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Promissory Notes Complaint vs Wagner and WCFS

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Hindenburg Research
Hindenburg Research

Complaint against Aaron Wagner seeking payment of promissory notes

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Eric G. Maxfield (8668) Ben D. Passey (19234) Holland & Hart LLP 222 South Main Street, Suite 2200 Salt Lake City, UT 84101 Tel: (801) 799-5800 egmaxfield@hollandhart.com bdpassey@hollandhart.com Attorneys for Plaintiffs IN THE FOURTH JUDICIAL DISTRICT COURT IN AND FOR UTAH COUNTY JOE JANGRO, an individual; and MICHAEL AND SUZANNE CARUSILLO, an individual; Plaintiffs, v. AARON WAGNER, an individual; DYNAMIC CAPITAL, LLC, a limited liability company; and WAGSCAP FOOD SERVICES, LLC, a Utah limited liability company; JOHN DOES I-X; Defendants. COMPLAINT Case No. ______________________ Judge: _________________________ Plaintiffs Joe Jangro (“Jangro”) and Michal and Suzanne Carusillo (“Carusillo”) (collectively “Plaintiffs”) hereby demand against Defendants Aaron Wagner (“Wagner”), Dynic Capital (“Dynamic”), Wagscap Food Services, LLC (“Wagscap”), and John Does I-X (collectively the “Defendants”) as follows: PARTIES 1. Plaintiff Joe Jangro is a Florida resident. 2. Plaintiffs Mickey and Suzanne Carusillo are Florida residents. 3. Defendant Aaron Wagner is a Utah resident. IF YOU DO -oT RESPO ID TO THIS DOCU IENT ,VITHIN APPLICABLE TTh'IE LThllTS, JUDG IENT COULD BEE TERED AGAINST YO AS REQUESTED.
2 4. Defendant Dynamic Capital, LLC is a limited liability company with its principal place of business in Lehi, Utah. Upon information and belief, Wagner is the legal manager of Dynamic. 5. Defendant Wagscap Food Services, LLC is a limited liability company with is principal place of business in Lehi, Utah. Upon information and belief, Dynamic Capital is the legal manager of Wagscap Food. 6. Defendants John Does I – X are individuals or entities whose identities are not currently known and who may be the alter egos of Wagscap Food Services, LLC, as alleged further herein. JURISDICTION AND VENUE 7. This Court has jurisdiction pursuant to Utah Code § 78A-5-102(2) and venue is proper pursuant to Utah Code § 78A-3-304(2). GENERAL ALLEGATIONS 8. Over the last several years, Wagner has operated numerous businesses and business entities throughout the United States. 9. Included in those businesses, Wagner operates an entity called Wags Capital. 10. On Wags Capital’s website, Wagner promises:
3 11. Wagner also operates Wagscap Food Services, LLC. 12. Wagner approached Jangro and Carusillo for the purposes of securing a loan. 13. Wagner told Jangro and Carusillo that if they were to loan him money, he would specifically use the money to build four new “Dirty Bird” restaurants in the following locations: A. 678 South Pleasant Grove Blvd, Pleasant Grove, UT B. 9710 South State Street, Sandy, UT C. 210 South Fort Lane, Layton, UT D. 41 East 1140 North, Saratoga Springs, UT 14. Wagner told Jangro and Carusillo, and Jangro and Carusillo understood that the loans made to Wagscap Food Services, LLC would be used exclusively for the purpose of constructing the four Dirty Bird restaurants. 15. In making the loans, Jangro and Carusillo relied upon Wagner’s promise to use the money exclusively for the construction of the restaurants. 16. Wagner, on Wagscap Food Services, LLC’s behalf, executed a Promissory Note, dated November 18, 2022, promising to pay Jangro the principal sum of $2,250,000, plus interest, (the Jangro Promissory Note).
4 17. Wagner, on Wagscap Food Services, LLC’s behalf, executed a Promissory Note, dated November 18, 2022, promising to pay Carusillo the principal sum of $750,000 (the Carusillo Promissory Note). 18. Jangro and Carusillo fulfilled their obligations under the Notes by delivering to Wagscap Food Services, LLC the principal loan amounts described in the Notes. 19. The Notes were amended in May 2023 to change one of the store entities from WCFS DB Layton LLC to WCFS DB South Jordan LLC, and to amend the Notes’ provisions regarding interest to require interest to be paid starting from July 1, 2023. 20. The Notes became due on July 1, 2024. 21. Wagscap Food Services, LLC, or some other entity associated with Wagner, constructed and operated two of the restaurants described above. Operations, however, lasted a very short time before Wagscap Food Services, LLC terminated operations. 22. At no time has Wagscap Food Services, LLC (or any other entity or individual on its behalf) paid any amounts toward the Notes. 23. On several occasions in 2024, Wagner has expressly told Jangro that Wagscap Food Services, LLC will not pay the Notes when due, effectively repudiating the contractual obligations for repayment described in the Notes. 24. Plaintiffs made demand for payment on July 1, 2024, but Wagner failed to respond or pay. 25. The amounts under the Notes are presently due and owing. FIRST CAUSE OF ACTION (Breach of Contract) 26. Plaintiffs incorporate the preceding paragraphs as though set forth herein. 27. Jangro and Wagscap Food Services, LLC are parties to the Promissory Note.
5 28. The Jangro Promissory Note is a binding contract between Jangro and Wagscap Food Services, LLC. 29. Jangro performed all of his duties under the Promissory Note. 30. The Carusillo Promissory Note is a binding contract between Carusillo and Wagscap Food Services, LLC. 31. Carusillo performed all of his duties under the Promissory Note. 32. Wagscap Food Services, LLC breached its obligations under the Notes by failing to pay the amounts by July 1. 33. Plaintiffs have been damaged but in amounts no less than the amount of the loans they provided to Wagscap Food Services, LLC under the Notes, as described elsewhere in this Complaint, plus interest, attorneys’ fees and costs of collection, as a result of the actions of Wagscap Food Services, LLC. 34. Wagscap Food Services, LLC purports to be a limited liability company. 35. Upon information and belief, Dynamic Capital, LLC is either the sole manager or at least the controlling manager of Wagscap Food Services, LLC. 36. Upon information and belief, Arron Wagner is either the sole manager or at least the controlling manager of Dynamic Capital, LLC, and has acted as the de facto manager of Wagscap Food Services, LLC. 37. Upon information and belief, there is a unity of interest between and among Wagscap Food Services, LLC, on the one hand, and Aaron Wagner and/or Dynamic Capital, LLC and/or John Does I-X, on the other, that the separate personalities of Wagscap Food Services, LLC, Wagner, and Dynamic Capital, on the other, no longer exist.
6 38. Upon information and belief, Wagscap Food Services, LLC has failed to observe the corporate form. 39. Upon information and belief, Wagscap Food Services, LLC, during the times relevant to this complaint, was undercapitalized, its unencumbered capital was not reasonably adequate for its prospective liabilities, its capital was illusory or trifling compared with the business to be done and the risks of loss, it failed to observe corporate formalities, failed to pay dividends, had non-functioning officers, managers, or directors, failed to distinguish between LLC and personal or other property, and failed to keep appropriate and expected business and financial records. 40. Upon information and belief, Wagscap Food Services, LLC has co-mingled assets and funds with Dynamic Capital, Aaron Wagner, and/or other Wagner- affiliated entities and/or John Does I-X, whose identities are not currently known. 41. Upon information and belief, Wagner, Dynamic Capital, other Wagner-affiliated entities and/or John Does I-X, have changed title to, removed, siphoned off, or otherwise disposed of assets belonging to Wagscap Food Services, LLC without regard for observance of the corporate form and/or without regard to Plaintiffs’ rights, and have done so with the effect of and/or for the purpose of promoting injustice or fraud. 42. Upon information and belief, Wagscap Food Services, LLC has effectively served as a façade for the operations of its dominant manager(s) or member(s), and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner-affiliated entities and/or John Does I-X. 43. Upon information and belief, observance of the corporate from of Wagscap Food Services, LLC would sanction a fraud, promote injustice, or result in an inequitable result.
7 44. Upon information and belief, observing the corporate form of Wagscap Food Services, LLC will result in unfairness and injustice. 45. Plaintiffs have been damaged in amounts to be proven at trial, but in amounts no less than the amount of the loans they provided to Wagscap Food Services, LLC, as described elsewhere in this Complaint, as a result of the actions of Wagscap Food Services, LLC, and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner-affiliated entities and/or John Does I-X. 46. Upon information and belief, Plaintiffs are entitled to an order establishing that Wagscap Food Services, LLC is the alter ego of and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner-affiliated entities and/or John Does I-X, and that Plaintiffs are entitled to judgment against the same for the debts of Wagscap Food Services, LLC. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 1. An award against all defendants in favor of Jangro in the principal amount of $2,250,000; 2. An award against all defendants in favor of Jangro for pre-judgment and post- judgment interest at the highest rate allowed by law and the parties’ contracts; 3. An award of attorneys’ fees and costs of collection in favor of Jangro; 4. An award against all defendants in favor of Carusillo in the principal amount of $750,000; 5. An award against all defendants in favor of Carusillo for pre-judgment and post- judgment interest as permitted by the parties’ contract and by law; 6. An award of attorneys’ fees and costs of collection in favor of Carusillo;
8 7. An order, declaration and judgment establishing that Wagscap Food Services, LLC is the alter ego of and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner- affiliated entities and/or John Does I-X, and that Plaintiffs are entitled to judgment against the same for the debts of Wagscap Food Services, LLC, as described herein. 8. For such other and further relief as the Court deems just and proper. DATED this 10th day of July, 2024. HOLLAND & HART LLP /s/ Eric G. Maxfield Eric G. Maxfield Ben D. Passey Attorneys for Plaintiffs Plaintiffs’ Addresses: Joe Jangro 911 Ponte Vedra Blvd. Ponte Vedra, FL 32082 Mickey Carusillo 971 Ponte Vedra Blvd. Ponte Vedra, FL 32082 32395868_v1

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Promissory Notes Complaint vs Wagner and WCFS

  • 1. Eric G. Maxfield (8668) Ben D. Passey (19234) Holland & Hart LLP 222 South Main Street, Suite 2200 Salt Lake City, UT 84101 Tel: (801) 799-5800 egmaxfield@hollandhart.com bdpassey@hollandhart.com Attorneys for Plaintiffs IN THE FOURTH JUDICIAL DISTRICT COURT IN AND FOR UTAH COUNTY JOE JANGRO, an individual; and MICHAEL AND SUZANNE CARUSILLO, an individual; Plaintiffs, v. AARON WAGNER, an individual; DYNAMIC CAPITAL, LLC, a limited liability company; and WAGSCAP FOOD SERVICES, LLC, a Utah limited liability company; JOHN DOES I-X; Defendants. COMPLAINT Case No. ______________________ Judge: _________________________ Plaintiffs Joe Jangro (“Jangro”) and Michal and Suzanne Carusillo (“Carusillo”) (collectively “Plaintiffs”) hereby demand against Defendants Aaron Wagner (“Wagner”), Dynic Capital (“Dynamic”), Wagscap Food Services, LLC (“Wagscap”), and John Does I-X (collectively the “Defendants”) as follows: PARTIES 1. Plaintiff Joe Jangro is a Florida resident. 2. Plaintiffs Mickey and Suzanne Carusillo are Florida residents. 3. Defendant Aaron Wagner is a Utah resident. IF YOU DO -oT RESPO ID TO THIS DOCU IENT ,VITHIN APPLICABLE TTh'IE LThllTS, JUDG IENT COULD BEE TERED AGAINST YO AS REQUESTED.
  • 2. 2 4. Defendant Dynamic Capital, LLC is a limited liability company with its principal place of business in Lehi, Utah. Upon information and belief, Wagner is the legal manager of Dynamic. 5. Defendant Wagscap Food Services, LLC is a limited liability company with is principal place of business in Lehi, Utah. Upon information and belief, Dynamic Capital is the legal manager of Wagscap Food. 6. Defendants John Does I – X are individuals or entities whose identities are not currently known and who may be the alter egos of Wagscap Food Services, LLC, as alleged further herein. JURISDICTION AND VENUE 7. This Court has jurisdiction pursuant to Utah Code § 78A-5-102(2) and venue is proper pursuant to Utah Code § 78A-3-304(2). GENERAL ALLEGATIONS 8. Over the last several years, Wagner has operated numerous businesses and business entities throughout the United States. 9. Included in those businesses, Wagner operates an entity called Wags Capital. 10. On Wags Capital’s website, Wagner promises:
  • 3. 3 11. Wagner also operates Wagscap Food Services, LLC. 12. Wagner approached Jangro and Carusillo for the purposes of securing a loan. 13. Wagner told Jangro and Carusillo that if they were to loan him money, he would specifically use the money to build four new “Dirty Bird” restaurants in the following locations: A. 678 South Pleasant Grove Blvd, Pleasant Grove, UT B. 9710 South State Street, Sandy, UT C. 210 South Fort Lane, Layton, UT D. 41 East 1140 North, Saratoga Springs, UT 14. Wagner told Jangro and Carusillo, and Jangro and Carusillo understood that the loans made to Wagscap Food Services, LLC would be used exclusively for the purpose of constructing the four Dirty Bird restaurants. 15. In making the loans, Jangro and Carusillo relied upon Wagner’s promise to use the money exclusively for the construction of the restaurants. 16. Wagner, on Wagscap Food Services, LLC’s behalf, executed a Promissory Note, dated November 18, 2022, promising to pay Jangro the principal sum of $2,250,000, plus interest, (the Jangro Promissory Note).
  • 4. 4 17. Wagner, on Wagscap Food Services, LLC’s behalf, executed a Promissory Note, dated November 18, 2022, promising to pay Carusillo the principal sum of $750,000 (the Carusillo Promissory Note). 18. Jangro and Carusillo fulfilled their obligations under the Notes by delivering to Wagscap Food Services, LLC the principal loan amounts described in the Notes. 19. The Notes were amended in May 2023 to change one of the store entities from WCFS DB Layton LLC to WCFS DB South Jordan LLC, and to amend the Notes’ provisions regarding interest to require interest to be paid starting from July 1, 2023. 20. The Notes became due on July 1, 2024. 21. Wagscap Food Services, LLC, or some other entity associated with Wagner, constructed and operated two of the restaurants described above. Operations, however, lasted a very short time before Wagscap Food Services, LLC terminated operations. 22. At no time has Wagscap Food Services, LLC (or any other entity or individual on its behalf) paid any amounts toward the Notes. 23. On several occasions in 2024, Wagner has expressly told Jangro that Wagscap Food Services, LLC will not pay the Notes when due, effectively repudiating the contractual obligations for repayment described in the Notes. 24. Plaintiffs made demand for payment on July 1, 2024, but Wagner failed to respond or pay. 25. The amounts under the Notes are presently due and owing. FIRST CAUSE OF ACTION (Breach of Contract) 26. Plaintiffs incorporate the preceding paragraphs as though set forth herein. 27. Jangro and Wagscap Food Services, LLC are parties to the Promissory Note.
  • 5. 5 28. The Jangro Promissory Note is a binding contract between Jangro and Wagscap Food Services, LLC. 29. Jangro performed all of his duties under the Promissory Note. 30. The Carusillo Promissory Note is a binding contract between Carusillo and Wagscap Food Services, LLC. 31. Carusillo performed all of his duties under the Promissory Note. 32. Wagscap Food Services, LLC breached its obligations under the Notes by failing to pay the amounts by July 1. 33. Plaintiffs have been damaged but in amounts no less than the amount of the loans they provided to Wagscap Food Services, LLC under the Notes, as described elsewhere in this Complaint, plus interest, attorneys’ fees and costs of collection, as a result of the actions of Wagscap Food Services, LLC. 34. Wagscap Food Services, LLC purports to be a limited liability company. 35. Upon information and belief, Dynamic Capital, LLC is either the sole manager or at least the controlling manager of Wagscap Food Services, LLC. 36. Upon information and belief, Arron Wagner is either the sole manager or at least the controlling manager of Dynamic Capital, LLC, and has acted as the de facto manager of Wagscap Food Services, LLC. 37. Upon information and belief, there is a unity of interest between and among Wagscap Food Services, LLC, on the one hand, and Aaron Wagner and/or Dynamic Capital, LLC and/or John Does I-X, on the other, that the separate personalities of Wagscap Food Services, LLC, Wagner, and Dynamic Capital, on the other, no longer exist.
  • 6. 6 38. Upon information and belief, Wagscap Food Services, LLC has failed to observe the corporate form. 39. Upon information and belief, Wagscap Food Services, LLC, during the times relevant to this complaint, was undercapitalized, its unencumbered capital was not reasonably adequate for its prospective liabilities, its capital was illusory or trifling compared with the business to be done and the risks of loss, it failed to observe corporate formalities, failed to pay dividends, had non-functioning officers, managers, or directors, failed to distinguish between LLC and personal or other property, and failed to keep appropriate and expected business and financial records. 40. Upon information and belief, Wagscap Food Services, LLC has co-mingled assets and funds with Dynamic Capital, Aaron Wagner, and/or other Wagner- affiliated entities and/or John Does I-X, whose identities are not currently known. 41. Upon information and belief, Wagner, Dynamic Capital, other Wagner-affiliated entities and/or John Does I-X, have changed title to, removed, siphoned off, or otherwise disposed of assets belonging to Wagscap Food Services, LLC without regard for observance of the corporate form and/or without regard to Plaintiffs’ rights, and have done so with the effect of and/or for the purpose of promoting injustice or fraud. 42. Upon information and belief, Wagscap Food Services, LLC has effectively served as a façade for the operations of its dominant manager(s) or member(s), and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner-affiliated entities and/or John Does I-X. 43. Upon information and belief, observance of the corporate from of Wagscap Food Services, LLC would sanction a fraud, promote injustice, or result in an inequitable result.
  • 7. 7 44. Upon information and belief, observing the corporate form of Wagscap Food Services, LLC will result in unfairness and injustice. 45. Plaintiffs have been damaged in amounts to be proven at trial, but in amounts no less than the amount of the loans they provided to Wagscap Food Services, LLC, as described elsewhere in this Complaint, as a result of the actions of Wagscap Food Services, LLC, and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner-affiliated entities and/or John Does I-X. 46. Upon information and belief, Plaintiffs are entitled to an order establishing that Wagscap Food Services, LLC is the alter ego of and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner-affiliated entities and/or John Does I-X, and that Plaintiffs are entitled to judgment against the same for the debts of Wagscap Food Services, LLC. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendants as follows: 1. An award against all defendants in favor of Jangro in the principal amount of $2,250,000; 2. An award against all defendants in favor of Jangro for pre-judgment and post- judgment interest at the highest rate allowed by law and the parties’ contracts; 3. An award of attorneys’ fees and costs of collection in favor of Jangro; 4. An award against all defendants in favor of Carusillo in the principal amount of $750,000; 5. An award against all defendants in favor of Carusillo for pre-judgment and post- judgment interest as permitted by the parties’ contract and by law; 6. An award of attorneys’ fees and costs of collection in favor of Carusillo;
  • 8. 8 7. An order, declaration and judgment establishing that Wagscap Food Services, LLC is the alter ego of and/or Wagner and/or Dynamic Capital, LLC, and/or other Wagner- affiliated entities and/or John Does I-X, and that Plaintiffs are entitled to judgment against the same for the debts of Wagscap Food Services, LLC, as described herein. 8. For such other and further relief as the Court deems just and proper. DATED this 10th day of July, 2024. HOLLAND & HART LLP /s/ Eric G. Maxfield Eric G. Maxfield Ben D. Passey Attorneys for Plaintiffs Plaintiffs’ Addresses: Joe Jangro 911 Ponte Vedra Blvd. Ponte Vedra, FL 32082 Mickey Carusillo 971 Ponte Vedra Blvd. Ponte Vedra, FL 32082 32395868_v1