ELECTRONICALLY FILED

11/20/2014 2:59 PM
01-CV-2014-904803.00
CIRCUIT COURT OF
JEFFERSON COUNTY, ALABAMA
ANNE-MARIE ADAMS, CLERK

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, ALABAMA

BIRMINGHAM DIVISION
Genesis USA Development, LLC,
Plaintiff,
v.

Samuel H. Frazier, individually, as

attorney for the Plaintiff, and doing
business as Mitchell-Frazier Farms
LLC and Mitchell-Frazier Farms
Family Limited Partnership and
Mitchell-Frazier
Farms
Limited
Partnership
and Mitchell-Frazier
Farms, LLC, an Alabama limited
liability company and Frazier Farms,
LLC, an Alabama limited liability
company; the fictitious parties A-P
who are those persons, firms, or
corporations whose names are
otherwise unknown to the Plaintiff but
will be added hereto by amendment as
soon as their names are ascertained,
and who are those persons, firms, or
corporations who participated in the
scheme to defraud the Plaintiff,
Defendants.
___________________________

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CIVIL ACTION NO.:

____________________
JURY TRIAL DEMANDED

COMPLAINT
COMES NOW the Plaintiff, Genesis USA Development, LLC, by and through its
undersigned attorney of record, and states as follows:

I.
PARTIES
1. The Plaintiff, Genesis USA Development, LLC, is a Delaware Limited
Liability Company with its principal office located in Nashville, Tennessee.
2. Defendant, Samuel H. Frazier (S. Fraizer), is an attorney who is a
member of the Alabama Bar Association, who practices law in Birmingham, Alabama,
and whose address in Birmingham, Alabama is Spain & Gillon, LLC, 2117 Second
Avenue North, The Zinszer Building, Birmingham, AL 35203. Mr. Fraizer is the
dominant and controlling person of the fictitious Defendants.
3. The fraudulent misrepresentations made by S. Fraizer to the Plaintiff
require the following explanation so that the Court can determine which apparent
parties in interest based on S. Fraziers misrepresentations are in fact existing legal
entities under Alabama law and which are fraudulent entities misrepresented by S.
Frazier to be legally formed entities and the owners of the real estate at issue in this
case, the central component of this litigation. The principal document in this case is a
Real Estate Purchase and Sale Agreement executed on December 10, 2012
(Agreement). The Agreement was prepared under S. Fraizers direction and control.
The Agreement misrepresents the names and the legal status of the entities S. Frazier
misrepresents as the owners of the said real property. Specifically, the fraudulent
representations of S. Frazier with regard to the purported owners of the real estate are
as follows:

a) Mitchell-Frazier Farms Limited Partnership is not a legally formed Alabama

limited partnership which S. Frazier fraudulently represented to the Plaintiff
as a legally formed Alabama limited partnership having as its general
partner, another illegally formed entity which S. Frazier fraudulently
represented as Mitchell-Frazier Farms, LLC, an Alabama limited liability
company, an entity which was unlawfully organized and does not legally
exist. Nevertheless, S. Frazier misrepresented this illegally formed LLC as
the general partner of the inconsistently named Mitchell-Frazier limited
partnership.

No other entity is represented by S. Frazier as the general

partner of the alleged limited partnerships. Under Alabama law, a limited

partnership, whatever their name may be, must have a general partner
designated in order to qualify as an Alabama limited partnership. S. Frazier
knew that the foregoing representation regarding the legal description and
existence of the two (2) entities he fraudulently designated as limited
partnership and owners of the real estate at issue were fraudulent
misrepresentations.
b) S. Frazier fraudulently represented in the Agreement that the subject real
estate was owned by an entity which he fraudulently described as MitchellFrazier Limited Partnership, not a lawfully formed limited partnership, but
which entity is actually a general partnership or joint venture under
Alabama law because no legally existing entity is designated as the general

partner, a necessary designation of a partner of a lawfully formed Alabama

limited partnership.
c) S. Frazier further fraudulently misrepresented that Mitchell-Frazier Farms
Family Limited Partnership was the owner of the subject real estate even
though it is an entity that does not legally exist but which S. Frazier
fraudulently misrepresented to the Plaintiff to be a lawfully formed entity
under Alabama law that was an owner of the subject real estate.
d) At the time S. Frazier made the said misrepresentations, he claimed to be
acting simultaneously as attorney for both the Plaintiff and the fictitious
Defendants with an impermissible and unwaivable conflict of interest and
has been doing so actively since at least December of 2011. S. Frazier was
acting in violation of the Alabama Legal Services Liability Act
(ALSLA)..
4.

The Defendant, S. Frazier, is charged in this complaint in his individual

capacity and as an attorney at law with representing the Plaintiff in violation of the
Alabama Legal Services Liability Act, Ala.Code, 1975, 6-5-574, et seq. with doing
business under the names of the entities he fraudulently misrepresented to the Plaintiff as
entities independent from himself, but which, in truth and in fact, have no legal existence,
and were merely used by him as entities to do business.

II.
RELEVANT FACTS
5.

Plaintiff adopts all of the allegations of this complaint as a part of these

relevant facts as if fully set out herein.

6.

In 1994, the one of the consultants to one of the eventual partners of

Genesis, began to consider the real estate which is the subject matter and central
component of this litigation for development purposes. TMM determined that the real
estate was managed by a Birmingham attorney with family and business ties to Decatur,
Alabama. The property is located on Highway 20, outside of Decatur, Alabama and is
described in exhibit A attached to Exhibit 1 hereto.
7.

Many years were spent in planning for and developing all aspects of the

potential of this real estate. In 2005, the Plaintiff was formed by TMM and others to
serve as the vehicle and instrument for the development of the subject real property,
which was also known as Sweetwater.
8.

Plaintiff was contacted in the summer of 2007 about the possibility of

bringing a major national firm to the Sweetwater Development.

The Sweetwater

Development, under the direction and control of Plaintiff, set the goal of bringing the
major national relationship in-house to have a better chance of completing the
Sweetwater Development with the participation of the major national firm. From the
summer of 2007 to July of 2008, Plaintiff worked with elected officials and city staff at
the City of Decatur and bond underwriters, among others, to bring about a $52.5 million
bond package to develop Sweetwater with financial assistance from the City of Decatur.
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S. Frazier was at all times involved in the negotiations because of his control of the real
estate, the essential component of the development.
9.

The Sweetwater Development was put on hold during the 2008-2010

national financial crisis in order to avoid a false start that might have damaged the project
and the relationships involved.
10.

On December 10, 2012, the fictitious Defendants, under the direction and

control of S. Frazier, fraudulently agreed to enter into a third in a series of three (3) Real
Estate Purchase and Sale Agreements (Agreements) with the Plaintiff (Exhibit 1). The
Agreements involved the Frazier lands described more particularly in exhibit A to Exhibit
1 attached hereto. The desirability of the Frazer lands for development is obvious to any
experienced real estate developer.

There have been efforts other than Plaintiffs to

develop the land which have been unsuccessful. S. Frazier has, of course, been centrally
involved with these earlier development efforts because of his control of the land.
Plaintiff and S. Frazier have thus negotiated and signed a total of three (3) Real Estate
Purchase and Sale Agreements one in 2006, one in 2009, and one in 2012 which is the
current agreement. The Agreements other than the 2012 Agreement were arms-length
transactions. The 2012 Agreement stated it was the new Agreement. However, in
December of 2011, S. Frazier informed Plaintiff that he had been acting as the attorney
for Plaintiff in performing legal work for the Plaintiff

in the ongoing Sweetwater

Development work. He now demanded that Plaintiff immediately pay him $40,000 in
attorneys fees or the negotiations that he was supposedly handling for Plaintiff as its
attorney would be terminated by him. Since S. Frazier was essentially negotiating with
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himself on behalf of the Plaintiff, this threat was very real. Plaintiff paid S. Frazier the
demanded $40,000 charging it to legal fees rather than lose the years of work it had put in
the Sweetwater Development.

S. Frazier never submitted an itemized invoice for

attorneys fees to the Plaintiff, never entered into a lawyer/client contract with the
Plaintiff, and never consulted with or advised Plaintiff with regard to his conflict of
interest in simultaneously representing himself, the fictitious Defendants, and the
Plaintiff.
11.

On November 10, 2014, the Plaintiff, through counsel, discovered that it

had been fraudulently induced to sign the Agreement,

Exhibit 1.

The fraudulent

representations by which Plaintiff were induced to sign the Agreement included, but were
not limited to, the following:
(a)

S. Frazier represented in the Agreement that two (2) separate entities named
in the Agreement owned the real estate in question and would convey a fee
simple title to Plaintiff. In the first paragraph to Exhibit 1, he represented
that the Agreement was between, Mitchell-Frazier Farms Family Limited
Partnership, an Alabama limited partnership, (hereinafter referred to as the
Seller). In truth and in fact, there is no legally formed Alabama limited
partnership named Mitchell-Frazier Farms Family Limited Partnership;

(b)

In the signature block on page 19 of the Agreement, S. Frazier and the

fictitious Defendants represent that the Seller was a different entity than
shown on page 1 of the Agreement. The signatory there is MitchellFrazier Family Limited Partnership, an Alabama limited partnership.
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Frazier was still acting as counsel for Plaintiff under the $40,000 fee paid in
December of 2011.

In truth and in fact, there is no Alabama limited

partnership named Mitchell-Frazier Family Limited Partnership;

(c)

The signature block of page 19 of the Agreement states that MitchellFrazier Farms, LLC, is the general partner of Mitchell-Frazier Family
Limited Partnership, an Alabama limited partnership. In the notarization
following this signature, Mitchell-Frazier Farms, LLC is shown to be an
Alabama limited liability company. In truth and in fact, there is no legally
organized Alabama limited liability company named Mitchell-Frazier
Farms, LLC. There is a record of Articles of Organization of MitchellFrazier Farms, LLC in the office of the probate judge of Limestone County,
Alabama, but that is not effective under Alabama law to form the LLC.
The provisions of Ala.Code, 1975, 10A-5-2.01, provide that, One or
more persons may form a limited liability company by filing a certificate of
formation for the limited liability company with the judge of probate of the
county in which the initial registered office of the limited liability company
is located pursuant to Article 3, Chapter 1.

(emphasis added).

This

section was effective in 1993 and will remain effective until January 1,
2017.

According to the Article of Incorporation filed in Limestone

County, Alabama, the initial registered office of Mitchell-Frazier Farms,

LLC was listed as the address of the Spain & Gillon law firm where S.
Frazier practices law, which is in Birmingham, Jefferson County, Alabama.
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No Certificate of Formation for Mitchell-Frazier Farms, LLC has, prior to

November 19, 2014, been filed in the office of the probate judge of
Jefferson County, Alabama. Therefore, Mitchell-Frazier Farms, LLC has
never been formed in accordance with Alabama law.
(d)

Paragraph 4.1 on page 7 of Exhibit 1, reads as follows: Seller agrees to

convey to Purchaser on the Closing Date a good and marketable undivided
fee simple interest in the Property, free and clear of any liens and
mortgages and subject only to current property taxes, rights of way, leases
(as set forth on the attached Exhibit B), restrictions, encumbrances, and
easements of record (collectively, the permitted Exception). S. Frazier
knew when the foregoing representations were made that none of the
entities named in the Agreement could keep this promise. S. Frazier knew
when these representations where made that they were promises that could
not be kept so that they constituted promissory fraud.

(e)

The records of the Alabama Secretary of State show that there is no

Alabama limited liability company named Mitchell-Frazier Farms, LLC
registered with the Secretary of State. Therefore, regardless of the name
under which an Alabama limited partnership operates, it cannot act except
through a named general partner, to convey real estate of otherwise. The
only entity referenced in the Agreement as a general partner is MitchellFrazier Farms, LLC. Thus, neither of the so-called limited partnerships are
lawfully organized.
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III.
CAUSE OF ACTION
Count I
12.

Plaintiff adopts all of the allegations of this complaint as a part of this count

as if fully set out herein.

13.

Plaintiff avers that it relied on the foregoing fraudulent representations and

that as a proximate result of the said reliance, the Plaintiff has been injured and damaged
in the amount of $10 million. Relying on the false representations in the Agreement, the
Plaintiff has incurred huge expenses in an effort to complete the project and has lost the
value of the time of its employees and representatives which were expended in
attempting to bring the project to a successful conclusion.
14.

The Plaintiff contends that it has earned, obtained and acquired an equity

interest in the real estate which is the subject of the Agreement because the work it has
done on developing this specific real estate has been extremely valuable and greatly
increased the value of the real estate. The addition to the value of the real estate has been
the result of large sums of money and many years of effort spent by the Plaintiff in an
effort to develop the real estate. The work it has done and the money it has spent in
attempting to develop this specific real estate, it has been caused to do by means of the
fraud, fraudulent inducements and misrepresentations of S. Frazier and the fictitious
Defendants.

S. Frazier and the fictitious Defendants have fraudulently induced the

Plaintiff to use its influence and contacts in the real estate development world to
consistently promote the value of this real estate so that, as a result of Plaintiffs efforts,
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this real estate is acknowledged as some of the most valuable development property in
the Southeastern United States. Plaintiff would not have made the efforts and spend the
money that has so increased the value of this real estate if it had not been led to do so by
the fraudulent promises and misrepresentations of S. Frazier and the fictitious Defendants
that Plaintiff would have the opportunity to participate in the resulting profits from its
efforts. Plaintiff avers that S. Frazier and the fictitious Defendants never intended to
allow Plaintiff to participate in the profits from the increased value of the real estate, but
always intended to break off negotiations with Plaintiff and to take advantage of the
increased value of the land only for themselves.

Plaintiff avers that S. Fraizer and the

fictitious Defendants should not be allowed to enjoy the unjust enrichment they have
fraudulently schemed to take from the Plaintiff. Plaintiff avers that the only adequate
remedy is for this Court to award an equitable interest in the real estate to the Plaintiff in
recognition of its efforts resulting in the increase to the value of the real estate.
15.

Plaintiff claims that in addition to the $10 million in compensatory

damages due from S. Frazier and the fictitious Defendants it is entitled to punitive
damages against S. Fraizer and the fictitious Defendants for the willful and deliberate
fraud as set forth above in the maximum amount recoverable under Alabama law.
16.

Plaintiff prays that the Court will award it such other and further relief as it

may in the premises be entitled.

Count Two
17.

Plaintiff adopts all of the allegations of this complaint as a part of this count

as if fully set out herein.

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18.

On or about December 10, 2012, S. Frazier and the fictitious Defendants

fraudulently induced the Plaintiff to enter into a Real Estate Purchase and Sale
Agreement (Agreement). The fraudulent means by which the Plaintiff was induced to
enter into the Real Estate Purchase and Sale Agreement was the misrepresentation to the
Plaintiff made by S. Frazier that entities named in the Agreement owned approximately
536.843 acres of land located in Limestone County, Alabama and more particularly
described on exhibit A to Exhibit 1 attached hereto and that they would deliver a
marketable fee simple title to the real estate to the Plaintiff.

The fraudulent means by

which S. Frazier and the fictitious Defendants induced the Plaintiff to sign the Agreement
was that they misrepresented that the real estate was owned by the limited partnerships
listed above when, in truth and in fact, those limited partnerships did not exist nor did
they own the real estate, and accordingly could not sell it.
19.

Plaintiff avers that it relied on the foregoing fraudulent misrepresentations

and that as a proximate result of the said reliance, the Plaintiff has been injured and
damaged in the amount of $10 million in compensatory damages.

Relying on the

misrepresentations in the Agreement, the Plaintiff has incurred expenses in an effort to

complete the project and has lost the value of the time of its employees and
representatives in attempting to bring the project to a successful conclusion. Moreover,
S. Frazier has learned and benefitted enormously from observing the work and techniques
of the Plaintiff in attempting to develop the Sweetwater Development. The Plaintiff
contends that it has acquired an equity interest in the real estate shown in exhibit A to
Exhibit 1 by means of the fraudulent inducements and representations of S. Frazier and
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the fictitious Defendants and that the Plaintiff is entitled to an equitable division of the
ownership of the real estate which is referenced herein. Plaintiff prays that the Court
will, on the trial of this case, decide that the Plaintiff is entitled to an equitable ownership
interest in the said property without further costs or charge to it and will apportion and
divide the real estate amongst and between the claimants thereto as equity requires.
20.

Plaintiff claims that in addition to the compensatory damages, it is entitled

to punitive damages against S. Frazier and the fictitious Defendants for their willful and
deliberate fraud in the maximum amount allowed by Alabama law.
21.

Plaintiff prays that the Court will award it such other and further relief as it

may in the premises be entitled.

Count Three
22.

Plaintiff adopts all of the allegations of this complaint as a part of this count

as if fully set out herein.

23.

Plaintiff avers that in December of 2011, the Defendant, Sam Frazier (S.

Frazier), at his insistence, entered into an attorney/client relationship with the Plaintiff
while he was also serving as attorney for the fictitious Defendants and, moreover, while
he was a party to the same transactions in which he undertook to represent the Plaintiff.
Therefore, Plaintiff avers that Frazier was in a non-waivable conflict of interest. Instead
of representing the Plaintiff as he had agreed to do, he rather served the interests of
himself and the fictitious Defendants and acted against the interests of the Plaintiff, all in
violation of the ALSLA. S. Fraizers conduct fell below the standard of care exercised
by attorneys representing clients in the same general area and performing the same type
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of legal services and as a proximate result, Plaintiff suffered a more unfavorable result
that it would have otherwise obtained. S. Frazier required the Plaintiff to pay him
$40,000 as an attorneys fee even though the Plaintiff had not agreed to employ him as an
attorney in the matter in question. S. Frazier insisted that unless he was paid the sum of
$40,000 as attorneys fees, that he would cease negotiating and therefore deprive the
Plaintiff of the opportunity to conclude the matter favorably to it. As a result of the
conflict of interest of S. Frazier, he failed to represent the interests of the Plaintiff as he
agreed to do, and as he had been paid to do, so that the matter ended more unfavorably to
the Plaintiff than it would have but for S. Fraziers violation of the standards of the
ALSLA.
24.

Plaintiff claims compensatory damages of S. Frazier in the amount of $10

million and punitive damages in the amount of $30 million as a proximate result of S.
Fraziers violation of the ALSLA.
Respectfully submitted,

/s/ William E. Rutledge

William Eugene Rutledge (RUT001)
ATTORNEY FOR THE PLAINTIFF

OF COUNSEL:
Rutledge & Yaghmai
Two Chase Corporate Drive
Suite 460
Birmingham, AL 35244
205/985-2411 T.
205/985-2412 F.
williamerutledge@aol.com
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JURY TRIAL DEMAND

The Plaintiff demands a trial by struck jury.

/s/ William Eugene Rutledge

Of Counsel

SERVE DEFENDANTS, BY CERTIFIED MAIL:

Samuel H. Frazier
c/o Spain & Gillon, LLC
2117 Second Avenue North
The Zinszer Building
Birmingham, AL 35203
Mitchell-Frazier Farms, LLC
c/o Samuel H. Frazier, Registered Agent
2117 Second Avenue North
Birmingham, AL 35203
Mitchell-Frazier Farms Family Limited Partnership
c/o Samuel H. Frazier
2117 Second Avenue North
Birmingham, AL 35203
Mitchell-Frazier Farms Limited Partnership
c/o Samuel H. Frazier
2117 Second Avenue North
Birmingham, AL 35203
Frazier Farms, LLC
c/o Samuel H. Frazier
2117 Second Avenue North
Birmingham, AL 35203

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