mortgage payment of$5,723.56, plus an additional rent of$5,000, which is

well below the fair market value rent for the Wilmette Property.

As a result, Dean and Jon are

not maximizing the profits that the Partnership should be realizing for the benefit of its partners,

including Stephen.

13. On further information and belief, Poulos Associates also owns an interest in a

"luxury vacation home" located in the Residence Club at PGA WEST in La Quinta, California

(the "California Condo").

On information and belief, although Dean uses the California Condo

exclusively for his personal benefit, the Partnership became the legal owner in order to obtain

financing that Dean was unable to get on his own.

On information and belief, the Partnership

pays the mortgage, fees, and property taxes associated with the California Condo.

Stephen Is Forced to Step Down as Homer's President when he Begins Experiencing Significant Cognitive Impairment

14. In 1935, Gus Poulos-the father of Stephen, Dean, and Jon Poulos-founded

"Homer's Homemade Gourmet Ice Cream" in Wilmette, Illinois.

Although Homer's began as a

small, two-table ice cream parlor, it grew to become an institution in Chicago's North Shore

neighborhood.

Homer's

has

received

numerous

accolades

from

regional

and

national

publications, including "Best in Chicago" by Chicago Magazine and "Top Ten in the Country"

4

by Bon Appetit. Today, in addition to operating the ice cream parlor, Homer's runs a restaurant

and manufactures and distributes wholesale quantities of its famous ice cream.

15. At different times, each of the Poulos brothers (Stephen, Dean, and Jon) has

worked for Homer's. Until approximately 2010, Stephen served as Homer's president.

16. In or about September 2010, Stephen was diagnosed with progressive cognitive

deterioration, which rendered him unable to understand the consequences of personal or financial

decisions.

Although Stephen retained good social skills, anyone speaking with him would

recognize that he was experiencing significant short-term memory loss and had great difficulty

finding the words to express his thoughts.

17. In light of their father's deteriorating medical condition, Craig and Todd met with

Dean and Jon to discuss their desire to take their father's place in managing the Business.

In

light of their nineteen years of experience as the founders and operators of successful medical

device companies with over 100 employees, as well as their past experience working for

Homer's, Craig and Todd believed that they could greatly increase the Business's future earning

potential.

However, instead of allowing Craig and Todd to come into the Business in Stephen's

place, Dean announced that he would manage the Business exclusively with his sons.

18. Sometime thereafter in 2010, Dean assumed the role of Homer's President.

Despite the Poulos brothers' equal ownership of the Business, Dean did not call a formal meeting

of the owners to determine who would follow in Stephen's footsteps. Rather, on information and

belief, Dean and Jon decided that Dean single-handedly would make all management decisions

for Homer's and the Partnership (without approval or input from Stephen or his agents).

Unbeknownst to Stephen's Family, Dean Induces Stephen to Contribute $50,000 to Homer's

19. In light of Stephen's diagnosis, on or about September 30, 2010, Craig and Todd

provided Dean and Jon (as well as Homer's attorney at the time) with a copy of Stephen's Power

5

of Attorney and requested that Dean and Jon include Craig and Todd in all future business and

financial matters related to Stephen.

writing and orally to Dean and Jon.

Craig and Todd thereafter reiterated that request both in

20. Nevertheless, on or about December 31, 2010, Dean visited Stephen at his home.

On information and belief, Dean told Stephen during that visit that Stephen was required to make

a $50,000 cash contribution to Homer's.

21. Stephen gave Dean a $50,000 check that was made out to Homer's and that was

drawn from the personal bank account Stephen shared with his wife.

correct copy of that personal check.

22.

At

the

time

Dean demanded that

Stephen make

a

Exhibit A is a true and

$50,000

contribution to

Homer's, Dean knew or should have known that Stephen's cognitive impairment had progressed

to a point where Stephen was not aware of the impact or consequences of his actions.

Dean Freezes Stephen and his Agents out ofthe Business

23. In or about June 2011, concerned with how their family would provide for

Stephen as his health continued to deteriorate and with how Dean was managing the Business,

Craig and Todd informed Dean that they wanted to review the Business's books and records so

they could gain a better understanding of Stephen's interests in the Business.

volunteered to bear the full cost of that examination.

Craig and Todd

24. Having received no response from Dean and knowing that the Business did not

compile its own electronic records, on or about June 18, 2011, Craig and Todd, acting on

Stephen's behalf pursuant to his Power of Attorney, sent a formal request to the Business's

certified public account, Michael J. Singer, to inspect the Business's books and records.

25. However, when Stephen's attorneys went to inspect the Business's books and

records on July 19, 2011, they were informed that Singer would not be in the office that day.

6

Afterwards, Singer notified Stephen's attorneys that, based on the advice of his counsel, he

would not make the Business's books and records available for inspection.

26. Due to their growing concern over the management of the Business and the lack

of information Stephen was being provided, Craig and Todd, acting as Stephen's agents, initiated

a lawsuit against Dean in May 2013.

27. It was not until after Craig and Todd filed that lawsuit that Dean finally provided

Craig and Todd (as Stephen's agents) with access to the Business's books and records in January

2014. Even then, Dean forced Stephen (through Craig and Todd) to incur the full costs of that

inspection.

28.

During the books and records inspection, Dean (through Singer) provided Stephen

and his agents with various accounting summaries, including financial

statements, general

ledgers, payroll journals, bank reconciliations, and cash distribution summaries. However, Dean

did not provide any of Homer's cash receipts, so Stephen and his agents were unable to reconcile

the cash receipts against the cash revenues in the accounting records.

With Stephen No Longer Involved in the Business's Day-to-Day Operations, Dean and Jon Use the Business as their Personal Piggybanks while Dean Grossly Mismanages the Business

29. Since at least 2011, if not earlier, Dean and Jon have treated Homer's bank

accounts as their own personal accounts, taking frequent and substantial "stockholder advances"

that, on information and belief, they neither intend nor have the ability to repay.

In particular,

between 2011 and February 2015, Dean and Jon have caused Homer's to make more than

$220,000 shareholder advances that remain unpaid.

30. On information and belief, the following are just some of the personal expenses

that Dean and Jon have charged to Homer's as "stockholder advances":

7

a. Cell phone service with AT&T.

In at least December 2013, Dean and Jon

caused Homer's to pay $74.30 to AT&T as a stockholder advance.

b. Membership dues and other costs for Glen Club-a Chicago-area golf

club.

For example, Dean and Jon caused Homer's to pay $3,500 to Glen Club in

December 2013 and, most recently, $4,200 to Glen Club in January 2015.

c. Frequent transfers to Jon made by wire transfer or Check, including at

least the following:

(i) $10,000 on or about December 9, 2013; (ii) $7,000 on or about

August 7, 2014; (iii) $5,000 on or about September 3, 3014; (iv) $5,000 on or about

September 16, 2014; (v) $5,000 on or about October 3, 2014; (vi) $5,000 on or about

October 14, 2014; (vii) $5,000 on or about November 1, 2014; (viii) $5,000 on or about

November 19, 2014; and (ix) $7,000 on or about December 12,2014.

31. At the same time, under Dean's management, Homer's realized a profit of only

$105,000 in 2013 and, not surprisingly, less than $30,000 in 2014.

2015 appears even grimmer,

as Homer's recorded losses in both January and February 2015.

32. Despite Homer's dire financial outlook, Dean has continuously caused Homer's

to pay him a substantial salary as an "officer," even giving himself a raise from $156,000 in 2013

to more than $185,000 in 2014.

salary from Homer's in 2015.

On information and belief, Dean is continuing to draw a similar

33. Additionally, as an ice cream parlor and restaurant, Homer's receives substantial

amounts of cash in its normal business operations. On information and belief, Dean has engaged

in a practice of skimming cash received from Homer's sale proceeds without accounting the

proceeds on Homer's books and records.

On further information and belief, Dean has used the

8

proceeds of this skimming to make periodic cash distributions to himself and to Jon and does not

record these cash distributions on the Business's books and records.

34.

As

described

above,

Dean

Homer's for at least the past several years.

and

Jon

have

been

benefitting

financially

from

At the same time, however, Dean and Jon have

caused Homer's and the Partnership to withhold any distributions or other financial benefits from

Stephen.

35. Furthermore, Dean has breached his fiduciary duties, Jon has aided and abetted

those breaches, and Dean and Jon have collectively engaged in shareholder oppression in at least

the following additional ways:

a. Dean does not devote his full time to managing the Business.

Even

though Dean is the sole person in charge of directing the Business's future and ensuring

that Homer's continues to be profitable, Dean does not devote his time to the Business.

Instead, on information and belief, Dean takes long vacations to California and, even

when he is in Illinois, rarely comes to the office before 10:00 a.m.

b. Dean and Jon allow Dean to retain control over the Business despite the

fact that he has admitted he has no growth plan for the Business and the current business

model is a dead end.

Dean has made no efforts to improve or maximize the Business

since taking over in 2010.

Additionally, although friends and customers have brought to

Dean and Jon's

attention that Homer's restaurant appears

dirty and

is

in need

of

substantial repairs and updating, Dean has shown no interest in taking these necessary

steps to improve these conditions.

c. Dean fails to keep accurate books and records.

On information and belief,

Dean does not utilize an electronic point of sale system that records Homer's cash

9

transactions.

Instead, Dean relies on paper receipts that are printed by the cash registers.

On information and belief, Dean does not provide the business's accountant with copies

of the cash receipts and no one is auditing the business's cash receipts.

By failing to

account for and audit Homer's cash proceeds, Dean is further contributing to cash

skimming that occurs at Homer's.

d. Dean withheld payments to Stephen even though they were reported on

Homer's books.

e. Dean caused Homer's to lose a $1

million business opportunity and

allowed another company to have access to and steal Homer's secret recipes.

On

information and belief, in or about 2013, Homer's secured a valuable wholesale account

with PF Chang's, Maggiano's, and a variety of other restaurants.

Because Homer's did

not have the infrastructure to make the necessary quantities of ice cream on site, Dean

outsourced the production to another company.

However, because Dean did not require

that company to enter into a written agreement with Homer's that would protect Homer's

proprietary recipes, the third party eventually cut Homer's out of the deal and started

selling Homer's ice cream directly to PF Chang's and other restaurants.

f. Dean has failed to make management changes necessary for the Business

to be profitable.

g. Dean has not accounted for and reported all income that was received and

all expenses that were paid.

h. Dean has not paid all of the Business's debts, including the property taxes

levied on the Wilmette Property, as they come due.

10

1.

Dean is not causing Homer's to pay a fair market or commercially

reasonable rent to the Partnership for Homer's use of the Wilmette Property.

J.

Dean

is causing the

Business to

pay the

mortgage,

fees,

and

costs

associated with the California Condo for which Dean solely benefits.

DEMAND FUTILITY

36. Stephen re-alleges the allegations contained in Paragraphs 1 through 35 as if

restated fully herein.

37. Stephen brings portions of this action as a derivative action under Section 7.80 of

the Illinois Business Corporation Act of 1983 (the "Corporation Act") and under Section 405 of

the Illinois Uniform Partnership Act of 1997 (the "Partnership Act").

38. Stephen did not make a pre-suit demand on Dean for the relief sought in this

Complaint (and such demand is excused) because Dean's actions, as described in Count I below,

raise a reasonable doubt as to whether (i) Dean is disinterested and independent and (ii) Dean's

actions were the product of the valid exercise of business judgment.

COUNT I (Action by Stephen, Individually and Derivatively on Behalf of Homer's and the Partnership, against Dean for Breach of Fiduciary Duty)

39. Stephen re-alleges the allegations contained in Paragraphs 1 through 38 as if

restated fully herein.

40. At all relevant times, as an officer and director of Homer's and the managing

partner of the Partnership, Dean has owed fiduciary duties to Homer's and to the Partnership,

including the duty to act with utmost loyalty and good faith in managing the Business.

41. Dean breached these fiduciary duties, as described above, by misappropriating

business assets to enhance his and Jon's personal interests at the expense of the interests of the

11

Business and its other owner, Stephen.

Additionally, as described above, Dean has breached his

fiduciary duties to Homer's and to the Partnership by engaging in gross mismanagement.

42. On information and belief, as a direct and proximate result of Dean's breaches of

fiduciary duty, Homer's and the Partnership have suffered substantial damages in an amount to

be proven at trial.

43. Any remedy at law for breach of fiduciary duty is insufficient because Dean has

engaged in cash skimming and diverting Business funds and has failed to account for and report

all monies received and paid by the Business.

Without an accounting of the Business, the Court

will be unable to determine the extent of the damages that Dean has caused to the Business

through his breaches of fiduciary duty.

WHEREFORE, Plaintiff Stephen G. Poulos, through Craig Poulos and Todd Poulos, his

agents under his Power of Attorney, individually and derivatively on behalf of Homer's Ice

Cream, Inc. and Poulos Associates, requests that the Court enter judgment in his favor and

against Defendant Andrew Dean Poulos, as follows:

a. Awarding compensatory damages in an amount to be determined at trial,

plus applicable interest and costs;

b. Awarding punitive damages in an amount to be determined at trial;

c. Ordering Defendant Andrew Dean Poulos to account for all dealings and

transactions involving Homer's Ice Cream, Inc. and Poulos Associates, including an

accounting of all cash transactions; and

d. Granting any other relief the Court deems just and proper.

12

COUNT II

(Action by Stephen, Individually and Derivatively on Behalf of Homer's and the Partnership, against Jon for Aiding and Abetting Breach of Fiduciary Duty)

44. Stephen re-alleges the allegations contained in Paragraphs 1 through 38 as if

restated fully herein.

45.

At

all

relevant

times,

Dean

owed

fiduciary

duties

to

Homer's

and

to

the

Partnership, including the duty of utmost good faith and undivided loyalty.

 

46.

Jon

knew

that

Dean

owed

these

fiduciary

duties

to

Homer's

and

to

the

Partnership.

47. Dean breached his fiduciary duties to Homer's and to the Partnership by engaging

in the conduct described above in Count I, which is incorporated herein by reference.

48. Jon possessed full knowledge of Dean's breaches of fiduciary duty to Homer's

and to the Partnership and knowingly participated in those breaches by, among other things,

taking money from the Business outside of the formal distribution channels, which Jon knew or

should have known was unlawfully diverted from the Business.

49. As a direct and proximate result of Dean's breaches of fiduciary duty, as set forth

above, and ofthe concerted actions of Dean and Jon, Homer's and the Partnership have suffered

substantial damages in an amount to be proven at trial.

WHEREFORE, Plaintiff Stephen G. Poulos, through Craig Poulos and Todd Poulos, his

agents under his Power of Attorney, individually and derivatively on behalf of Homer's Ice

Cream, Inc. and Poulos Associates, requests that the Court enter a judgment in his favor and

against Defendant Jon D. Poulos in an amount to be determined at trial, plus applicable interest

and costs, and for any other relief the Court deems just and proper.

13

COUNT III

(Action by Stephen, Individually and Derivatively on Behalf of Homer's, for Dissolution of Homer's and Appointment of a Liquidating Trustee)

50. Stephen re-alleges the allegations contained in Paragraphs 1 through 38 as if

restated fully herein.

51. Section

12.56 of the Corporations Act states that if a shareholder, such as

Stephen, of a corporation with no publically traded stock, such as Homer's, establishes that those

in control "have acted, are acting or will act in a manner that is illegal, oppressive or fraudulent

with respect to the petitioning shareholder" or "corporat[e]

assets are being misapplied or

wasted," a Court may order that the corporation be dissolved if it determines that no alternative

remedy is sufficient to resolve the matters in dispute.

52. As described in Counts I and II, which are incorporated herein by reference, two

of the three shareholders of Homer's are engaging in breaches of fiduciary duty (and, with

respect to Jon, aiding and abetting those breaches) and in shareholder oppression by placing their

own self-interests above those of Homer's and the third shareholder, Stephen, by diverting cash

profits from Homer's for their own financial gain.

Additionally, Dean has engaged in gross

mismanagement of Homer's, which has greatly decreased Homer's profitability and earning

potential.

53. Judicial dissolution is appropriate under the circumstances because, in light of this

misconduct, no alternative remedy would be sufficient to resolve the matters in dispute.

54. Additionally, good cause exists to appoint a liquidating trustee to wind up

Homer's business because Dean and Jon have demonstrated that they will not execute their

duties faithfully and in the best interests of Homer's by, without limitation, breaching and aiding

and abetting the breaches of the fiduciary duties ofloyalty and due care to Homer's.

14

55. As a result, the Court should now appoint a liquidating trustee to wind up

Homer's business pursuant to Section 12.60(e) ofthe Corporation Act.

WHEREFORE, Plaintiff Stephen G. Poulos, through Craig Poulos and Todd Poulos, his

agents under his Power of Attorney, individually and derivatively on behalf of Homer's Ice

Cream, Inc., requests that the Court enter judgment as follows:

a. Adjudging Homer's Ice Cream, Inc. dissolved;

b. Appointing an independent liquidating trustee to wind up the affairs of

Homer's Ice Cream, Inc.; and

c. Granting any other relief the Court deems just and proper.

COUNT IV (Action by Stephen, Individually and Derivatively on Behalf of the Partnership, for Dissolution of the Partnership and Appointment of a Liquidating Trustee)

56. Stephen re-alleges the allegations contained in Paragraphs 1 through 38 as if

restated fully herein.

57. Section 801(5)(ii) of the Partnership Act states that a partnership is dissolved and

its business must be wound up if, on application by a partner, a judicial determination is made

that "another partner has engaged in conduct relating to the partnership business which makes it

riot reasonably practicable to carry on the business in partnership with that partner."

58. As described in Counts I and II, which are incorporated herein by reference, two

of the three shareholders of Homer's are engaging in breaches of fiduciary duty (and, with

respect to Jon, aiding and abetting those breaches) and in shareholder oppression by placing their

own self-interests above those of Homer's and the third shareholder, Stephen, by diverting cash

profits from Homer's for their own financial gain.

Additionally, Dean has engaged in gross

mismanagement ofthe Business, which has greatly decreased the Partnership's profitability and

earning potential.

15

59. Judicial dissolution is appropriate under the circumstances because, in light of that

misconduct, it is not reasonably practicable for the Partnership to carry on its business with Dean

or Jon acting as partners.

60. Additionally, good cause exists to appoint a liquidating trustee to wind up the

Partnership because Dean and Jon have demonstrated that they will not execute their duties

faithfully and in the best interests of the Partnership by, without limitation, breaching and aiding

and abetting breaches of the fiduciary duties of loyalty and due care to the Partnership.

61. As a result, the Court should now appoint a liquidating trustee to wind up the

Partnership because there is good cause pursuant to Section 803(a) of the Partnership Act.

WHEREFORE, Plaintiff Stephen G. Poulos, through Craig Poulos and Todd Poulos, his

agents under his Power of Attorney, individually and derivatively on behalf of Homer's Ice

Cream, Inc., requests that the Court enter judgment as follows:

a. Adjudging Poulos Associates dissolved;

b. Appointing an independent liquidating trustee to wind up the affairs of

Poulos Associates; and

c. Granting any other relief the Court deems just and proper.

COUNTV (Action Brought by Stephen against Homer's for Rescission)

62. Stephen re-alleges the allegations contained in Paragraphs 1 through 35 as if

restated fully herein.

63. On or about December 31, 2010, Dean, acting as President of Homer's, induced

Stephen to provide Homer's with $50,000 via a personal check.

copy of that personal check.

16

Exhibit A is a true and correct

64. On information and belief, Dean represented that the $50,000 would be recorded

on Homer's financial statements as a loan by Stephen to Homer's.

On further information and

belief, Dean and Stephen did not discuss the terms on which Homer's would repay the $50,000

to Stephen.

65. At the time Dean induced Stephen to provide Homer's with $50,000, Dean held a

position of confidence and trust with Stephen.

Dean also knew at that time that Stephen was

suffering from the debilitating effects of Alzheimer's disease and was no longer capable of

handling his own financial affairs. Stated differently, Dean knew that Stephen lacked capacity to

enter into any loan arrangement with Homer's.

66. Dean abused his position of confidence and trust when he induced Stephen to

provide Homer's with $50,000 in December 2010.

67. Homer's has not repaid any amount ofthe $50,000 to Stephen.

68. Because the $50,000 was procured by undue influence and, additionally, because

Stephen lacked capacity to enter into a binding contract, rescission of all agreements relating to

the $50,000 are warranted and just.

WHEREFORE, Plaintiff Stephen G. Poulos, through Craig Poulos and Todd Poulos, his

agents under his Power of Attorney, requests that the Court enter judgment in his favor and

against Defendant Homer's Ice Cream, Inc., for rescission of any and all agreements relating to

the $50,000 Plaintiff provided to Defendant Homer's Ice Cream, Inc. and for any such further

relief the Court deems just.

17

Dated: April 22, 2015

Peter M. Spingola Shannon T. Knight

CHAPMAN SPINGOLA, LLP

77 West Wacker Drive, Suite 4800 Chicago, Illinois 60601 (312) 630-9202 (312) 630-9233 Finn ID No. 29411

STEPHEN POULOS, through CRAIG POULOS and TODD POULOS, his agents under his Power of Attorney

18

EXHIBIT A

STEPHEN G POULOS PRISCILLA M POULOS

8716 LAKE .r,VL

V>'iU,iETTE, lL

u0091

--- ---

--·.,_,,

,.,

,

,

,_~.~---~·-

:2-;~[U)/i ;~:

;:cl?~&

Harris Bal tk

N !~. >071 000?8<3<

31 ·t VV Monroe

Chicago IL 6060f3

-

-·-·-----·--

,

Media

M-

Posting Date

20'i0i231

CPCS Seq#

000002300413419

Account#

00000000000007161298

Amount

0005000000

Ck/Ser~ai #

0000000000067"1 8

Dep CPCS Seq # Dep Account Rff Routing ·r ran sit

007102566

Bank#

0029

TranCocic:

Exceptio11