STATE OF NORTH CAROLINA
`
`COUNTY OF BRUNSWICK
`
`IN THE GENERAL COURT OF JUSTICE
` SUPERIOR COURT DIVISION
`25-CVS-____________
`
`JEFFREY MILLIKEN and SHALLOTTE
`FEEDING FRENZY, LLC,
`
` VERIFIED COMPLAINT AND
` MOTION FOR TEMPORARY
` RESTRAINING ORDER AND
` PRELIMINARY INJUNCTION
`
`Plaintiff,
`
`vs.
`
`
`
`
`
`
`
`
`
`RICAM COMPANIES, INC., d/b/a
`RELIANCE CONTRACTING,
`
`
`
`
`
`
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Defendant.
`____________________________________)
`
`STATE OF NORTH CAROLINA
`
`COUNTY OF BRUNSWICK
`
`IN THE GENERAL COURT OF JUSTICE
` SUPERIOR COURT DIVISION
`24-SP-363
`
`APPLICATION FOR TEMPORARY
`RESTRAINING ORDER AND
` PRELIMINARY INJUNCTION
`PURSUANT TO N.C.G.S. § 45-21.34
`
`Grantor,
`
`to Carmela Mastrianni,
`
`
`
`
`
`
`
`IN THE MATTER OF FORECLOSURE OF )
`THE DEED OF TRUST EXECUTED BY
`)
`SHALLOTTE FEEDING FRENZY, LLC, )
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`)
`See substitution of Trustee which
`)
`Substitutes Robbie B. Parker as Substitute
`)
`Trustee in the place and stead of
`Original Trustee, as recorded in Book 5248, )
`Page 1291 of the Brunswick County
`)
`Public Registry,
`)
`____________________________________)
`
`Original Trustee,
`
`As recorded in Book 5204, Page 1037 of
`the Brunswick County Public Registry,
`
`{00915525-1 }
`
`Electronically Filed Date: 2/16/2025 10:24 PM Brunswick Superior Court County Clerk of Superior Court
`
`25CV001408-090
`
`

`

`Plaintiffs/Movants Shallotte Feeding Frenzy, LLC (“Shallotte Feeding Frenzy”) and Jeff
`Milliken (“Milliken”), complaining of the Defendant and moving for a Temporary Restraining
`Order and Preliminary pursuant to N.C. Gen. Stat. § 45-21.34 and Rule 65 of the North Carolina
`Rules of Civil Procedure, allege and say as follows:
`
`PARTIES AND JURISDICTION
`
`Plaintiff Shallotte Feeding Frenzy is a North Carolina limited liability company
`1.
`with a place of business in Brunswick County, North Carolina.
`
`Plaintiff Jeffrey Milliken (“Milliken”) is a resident of Brunswick County, North
`2.
`Carolina, and a memberand managerof Jack Mackerels and MB Feeding Frenzy.
`
`Defendant Ricam Companies, Inc., d/b/a Reliance Contracting (“Ricam’’) is, upon
`3.
`information and belief, a South Carolina corporation with a place of business in York County,
`South Carolina, which conducts business in Horry County, South Carolina.
`
`the record owner of certain real property in
`Shallotte Feeding Frenzy is
`4.
`Brunswick County, North Carolina, with a street address of 4462 Main Street, Shallotte, North
`Carolina, more particularly described as follows, together with and including all buildings, all
`fixtures, and all
`improvements now or hereafter existing thereon,
`the heriditaments and
`appurtenancesandall other rights thereunto belonging or in anywise appertaining in the above-
`described property (the “Property”), and has an interest in the Property and therefore standing to
`seek an injunction under N.C.G.S. §§ 1A-1, Rule 65 and 45-21.34.
`
`Jeffrey Milliken executed the promissory note that is purportedly secured by the
`5.
`DeedofTrust relating to the Property (the ““Note”’).
`
`A lawsuit arising out of and relating to the same transaction or series of
`6.
`transactions that involved the execution and delivery of the Note and the Deed of Trust has been
`filed in the Court of Common Pleas for Horry County, South Carolina, naming Ricam
`Companies, Inc., d/b/a Reliance Contracting, the purported holder of the Note, as a defendant
`and asserting claims for relief involving breach of contract, fraud, fraud in the inducement,
`negligent misrepresentation, unfair and deceptive trade practices and other claims for relief as
`more particularly stated therein (the “SC Lawsuit”). A copy of the SC Lawsuit is attached hereto
`as Exhibit A and incorporated herein by reference asif fully set out.
`
`As described in the SC Lawsuit, the Note and the Deed of Trust were executed
`7.
`and delivered to Ricam in order to secure certain future work to be performed by Ricam at a
`project located in Horry County, South Carolina, and pursuant to a contract under which other
`entities in which Jeffrey Milliken and others held a membership interest were involved. As part
`of the series of events which resulted in the delivery of the Note and Deed of Trust, Ricam
`promised that it would return to work and complete certain work at the project and that it would
`deliver certain building materials which it represented it had previously purchased and wasin
`possession or constructive possession of relating to the project and the value of which was
`included within the amountset out in the Note.
`
`£00915525-1 }
`
`

`

`Although Ricam initially returned to the project and performed work upon receipt
`8.
`of the initial payment under the Note, prior to the due date of the second payment due under the
`Note Ricam abandoned the Project, refused to work, refused to deliver the materials identified
`and described, and otherwise failed and refused to deliver the consideration necessary to be
`entitled to additional payments under the Note.
`
`9.
`The purpose of the SC Lawsuit is to determine the amount that is actually due and
`owing between the persons and entities involved in this series of transactions and to determine
`what amount of damages the Plaintiffs are entitled to recover from Ricam.
`
`Until the SC Lawsuit is litigated, the amount due and owing to Ricam (if any)
`10.
`cannot be ascertained.
`
`Further, until the SC Lawsuit is litigated, the amount which Ricam may owe to
`11.
`other related parties cannot be ascertained.
`
`The Foreclosure should be enjoined until such time as the legal defense raised by
`12.
`the movants hereto relating to the failure of consideration can be determined.
`
`The Foreclosure should also be enjoined until such time as the equitable matters
`13.
`raised by the movants hereto relating to the amount due and owing under the Note (if any),
`offsets and set-off, recoupment, and other determinations raised here and in the SC Lawsuit can
`be finally determined.
`
`If the Foreclosure is allowed to proceed, Milliken and Shallotte Feeding Frenzy
`14.
`will suffer irreparable harm because the Property, which is specific, unique real property on
`which Shallotte Feeding Frenzy is currently operating a restaurant business, will be sold and
`alienated and Shallotte Feeding Frenzy will lose possession and control over the Property and the
`income and revenue derived from its business operations at the Property for which it cannot be
`adequately compensated with legal damages.
`
`Conversely, the risk of delay to Ricam is low, because the Property is occupied,
`15.
`there are no other claims or liens against the Property of which Shallotte Feeding Frenzy is
`aware which are not subject to an agreement to resolve, and the Property is insured for
`its full value.
` The tax value of the Property is $1,254,490.00 and Shallotte Feeding
`Frenzy estimates that the fair market value of the Property is an amount not less than
`$1,800,000.00 such that the interests of Ricam (if any) in the Property are fully secured.
`
`In further support of said Motion, the moving parties submit the Affidavit of
`16.
`Jeffrey Milliken which is attached hereto as Exhibit B and incorporated herein by reference.
`
`{00915525-1 }
`
`

`

`FIRST CLAIM FOR RELIEF
`(Temporary Restraining Order/Preliminary Injunction)
`
`this Complaint
`foregoing paragraphs of
`The
`17.
`incorporated by referenceas if fully set forth herein.
`
`are hereby repleaded and
`
`In order to protect Plaintiffs’ business interests, it is necessary that Defendant be
`18.
`immediately enjoined from foreclosing, selling, transferring, or otherwise dispossessing Plaintiff
`from its ownership in the Premises.
`
`Pursuant to Rule 65 of the North Carolina Rules of Civil Procedure, Plaintiffs
`19,
`request an immediate hearing and issuance of a Temporary Restraining Order pending a hearing
`on a Preliminary Injunction on the grounds as outlined in the SC Lawsuit, which are fully
`incorporated herein.
`
`Such injunctive relief is necessary during the pendency of the SC Lawsuit and
`20.
`until there is a final judgment as to the merits of the SC Lawsuit to avoid financial damage to
`Plaintiffs.
`
`to Defendant due to the issuance of injunctive relief
`There is no detriment
`21.
`pursuantto this request as outlined above.
`
`Defendant, by its prior actions, has demonstrated a willingness to take action with
`22.
`regard to Plaintiffs’ business interests and interest in the Premises to the detriment of Plaintiffs,
`as laid out more specifically in the SC Lawsuit.
`
`to
`loss, or damage will result
`Immediate, continued, and irreparable injury,
`23.
`Plaintiffs business before the Defendant or its attorney can be heard on the equitable issues as
`outlined in detail above.
`
`The undersigned counsel, by signature to this pleading, hereby certifies and states
`24.
`that upon confirmation of electronic filing of this pleading, he will give notice to the opposing
`party of its request for a hearing on this matter, via email to attorney Carmela Mastrianni at
`cmastrianni@lawhssm.com.
`
`Pursuant to N.C.G.S. § 1A-1, Rule 65, a preliminary injunction may be issued
`25.
`upon certain enumerated conditions, which are satisfied by the assertions of the attached verified
`Complaint of the SC Lawsuit.
`
`Pursuant to N.C.G.S. § 1A-1, Rule 65, Plaintiffs requests an immediate hearing
`26.
`and issuance of a Temporary Restraining Order pending a hearing on a Preliminary Injunction on
`the groundsof the attached verified Complaint in the SC Lawsuit.
`
`Plaintiffs will suffer immediate and irreparable injury,
`27.
`Defendants are not enjoined from selling or transferring the Premises.
`
`loss, or damage if the
`
`{00915525-1 }
`
`

`

`Plaintiffs pray the Court for the entry of a Temporary Restraining Order and a
`28.
`Preliminary Injunction enjoining the Defendant from selling or transferring the Premises until
`such time as the South Carolina action has been concluded.
`
`SECOND CLAIM FOR RELIEF
`(Injunction Under § 45-21.34)
`
`Plaintiffs request, pursuant to N.C. Gen. Stat. § 45-21.34, for an order staying and
`29.
`enjoining the foreclosure proceeding (including any hearing and any sale which may be ordered
`or scheduled following any hearing) scheduled to be conducted on December 17, 2024 (the
`“Foreclosure”), noticed for hearing on or about October 30, 2024, by the substitute trustee,
`Robbie B. Parker, concerning a North Carolina Deed of Trust purportedly executed by Shallotte
`Feeding Frenzy dated July 8, 2024, recorded in Book 5204, Page 1037 of the Brunswick County
`Public Registry (the “Deed of Trust’) and concerningcertain real property in Brunswick County,
`North Carolina, with a street address of 4462 Main Street, Shallotte, North Carolina, more
`particularly described as follows, together with and including all buildings, all fixtures, and all
`improvements now or hereafter existing thereon, the heriditaments and appurtenances andall
`other rights thereunto belonging or in anywise appertaining in the above-described property (the
`“Property’”).
`
`BEING all ofthat 4.164 acre +/- Tract shown on a map for “Linwood and Irene Gray”
`prepared by Jan K. Dale dated November 24, 2015 and recorded in Map Book 94at Page
`27 in the Brunswick County Register of Deeds.
`
`Also being the same property conveyed to Linwood Gray and wife. Irene Gray described
`in Deed Book 750 at Page 271. Less and Except the property conveyed by Linwood Gray
`and wife, Irene Gray in Book 732 at 423 and Book 1152 at Page 248 in the Brunswick
`County Registry.
`
`Also being all of that parcel bearing the number 18200054 of the Brunswick County Tax
`Office.
`
`This tract or parcel of land ts described on Map of Survey plat recorded in Bock 141,
`Page 33 in the Office of the Register of Deeds. Brunswick County, North Carolina.
`
`400915525-1 }
`
`

`

`WHEREFORE, Jeffrey Milliken and Shallotte Feeding Frenzy, LLC, pray the Court as
`follows:
`
`I.
`
`That the Court enter an Order enjoining the Foreclosure, including:
`
`Enjoining the Clerk of Court from conducting the Foreclosure Hearing
`(a)
`currently scheduled for December 17, 2024;
`
`(b)
`
`Enjoining the Clerk of Court from ordering any foreclosure sale of the
`
`Property; and
`
`Enjoining the Clerk of Court from confirming any sale of the Property
`(c)
`pursuantto the Foreclosure;
`
`That the Court enter an Order enjoining any sale of the Property by use of any
`2.
`foreclosure procedure until the SC Lawsuit, in its entirety, is dismissed or reduced to judgment;
`
`3.
`
`That it have such other and further relief as the Court deems just and proper.
`
`This the 16" day of February 2025.
`
`OF COUNSEL:
`
`CAUDLE & SPEARS, P.A.
`121 West Trade Street, Suite 2600
`Charlotte, North Carolina 28202
`Telephone:
`704-377-1200
`Facsimile:
`704-338-5858
`Email: acorrell@caudlespears.com
`
`
`s/B. Alexander Correll, Jr
`
`B. Alexander Correll, Jr.
`NC State Bar No.: 38112
`Attorneyfor Plaintiffs
`
`400915525-1 }
`
`

`

`STATE OF NORTH CAROLINA
`
`COUNTY OF BRUNSWICK
`
`VERIFICATION
`
`Jeffrey Milliken, being first duly sworn, deposes and says that he is a Plaintiff in the
`foregoing action;
`that he has read the foregoing Verified Complaint and knows the contents
`thereof; that the allegations of the foregoing Verified Complaint arc true of his own knowledge,
`except as to those matters and things therein stated on information and belief, and as to those
`matters and things he believes the same to be trueThis the
`day of December, 2024.
`
`-X
`
`**•
`
`* * •
`
`» « >
`
`w X W * XX?
`
`>*
`
`c
`
`\\X
`
`Jeffrey Milliken
`
`^<4
`
`SWORN to and subscribed before me
`this the
`day of December, 2024.
`
`X
`
`XXXX X c
`
`*•
`
`»
`
`* 0-
`
`<-
`
`^Si-
`
`Notary Public
`
`Printed Name
`
`My Commission Expires:
`
`

`

`STATE OF NORTH CAROLINA
`
`COUNTY OF BRUNSWICK
`
`VERIFICATION
`
`Jeffrey Milliken, being first duly sworn, deposes and says that he is a Manager of
`Shallotte Feeding Frenzy, LLC; that as such he is duly authorized to make this verification; that
`he has read the foregoing Complaint and knowsthe contents thereof; that the sameare true based
`upon such information as is available to Shallotte Feeding Frenzy, LLC, except as to those matter
`and things therein stated upon information and belief, and as to those matters and things, he
`believes the same to be true based upon the information available to Shallotte Feeding Frenzy,
`LLC.
`
`This the | aday ofDecember, 2024.
`
` Jeffrey Milliken
`
`Manager
`
`Shallotte Feeding Frenzy, LLC
`
`SWORN to and subscribed before me
`this the
`day of December, 2024.
`
`
`
`Notary Public
`
`\
`
`v
`Printed Name
`faces
`My Commission Expires:
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`
`
`
`
`60P8097dDPCOCHASVO-SVA1dNOWWOD-AYYOH-WYSE:0L€L9907202-GSTldATIVOINOYLOATA
`
`
`
`
`
`
`
`
`
`IN THE COURT OF COMMONPLEAS
`FIFTEENTH JUDICIAL CIRCUIT
`2024-CP-26-
`
`SUMMONS
`
`) ) ) ) ) ) )
`
`) ) ) )
`
`STATE OF SOUTH CAROLINA
`
`COUNTY OF HORRY
`
`JACK MACKERELSOF MB, LLC,
`MYRTLE BEACH FEEDING
`FRENZY, LLC, and JEFFREY MILLIKEN,
`
`VS.
`
`Plaintiffs,
`
`RICAM COMPANIES, INC., d/b/a
`RELIANCE CONTRACTING,and
`MARK DONAHUE,
`
`Defendants.
`
`
`) )
`
`TO THE ABOVE-NAMED DEFENDANTS:
`
`YOU ARE HEREBY SUMMONEDand required to Answer the Complaintin this action,
`
`a copy of which is hereby served upon you, to file a copy of your Answer with the Clerk of
`
`Court, and to serve a copy of your Answer upon the Plaintiffs through their attorney, B.
`
`Alexander Correll, Jr., at his office at 121 W. Trade Street, Suite 2600, Charlotte, NC, 28202,
`
`within thirty days after the service hereof, exclusive of the day of such service; and if you fail to
`
`Answer the Complaint within the time aforesaid, judgment by default will be rendered against
`
`you for the relief demanded in the Complaint.
`
`This the 13" day of December, 2024.
`
`OF COUNSEL:
`
`CAUDLE & SPEARS, P.A.
`121 West Trade Street, Suite 2600
`Charlotte, North Carolina 28202
`Telephone:
`704-377-1200
`Facsimile:
`704-338-5858
`
`Email: acorrell@caudlespears.com
`
`
`s/B. Alexander Correll, Jr.
`B. AlexanderCorrell, Jr.
`SC State Bar No.: 79131
`Attorneyfor Plaintiffs
`
`400915030-4 } 1
`
`

`

`
`
`6OP809TdDPCOCHASVO-SVA1dNOWWOD-AYYOH-WYSE-0LEL9907202-GalaATIVOINOYLOATA
`
`
`
`
`
`EXHIBIT
`
`IN THE COURT OF COMMON PLEAS
`FIFTEENTH JUDICIAL CIRCUIT
`2024-CP-26-
`
`VERIFIED COMPLAINT
`
`(JURY TRIAL DEMANDED)
`
`STATE OF SOUTH CAROLINA
`
`COUNTY OF HORRY
`
`)
`JACK MACKERELSOF MB, LLC,
`)
`MYRTLE BEACH FEEDING
`FRENZY, LLC, and JEFFREY MILLIKEN,)
`)
`)
`
`Plaintiffs,
`
`) )
`
`)
`)
`
`) )
`
`VS.
`
`RICAM COMPANIES, INC., d/b/a
`RELIANCE CONTRACTING,and
`MARK DONAHUE,
`
`Defendants.
`
`
`) )
`
`Plaintiffs Jack Mackerels of MB, LLC, Myrtle Beach Feeding Frenzy, LLC, and Jeffrey
`
`Milliken complaining of the Defendants, allege and say as follows:
`
`PARTIES AND JURISDICTION
`
`1.
`
`Plaintiff Jack Mackerels of MB, LLC (“Jack Mackerels”),
`
`is a South Carolina
`
`limited liability company with a place of business in Horry County, South Carolina.
`
`2.
`
`Plaintiff Myrtle Beach Feeding Frenzy, LLC (“MB Feeding Frenzy”), is a South
`
`Carolina limited liability company with a place of business in Horry County, South Carolina.
`
`3.
`
`Plaintiff Jeffrey Milliken (“Milliken”) is a resident of Brunswick County, North
`
`Carolina, and a member and manager of Jack Mackerels and MB Feeding Frenzy.
`
`4.
`
`Defendant Ricam Companies, Inc., d/b/a Reliance Contracting (“Ricam’”) is, upon
`
`information and belief, a South Carolina corporation with a place of business in York County,
`
`South Carolina, which conducts business in Horry County, South Carolina.
`
`5.
`
`Defendant Mark Donahue is, upon information and belief, a citizen and resident
`
`of York County, South Carolina who conducts business in Horry County, South Carolina.
`
`£00915030-4 }2
`
`

`

`
`
`6OP809TdDPCOCHASVO-SVA1dNOWWOD-AYYOH-WYSE-0LEL9907202-GalaATIVOINOYLOATA
`
`
`
`
`
`Among other things, Donahueis the President of Ricam and is the supervisor for Ricam asits
`
`primary qualifying party for purposes of Ricam’s contractor license with the State of South
`
`Carolina.
`
`FIRST CLAIM FOR RELIEF
`(Breach of Contract-Construction Contract)
`
`6.
`
`The
`
`foregoing paragraphs of
`
`this Complaint
`
`are hereby repleaded and
`
`incorporated by referenceas if fully set forth herein.
`
`7.
`
`In or around June 2021, MB Feeding Frenzy entered into a lease with TWMB
`
`Associates, LLC (“TWNB Associates”), pursuant to which MB Feeding Frenzy wasto take
`
`possession and occupycertain real property located in Horry County, North Myrtle Beach, South
`
`Carolina (the “Premises”) for the purpose of opening and operating a restaurant (the “Lease”).
`
`Underthe terms of the Lease, MB Feeding Frenzy was to make certain monthly rental payments
`
`to TWMBAssociates and to otherwise perform as required under the terms of the Lease.
`
`8.
`
`Later, MB Feeding Frenzy entered into an agreement with Jack Mackerels,
`
`whereby Jack Mackerels was to open and operate a different restaurant concept on the Premises.
`
`9,
`
`On or around September 19, 2023, Jack Mackerels entered into a contract with
`
`Ricam (the “Contract”) whereby Ricam agreed, among other things, to perform certain upfit
`
`work(the “Work’’) as more particularly described in certain drawings and specifications prepared
`
`by D3 Studios (the “Project”) at the Premises. A copy of the Contract is attached hereto as
`
`Exhibit A and incorporated herein by reference.
`
`10.
`
`Under the terms of the Contract, the Work was to commence on September 19,
`
`2023, and wasto be substantially completed on a date not later than 160 calendar days from the
`
`date of commencement, or “February 29, 2023 [sic]”. Upon information and belief, the 2023
`
`£00915030-4 13
`
`

`

`ELECTRONICALLY FILED - 2024 Dec 13 10:35 AM - HORRY - COMMON PLEAS - CASE#2024CP2608409
`
`date was a mutual mistake and the parties intended that the proper deadline for substantial
`
`completion would be February 29, 2024.
`
`11.
`
`In exchange for the Work under the Contract, Jack Mackerels was to pay Ricam
`
`the total sum of $1,191,025.00. Those funds were to be paid based upon certain payment
`
`applications to be submitted by Ricam to Jack Mackerels over the course of construction. The
`
`payment applications were to be itemized and accompanied by data substantiating Ricam’s
`
`alleged right to payment and were to be billed in accordance with a schedule of values associated
`
`with the total value of all the Work under the Contract. With regard to materials, Jack Mackerels
`
`was only required to pay for materials and equipment delivered to and stored at the site.
`
`12.
`
`The payment applications to be submitted were to contain a sworn certification by
`
`Mark Donahue that to the best of his knowledge the Work for which payment was requested had
`
`been completed in accordance with the Contract.
`
`13.
`
`Ricam commenced the Work at the Premises and began to issue certain progress
`
`billings to Jack Mackerels.
`
`14.
`
`Ricam failed to utilize the payment application format required under the terms of
`
`the Contract in connection with its progress billings.
`
`15.
`
`Ricam further failed to provide Jack Mackerels with itemized payment
`
`applications supported by data substantiating the percentage of completion of the Work under the
`
`Contract during the initial phase.
`
`16.
`
`In or around February 2024, Ricam began threatening Jack Mackerels that it
`
`would stop work and demobilize from the Project if Jack Mackerels did not make payment in full
`
`of its progress billings despite having failed to provide the required substantiation or to provide
`
`the payment applications in the proper format as required by the Contract.
`
`{00915030-4 }4
`
`

`

`ELECTRONICALLY FILED - 2024 Dec 13 10:35 AM - HORRY - COMMON PLEAS - CASE#2024CP2608409
`
`17.
`
`On or around February 15, 2024, Ricam again threatened to stop work at the
`
`Project.
`
`18.
`
`On or around February 19, 2024, Ricam threatened to demobilize from the site on
`
`February 22, 2024, if payment was not made in full.
`
`19.
`
`On or around February 20, 2024, Ricam threatened that it would stop work at
`
`COB on February 27, 2024, until paid.
`
`20.
`
`On or around February 27, 2024, Ricam communicated that it had stopped work
`
`pending receipt of payment in certain amounts demanded by Ricam.
`
`21.
`
`On February 29, 2024, Jack Mackerels made payment to Ricam in the amount of
`
`$100,000.
`
`22.
`
`However, Ricam continued to demand additional payments despite having failed
`
`to provide the required substantiation or to provide the payment applications in the proper format
`
`as required by the Contract, and on March 12, 2024, threatened to terminate the Contract on
`
`March 19, 2024 if payment was not received and conditioning any further work on certain
`
`conditions, such as approval of change orders.
`
`23.
`
`On or around March 19, 2024, Ricam again threatened to terminate the Contract,
`
`however, the communication relating to this alleged termination was at all times conditional,
`
`stating that termination would occur if payment was not received and further stating that work
`
`would continue under certain other conditions.
`
`24.
`
`On March 19, 2024, Jack Mackerels made an additional $100,000 payment to
`
`Ricam. As of this date and payment, the amount allegedly due and owing to Ricam for work
`
`which Ricam contended it had actually performed at the Project (based upon Ricam’s
`
`calculation) was the amount of $246,438.24.
`
`
`
`{00915030-4 }5
`
`

`

`ELECTRONICALLY FILED - 2024 Dec 13 10:35 AM - HORRY - COMMON PLEAS - CASE#2024CP2608409
`
`25.
`
`On March 21 and March 22, Jack Mackerels and Ricam continued to
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`communicate regarding the Project and the costs of certain work Ricam alleged it had performed.
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`26.
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`On March 27, 2024, Ricam told Jack Mackerels that “if you wish to come to an
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`agreement on payment and finishing the job we need written (not verbal) communication on this
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`by Friday.”
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`27.
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`At no time did Ricam terminate the Contract. At all times, Ricam indicated that it
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`would return to the Premises and complete the Work under the Contract and deliver all materials,
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`provided an agreement could be reached on payments.
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`28.
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`On or around April 18, 2024, Ricam for the first time provided Jack Mackerels
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`with a payment application to attempt to substantiate its billings which included data from which
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`Jack Mackerels could potentially determine what percentage complete Ricam contended each of
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`its items on the schedules of values was (the “Schedule of Values”). A copy of the April 18,
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`2024, Schedule of Values is attached hereto as Exhibit B and incorporated herein by reference.
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`29.
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`Ricam at this time contended that many of its items on the schedule of values
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`were 100% complete, including numerous items that had clearly not been completed, such as
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`Field Supervision, Dumpsters, Per Diem and Mileage, Contingency, Casework, Fire Stopping,
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`Blueprints, Storage Container, Cast in Place Concrete, Sidewalks and Patios, Plaster, Gypsum
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`Board, and Metal Framing, Painting, Ceramic/Quarry Tile, Equipment Rental, Plumbing, HVAC,
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`Electrical, Lighting, Fire Protection, Roof Penetrations, Earthwork and Utility Services.
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`30.
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`In addition to the items billed at 100% complete, other items were billed as 95%
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`complete, including Handrails and Railings, or 90%, such as the Kitchen Epoxy Floor.
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`31.
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`In fact, the majority of these items had not even been commenced at this time,
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`much less completed and entitled to be billed at 100% of all value.
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`32.
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`Further, Ricam had billed at 100% value numerous items of materials that had not
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`been delivered to or incorporated into the Premises, including items identified on an email dated
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`July 5, 2024, to Jeffrey Milliken and George Lee from Mark Donahue, which included “all of the
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`kitchen and dining flooring and tile, doors frames and hardware, ceiling tile and grid, wall
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`finishes…solid surface, glass doors and windows, the outdoor canopy, all of the millwork
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`package, lighting and electrical components, mechanical and plumbing supplies. Paint, etc., etc.,
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`etc.” A copy of this email communication is attached hereto as Exhibit C and incorporated
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`herein by reference.
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`33.
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`34.
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`On May 6, 2024, Mark Donahue threatened to file a lien on the Premises.
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`Later, Ricam actually filed a lien on the Premises by recording a lien document
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`with the Horry County Register of Deeds.
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`35.
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`At all times relevant to this Complaint, Ricam and Mark Donahue promised and
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`agreed that upon receipt of certain monies that Ricam would return to the Project, deliver all
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`materials, and commence and complete the Work at the Premises.
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`36.
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`In or around early July 2024, Milliken, George Lee, a consultant to Milliken and
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`Jack Mackerels, along with Ryan Dukes, another member of Jack Mackerels, met with Mark
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`Donahue at the Blue Marlin restaurant in Columbia, South Carolina to discuss the Project, the
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`Contract, the Schedule of Values, and ultimately, a resolution to the outstanding lien issue that
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`would result in Ricam returning to the Premises and completing the Work under the Contract.
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`37.
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`At the meeting at the Blue Marlin, Mark Donahue acknowledged to Milliken,
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`George Lee, and Ryan Dukes, and through them, Jack Mackerels, that the amounts billed by
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`Ricam, as shown on the Schedule of Values, at 100% complete for which Ricam had demanded
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`payment and filed a lien were in excess of the amount of work actually completed.
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`38. Mark Donahue further acknowledged that Jack Mackerels would be entitled to
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`credits against future work at the Project due to the overbilling.
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`39.
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`At the meeting at the Blue Marlin, Mark Donahue and Ricam promised Milliken,
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`George Lee, and Ryan Dukes, and through them, Jack Mackerels, that upon reaching a resolution
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`of the payment issues and replacing the security provided by the lien with other security for
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`future payments, that Ricam would deliver the materials allegedly purchased and stored for
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`which it had billed to Jack Mackerels
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`40.
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`As a result of these promises and representations and in reliance on them,
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`Milliken entered into an arrangement with Ricam where Ricam and Mark Donahue agreed to
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`return to the Project and commence the work under the Contract and to release the lien on the
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`Premises by replacing the security otherwise afforded by the lien with a promissory note (the
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`“Promissory Note”) and a deed of trust on certain other real property located in Brunswick
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`County, North Carolina, owned by an entity in which Milliken has an interest, Shallotte Feeding
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`Frenzy, LLC (the “Deed of Trust”).
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`41.
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`On or around July 9, 2024, in accordance with that agreement and in reliance on
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`the promises and representations made by Mark Donahue and Ricam to return to the Project,
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`continue the work under the Contract, and deliver the materials, Milliken delivered the
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`Promissory Note and the Deed of Trust to Ricam, along with $100,000.00 via a wire transfer to
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`Ricam.
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`42.
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`Thereafter, Ricam immediately returned to the Premises and commenced work at
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`the Premises. Among other things, in the days following the delivery of the Promissory Note and
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`the Deed of Trust to Ricam, Ricam delivered paint and performed certain painting work.
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`43.
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`During this period, George Lee and Milliken continued to attempt to determine
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`what amounts that had been billed represented actual work in place and which represented billing
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`for work that had not been completed or materials which were not delivered to the Premises.
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`44.
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`After performing work under the Contract over a three-week period following
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`delivery of the Promissory Note and Deed of Trust, and before any additional payments were due
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`to Ricam under the terms of the Promissory Note, Ricam abandoned the Project and refused to
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`complete any additional work under the Contract.
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`45.
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`Additionally, with the exception of certain flooring materials, Ricam refused to
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`deliver any of the other materials identified for which it had billed and which it promised to
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`deliver upon receipt of the Promissory Note and Deed of Trust.
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`46.
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`Ricam further refused to identify the location where the materials which it had
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`allegedly purchased and stored were located.
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`47.
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`Ricam has now instituted a foreclosure proceeding in Brunswick County, North
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`Carolina, to foreclose on the real property owned by Shallotte Feeding Frenzy, LLC, despite
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`having failed and refused to return to the Project and perform its obligations and deliver the
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`materials which it billed for and promised to deliver under the agreement between Jack
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`Mackerels and Ricam.
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`48.
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`Ricam has further continued to refuse to identify the location of any of the
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`materials for which it contended it was entitled to receive payment and which made up the
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`consideration for the Promissory Note and Deed of Trust, despite demanding entitlement to
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`payment under the Promissory Note and representing via the foreclosure action that it is entitled
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`to recover under the Deed of Trust.
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`49.
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`The Contract was a valid and enforceable agreement between Ricam and Jack
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`Mackerels.
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`50.
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`Ricam breached the Contract in that:
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`(a)
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`It failed and refused to provide payment applications in the format
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`required by the Contract;
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`(b)
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`It failed and refused to provide payment applications substantiated by the
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`data required by the Contract;
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`(c)
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`It submitted payment applications which overstated or misstated the
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`percentage completion of the work under the Contract;
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`(d)
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`It failed and refused to commence and continue the Work under the
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`Contract based upon an alleged failure to make payment where payment was not due, or was not
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`due in the amounts demanded;
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`(e)
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`(f)
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`It failed and refused to commence and continue the Work;
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`It failed and refused to substantially complete the Work within the time
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`required by the Contract;
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`(g)
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`It billed for materials that were not purchased for the Project and which
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`were neither delivered to nor incorporated into the Premises;
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`(h)
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`In other ways to be proved at the trial of this matter.
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`51.
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`As a direct and proximate result of Ricam’s breach of the Contract, the Plaintiffs
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`been damaged in that they have incurred costs and expenses associated with the Lease, have been
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`deprived of the opportunity to commence business, have been billed for and paid amounts in
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`excess of what was due under the Contract, a