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Shortly after voluntarily dismissing a fraud case against former mayoral candidate Brett McClafferty, his father Thomas McClafferty and their company, Mac & Mac Properties Inc., Canton businessman Chris Muraco has refiled the legal complaint against the same parties.
A central point of the legal complaint, filed Dec. 14 with the Portage County Court of Common Pleas, as it was in the prior case, is that Brett McClafferty allegedly falsified Pulp Smoothie's January to July 2010 sales figures.
The complaint then alleges Brett McClafferty arranged to have the point of sales data reset for the business on the day the sale of the business took place, Sept. 8, 2010.
"This action was done intentionally to erase sales history of the business for the express purpose of preventing plaintiffs from accessing any and all historic sales data and to further their fraudulent conduct," states the legal complaint.
Denying the allegation, Brett McClafferty said the case has a hole in it because he was not in Streetsboro Aug. 2, 2010 when the complaint alleges he faxed sales figures to Muraco.
"They are making an allegation they got false numbers on a day that I was in Chicago," said McClafferty. "That is an inherently frivolous lawsuit. The guy is digging himself a legal grave Now he's trying to force a settlement."
McClafferty said he has receipts and witnesses from airlines, hotels and other businesses proving he was out of town when Muraco claims he faxed the sales records to him from Streetsboro.
Muraco's attorney, Brad Barmen, disputes McClafferty's explanation that he was out of town the day the documents were sent to Muraco.
"I look forward to cross examining Brett at trial," he said. "The evidence and testimony doesn't support that."
Muraco is seeking recission of the contract, repayment of the $169,998 sale price, compensatory damages of more than $25,000, punitive damages to be determined at trial, attorneys' fees and any other incidental costs associated with the case, said Barmen.
Brett McClafferty said he plans to file a counter suit, alleging the Dec. 14 case is a frivolous lawsuit.
"I don't care if he goes on '60 Minutes,' I'm not settling with him if he calls me a liar," said Brett McClafferty.
The complaint also alleges the defendants breached the terms of the asset purchase agreement by failing to provide on-site assistance for two weeks after the closing of the sale and failing to provide the business' historic sales data.
Brett McClafferty said Thomas McClafferty, his father, should not be included in the legal complaint as a defendant.
"Chris Muraco said in his deposition that he never even spoke to him," said Brett McClafferty.
As president of Mac & Mac Properties, the elder McClafferty "benefitted from the fraud by pocketing the money my client paid" and should be included, according to Barmen.
Barmen Dec. 3 voluntarily dismissed a prior case including the same allegations. He said he dismissed the case based on what he called a "procedural technicality," promising to refile the case.
In the prior case, McClafferty's attorney Greg Rufo argued in a Nov. 28 brief that C.P. Muraco Enterprises Inc., the plaintiff in the case, "lacks standing to assert its fraud claim" because the C.P. Muraco Enterprises P.S.P. didn't exist at the time the alleged fraud occurred.
In the refiled case, Muraco himself is named as a plaintiff. C.P. Muraco Enterprises P.S.P., a plaintiff in the dismissed case, was not created until after the sale took place, according to the refiled complaint.
"While plaintiff C.P. Muraco Enterprises Inc. was not registered in Ohio until Aug. 11, 2010 and plaintiff C.P. Muraco Enterprises P.S.P. was not registered until March of 2012, defendants dealt with Muraco as a de facto corporation at all times relevant to this action," states the Dec. 14 complaint.