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Filing # 132649114 E-Filed 08/13/2021 02:15:58 PM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.. CACE- 21- 010368
JENNIFER BRADLEY,
individually, and JENNIFER
BRADLEY CORPORATION, INC.
a Florida Corporation,
Plaintiffs,
V
WILLIAM BROWNING, individually
and BROWNING PRODUCTIONS AND
ENTERTAINMENT, INC., a Florida
Corporation
Defendants.
i
DEFENDANTS' MOTION TO DISMISS AND/OR
FOR MORE DEFINITE STATEMENT
Defendants, William Browning ("Browning") and Browning Productions and
Entertainment, Inc. ("BPE") (collectivelythe "Defendants"), pursuant to Fla. R. Civ. P. 1.140(b)
move this Court for entry of an order dismissing the Complaint filed by Plaintiffs, Jennifer
Bradley("Bradley")and JenniferBradley Corporation, Inc. ("JBC") (collectivelythe "Plaintiffs")
or in the alternative for a more definite statement. The grounds for this motion are as follows:
PRELIMINARY STATEMENT
Neither of the Defendants are party to any agreement attached to the Complaint. Florida
law is clear that any time exhibits to a complaint contradict the allegations in the complaint, the
exhibits control. Rolling Oaks Homeowner 's Ass'n, Inc. v. Dade County, 491 So.2d 686,688 (Fla.
3d DCA 1986). If the allegations are contradicted by the exhibits, the exhibits render the
allegations in the complaint a nullity. Venezia Lakes Homeowners Ass'n, Inc. v. CSX Transp.,
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/13/2021 02:15:57 PM.****
Inc.,43 So.3d 93,95 (Fla. 3d DCA 1010) citing American Seafood, Inc. v. Clawson, 59% So.2d
273 (Fla. 3d DCA 1992). Here, most ofthe substantive allegations in the Complaint conflictwith
the exhibits to the Complaint. As a result, the claims set forth are rendered a nullity and the
Complaint should be dismissed.
BACKGROUND
1. On May 24,2021, Plaintiffs filed their Complaint against Defendantsfor six counts:
i) Breach of Contract; ii) Unjust Enrichment; iii) Fraud; iv) Civil Theft; v) Conversion; and, vi)
DeclaratoryJudgment.
2. Attached to the Complaint as Exhibit A, is a Manager Managed Limited Liability
Company Operating Agreement dated Dec. 9, 2019 (the "Operating Agreement") between non-
parties Raw Beauty TV, LLC ("RBTV"), Jennifer Bradley Productions, LLC ("JBP") and
Browning Companies International, LLC ("BCI"). According to the Operating Agreement
1
Jennifer Bradley is a manager of RBTVand JBP is a 50% owner of RBTV. Operating Agreement
Schedule "A", Schedule "B".
3. Attached to the Complaint as Exhibit B is a Letter of Intent for JBC for TV Series
Brand Integration that includes an integration agreement (the "IntegrationAgreement") between
non-paro' RBTV and JBC.2 The Integration Agreement is only signed by Jennifer Bradley.
1
Although it is not stated in the Complaint, it should be noted that attorney Cohen and the law
firm of Wicker Smith O'Hara McCoy & Ford, P.A. represented Raw Beauty TV, LLC, Jennifer
Bradley Productions, LLC and
Browning Companies International,LLC in the drafting of at least
the Operating Agreement and Integration Agreement attached to the Complaint. See, generally
Fla. Bar. Rules 4-1.7; 4-1.8; and, 4-1.9 (Florida Bar Rules governing conflicts of interest).
2
Although not apparent from the Complaint, attorney Cohen and the law firm of Wicker Smith
O'Hara McCoy & Ford, P.A. represented Raw Beauty TV, LLC and Jennifer Bradley Productions,
LLC in the drafting of the Letter of Intent and Integration Agreement that are only signed by
Jennifer Bradley.
2
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
MEMORANDUM OF LAW
A motion to dismiss tests whether the Plaintiffhas stated a cause o f action. Bell v. Indian
River Memorial Hospital, 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001). In considering the merits
of a motion to dismiss, a court may not go beyond the four corners of the complaint and must
accept the facts alleged therein as true. Taylor v. City of Riviera Beach, %01 So. 2d 259,262 (Fla.
4th DCA 2001), rev. denied 821 So. 2d 293 (Fla. 2002). However, to state a cause of action, the
complaint must set forth sufficientultimate facts to show that the plaintiff is entitled to the relief
sought. Id.
A. All Counts to the ComplaintAre Negated By the Exhibits Thereto And
Should Be Dismissed With Preiudice.
An exhibit attached to a complaint may be considered on a motion to dismiss and can
negate a cause of action. Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240, 1242
(Fla. 2000); Shumrakv. Broken Sound Club, Inc., %98 So. 2d 1018, 1020 (Fla. 4th DCA 2005).
1. Count I Should Be Dismissed with Prejudice Because the
Plaintiffs Lack Standing and the Defendants are not Parties to
the Alleged Contracts.
As set forth above, none of the alleged agreements attached to the Complaint involve
Defendants. Furthermore, JBC is not a party to the Operating Agreement and has no standing to
enforce it. Khan v. Bank ofblmerica, 58 So.3d 927, 928 (Fla. 5th DCA 2011) (holding thatthe note
attached to the complaint evidenced who was the proper party to have standing as a matter of law).
Count I ofthe Complaint is for Breach of Contract by JBC against the Defendants. Compl.
lili 51-59. There are two written agreements attached to the Complaint, the Operating Agreement
and the Integration Agreement (the "Agreements"). Compl. Exhibit A, Exhibit B. Additionally,
Plaintiffs allege the existence of an unwritten sub-lease of office space between JBC and
Defendants. Compl. f 34. In Count I, Plaintiff JBC alleges that "Plaintiffand Defendant entered
3
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
..
into a valid enforceable contract for the production of the Program by Defendants'
(the "Alleged Production Contract") and that Defendant JBC breached that contract by failing to
produce and develop the Program. Compl. 'Ilf 52,56. However, the Alleged Production Contract
is not attached to the Complaint as required by Fla. R. Civ. P. 1.130. JBC's breach of contract
claim is unclear as to which agreement(s)were allegedlybreached. It would appear that instead of
enforcing the Operating Agreement and the Integration Agreement against the parties to those
Agreements, JBC has disregarded those agreements, in order to wrongfully sue JBC and Mr.
Browning, personally under the oral Alleged Production Contract.
If any ofthe non-partiesto this action, JBP, RBTV and/or BCI believe they are entitled to
relief pursuant to the alleged agreements attached to the Complaint, those parties should bring an
action against the party to the Agreements that they allege committed a breach. None of the
Defendants are parties to either of the written Agreements attached to the Complaint. The
Plaintiffs' have brought suit against parties not in privity with them, under contracts and
transactions to which Defendants and Plaintiffs are not parties, and the Plaintiffs have failed to
join indispensable parties JBP, RBTV and BCI.
Moreover, Florida's statute of frauds prohibits any action brought
whereby to charge the defendant upon any special promise to answer for the debt,
default or miscarriage of another person or to charge any person upon any
agreement... for any lease thereof for period longer than 1 year, or upon any
agreement that is not to be performed within the space of 1 year of the making
thereof... unless the agreement or promise upon which such action shall be
brought... in writing signed by the party to be charged therewith.
Fla. Stat. § 725.01. Therefore, the Alleged Production Contract cannot be enforced as there is no
corresponding signed writing that would take the Alleged Production Contract out of the statute
4
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
of frauds. 3 The Operating Agreement and Integration Agreement cannot take the Alleged
Production out of the statute of frauds because they are not signed by the parties being charged in
this lawsuit.
A party seeking to litigate a dispute has the initial threshold burden to establish that there
is legal dispute between the parties before the court, for which the court has jurisdiction to decide.
Snyder v. McLeod, 971 So.2d 166, 168 (Fla. 5th DCA 2007). Plaintiffs have failed to establish a
legal dispute between the "parties before the court" that the court may decide since none of the
Defendants are parties to any ofthe Agreements.
Furthermore, "[a] basic tenet of American Corporate law is that the corporation and its
shareholders are distinct entities."NorthAmerican Clearing, Inc. v. Brokerage Computer Systems,
Inc. 2009 WL 1513389, *7 (M.D. Fla. May 27, 2009) citing Dole Food Co. v. Patrickson, 536
U.S. 468,474 (2003). It is a claimant's burden to pierce the corporate veil before it may litigate
claims that rely on veil piercing. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114,1120 (Fla.
1984); ARW Exploration Corporationv. Armenis, 45 F.3d 1455, 1460-1461 (10th Cir. 1995). To
disregard BPE's corporate existence, BCI and JBP, both Plaintiffs needs to pierce the corporate
veil and show that BPE, BCI and JBP are shams and exists for no other purpose than as a vehicle
for fraud. Dania Jai-Alai Palace, Inc., 450 So.2d 1114 at 1120. Plaintiffs have not, and based
upon the facts already pled, cannot do that.
3
It should be noted that although Bradley admits she
personally guaranteed a commercial loan to
fund the integration agreement for RBTV there isallegation in the Complaint that any other
no
Defendant signed any personal guarantee. Compl. 7 31. Bradley also admits she failed to fully
fund RBTV as agreed and contends that RBTV was operating out of a shared space that she
allegedly provided to RBTV under an unwritten sublease for $27,000.0 which according the
Plaintiffis $2,000.00 for (13.5) months. Compl. 7 33.
5
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
The corporate veil may only be pierced upon proof that a corporation "it is in actuality an
alter ego of the stockholders" and "it was organized or after organization was employed by the
stockholders for fraudulent or misleading purposes." Dania Jai-Alai Palace, Inc., 450 So.2d at
1120 (internal quotations omitted). The fraudulent or misleading purposes may exist only "where
the corporation was employed by the stockholders for fraudulent or misleading purposes, was
organized or used to mislead creditors or to perpetrate a fraud upon them, or to evade existing
personal liability." North American Clearing Inc., 2009 WL 1513389 at *7 (internal citations
omitted) (emphasis added). A court's power to pierce the corporate veil is to be exercised
reluctantly and cautiously. North American Clearing, Inc., 2009 WL 1513389 at *7 (M.D. Fla.
May 27,2009) (applying Florida law).
In this instance, Plaintiffs' have not even alleged BCI, JBP and/or RBTV are alter egos of
any Defendant or Plaintiff, but Plaintiffs seek economic damages from BPE and Browning for
actions allegedly attributable to BCI, JBP, and allegedly unformed RBTV (Complaint at 7 23).
Plaintiffs fail to offer well-pled facts concerning how Defendants used the corporate forms for
fraudulent, misleading or improper purposes. See North American Clearing 2009 WL 1513389
at *9 (holding plaintiff must offer well pled facts showing that defendant used corporate form
before disregarding the corporate entity).
The Operating Agreement has binding effect, an integration clause and is not intended to
create third party beneficiaries.See Operating Agreement at 18 and 19 §§ XVIII.D, H and I. The
agreement is clear:
Members and former Members shalllook solely to the Company's assets for return
of their Capital Contributions, and if the assets of the Company remaining after
payment ofor due provision for all debts, liabilitiesand obligations ofthe Company
are insufficient to return such
Capital Contributions, the Members and form
Members shall have no recourse against the Company or any other Member.
6
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
Operating Agreement at 18 § XVII.E. It is clear from the face of the Operating Agreement that
Plaintiff JBC has no recourse against the Defendants.
With regards to the Integration Agreement only signed by Jennifer Bradley (who is also a
50% manager of the allegedlyunformed RBTV)
Client shall not assign its rights and/or obligations under this Agreement ...
Nothing in this
Agreement shall be construed as conferring any rights or benefits
upon any person or other legal entitywho or which is not a party to this Agreement;
except as otherwise expressly provided herein. This Agreement may not be
. .
modified, supplemented, or amended or default or hereunder waived except upon
the execution and delivery of a written agreement signed by the authorized
representative of each party.
Integration Agreement § § 10.a, d and e. JBC has no rights or benefits under Integration Agreement
either and, therefore, no right to bring a breach of contract claim based on the Integration
Agreement.
Furthermore, regardless of whether or not the Articles of Organization for RBTV were
properly filed with the Florida Secretary of State, as Plaintiffs allege Browning failed to do, the
Plaintiffs cannot substitute one legal entity for another of their choosing or disregard the
Agreements as they are attempting to do. The Operating Agreement "prevails as to members,
dissociated members, transferees and managers" over effective conflicting filings and lack thereof
with the Department of State. Fla. Stat. § 605.0107(a). The record with the Department of State
only applies to third parties to the extent they "reasonablyrely" on them. Fla. Stat. § 605.0107(b).
Cf VGY Development, LLC v. 376 South Colony Realty Corporation,No. CV-65002733, 2007
WL 1675090 (Conn. Super. May 22, 2007) (holding that contract with unformed LLC was not
automatically rendered void where contract was executed by natural person with capacity to
contract, and LLC, once properly formed by filing of articles of organization, is empowered
thereafter to sue to enforce Count I should be dismissed, as JBC's alleged
7
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
claims against Defendants arising under the alleged Agreements are barred by the alleged
Agreements and JBC's lack of standing and contractual privity with Defendants. In the alternative,
the Complaint should be dismissed, because of the statute of frauds and JBC has failed to attach
the alleged contract to the Complaint as required by Fla. R. Civ. P. 1.130(a) and/or should be
required to make a more definite statement as the shotgun allegations ofthe Complaint are unclear.
2. Count II for Unjust Enrichment Against Both Defendants
Should Be Dismissed Because There is an Express Contract.
Count II for Unjust Enrichment incorporates allegations 1 -50 of the Complaint, which
include the alleged express contract in the form of the Operating Agreement and Integration
Agreement. Compl. 'Ilf 19, 24 and Compl. Exhibits A and B. Florida law is clear, the existence of
an express contract negates an action under an unjust enrichment theory. Braham v. Branch
Banking & Trust Co., 170 So. 3d 844, 848 (Fla. 5th DCA 2015). Unjust enrichment fails upon a
showing of an express contract. Williams v. Bear Stearns & Co., 715 So.2d 397,400 (Fla. 5th DCA
1998), rev. denied, 737 So.2d 550 (Fla. 1999). Where there is an express agreement,the contract controls
and a claim for unjust enrichment fails. Taylor, Bean & H/hitakerMortg. Co,p. v. GMC Morg. Co,p.,
2006 WL 4990903, *7 (Fla. M.D. Jun., 15 2006) (holding a claim for unjust enrichment fails when there
is an express contract). In light ofthe Agreements, both attached to the Complaint and incorporated
into Count II, the Plaintiff's Unjust Enrichment count must be dismissed.
3. Count III for Fraud against Defendant Browning Should
Be Dismissed As the Exhibits to The Complaint Make
That Count a Nullity and Plaintiffs Failed to Plead Fraud
With Particularitv.
As with the other counts in the Complaint, the exhibits to the Complaint render Count IV
for Fraud a nullity. Although "the Plaintiffs" allege that they were in Agreement with the
"Defendants" only JBC is a party to the Integration Agreement, and no one before the Court is
8
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
aparty to the Operating Agreement. Compl. 'Ilf 19, 24 and Compl. Exhibits A and B. Therefore,
only JBC was to Integrate in the RBTV's program, which is specifically referenced in the
..
Agreements. See Compl. Exhibit B ("RBTV shall integrate Client's Product, into the Program,'
with Client defined as JBC). Moreover, as set forth above, the Operating Agreement specifically
states:
Members and former Members shalllook solely to the Company's assets for return
of theirCapital Contributions, and if the assets of the
Company remaining after
payment ofor due provision for all debts, liabilitiesand obligations ofthe Company
are insufficient to return such Capital Contributions, the Members and form
Members shall have no recourse against the Company or any other Member.
Operating Agreement at 18 § XVII.E.
The Integration Agreement only signed by Jennifer Bradley (who according to the
Complaint is a 50% manager of the allegedlyunformed RBTV which is the other purported party
to that Integration Agreement) states:
Client shall not assign its rights and/or obligations under this Agreement ...
Nothing in this
Agreement shall be construed as conferring any rights or benefits
upon any person or other legal entitywho or which is not a party to this Agreement;
except as otherwise expressly provided herein. This Agreement may not be
. .
modified, supplemented, or amended or default or hereunder waived except upon
the execution and delivery of a written agreement signed by the authorized
representative of each party.
Integration Agreement § § 10.a, d and e. Moreover,
[a]s a general rule, fraud cannot be predicated on a mere promise not performed.
As stated in one case: 'To be available, there must be a false assertion in regard to
some existing matter by which a party is induced to part with his money or his
property. In morals, the failure to perform a promise may be without excuse or
justification; but, in law, false representations to authorize the rescission of a
contract must be made in regard to existing facts.'
Harrington v. Ruthedbrd, 38 Fla. 321,332,21 So. 283,285 (1896); Samplev. Ward, 156 Fla. 210,
218-19,23 So. 2d 81,85 (1945) (holding "[t]he decisions are to the effect that an oral promise to
9
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
do something in the future, though made by one party as a representationto induce anotherto enter
into a contract, is not fraud in a legal sense).
In the matter at bar, the Complaint admits that the actual parties were leasing an office
together for purposes of the RBTV operating agreement and that they advertised the program on
4
Plaintiff's website. Compl. 7 33. That is entirely inconsistentwith a claim for fraud.4
This Court should further dismiss Plaintiffs' fraud claim because Plaintiffs have failed to
allege fraud with sufficientparticularity. To state a claim for fraud under Florida law, a plaintiff
must plead that plaintiff was victim o f intentional misrepresentations,that plaintiff relied on those
misrepresentations,that plaintiff was damaged as result of those misrepresentations,and that the
misrepresentations caused damage. Lance v. Wade, 451 So.2d 1008, 1011 (Fla. 1984). "In all
averments of fraud... the circumstances constituting fraud... shall be stated with such
particularityas the circumstancesmaypermit." Fla. R. Civ. P. 1.120. When fraud is asserted, facts
and circumstances constituting fraud must be plead with specificity. Peninsular Florida Dist.
Council of Assemblies of God v. Pan American Inv. and DevelopmentCorp. 450 So.ld 1131 (Ba.
4th DCA 1984).
For example, a complaint where a plaintiff alleged: that a defendant defrauded plaintiff of
approximately $12,000 in cash and items that plaintiffpurchased for defendant; that defendanthad
possession of plaintiff's truck; and defendant had "fraudulently" secured a loan from bank by
representing that title to the truck was in both parties' names, did not allege fraud with sufficient
4
Given the contradictionswithinthe Complaint, allowing Plaintiffs to amend the Complaint would
be futile. Leave to amend a Complaint should be denied where amendment would be futile.
Thompson v. Bank ofNew York, 862 So.2d 768,770 (Fla. 4th DCA 2003). "A trial court should
give leave to amend a deficient complaint unless ...the complaint shows on its face that there is
deficiency which cannot be cured by amendment." See Grove Isle Ass'n,, Inc. v. Grove Isle
Associates, 137 So.3d 1081, 1090 (Fla. 3d DCA 2014) (quoting Unitech Corp.. v. Atl. Nat 7 Bank
ofMiami, 472 So.2d 817, 818 (Fla. 3d DCA 1985)).
10
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
particularity. Myers v.
Myers, 652 So.2d 1214 (Fla. 5th DCA 1995). Thus, allegations of fraud
contained in a
pleading are insufficientif they are too general, vague, or
conclusory. Id.; Moore
v. Purvis, 194 So.2d 67 (Fla. 3d DCA 1967) (holding conclusions ofpleader insufficientto allege
fraud). Pleading ultimate facts alone is insufficient for a claim of fraud to survive a motion to
dismiss. Lytell v. McGahey Chrysler-Plymouth,Inc., 180 So.2d 354 (Fla. 3d DCA 1965); Gordon
v. Etue, Wardlaw & Co., P.A., 511 So.2d 384 (Fla. lst DCA 1987). Thus, a
complaint identifying
only the subject matter of alleged false representationsshould be dismissed. Batlemento v. Dove
Fountain, Inc., 593 So.2d 234 (Fla. 5th DCA 1991), review denied 601 So.2d 551.
In the matter at bar, Plaintiffs do not even generally identify any misrepresentations made
by Defendants, but rather Plaintiffs state that "Defendant, Browning, made false representations
of fact that BPE, a subsidiary of a publicly traded company, would produce the Program, would
develop at least six twenty-one minute episodes to be hosted by Jennifer Bradley and aired in the
second quarter of 2020 to promote and market Jennifer Bradley, JBC and its products." Compl. 7
67. This allegation is both vague and constitutes a promise to do something in the future, namely
produce a program. This allegation is insufficientto satisfy the pleadings needed to state a claim
for fraud.
Furthermore, Bradley does not explain how Bradley was damaged by fraud, other than as
economic damages under the Agreements. Bradley's baseless conclusions lack any facts or
substance to support them.
Had Plaintiffs' properly pled Fraud only JBC and not Bradley, can legally make a claim to
any inducement, because the only inducement alleged, was inducement into the Integration
Agreement, which Bradley was not a party to. See Compl. 1[72 and Compl. Exhibit B. Second, in
light ofthe actual terms ofthe Integration Agreement entered into between the JBC and the RBTV,
11
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
which encompasses the scope of their agreement, no fraudulentinducement claim can lie even by
JBC as against non-party RBTV. As a result, the fraud count must be dismissed.
As it relates to Count IV for Fraud, this count is not pled with particularity as to any
cognizable fraud. Failing to plead with particularityis legally deficient and grounds for dismissal.
See Fla. R. Civ. P. 1.120(b); Midway Shopping Mall v. Airtech Air Conditioning, 253 So.2d 900
(Fla. 3d DCA 1971 ). The fraud count, like other counts in the Complaint, lumps both the corporate
defendant and individual defendant togetherthrough conclusory allegations. Consequently, Count
III for fraud should be dismissed with prejudice.
4. Counts III and IV for Conversion and Civil Theft Should
Be Dismissed Because They Are Negated By the
Contracts and There is No Factual Support in The
Complaint For Plaintiff's Claims.
The Complaint sets forth that "funds" were paid on various occasions to have the Plaintiff' s
products integrated into the RBTV program and that the parties allegedly sublet an office for
RBTV. Compl. 17 19, 24, 32, 33 and Comp. Exhibit A and Exhibit B. The funds allegedlypaid
pursuant to Operating Agreement and the Integration Agreement are the subject of all of the "the
Plaintiffs" Conversion and Civil Theft claims However, the Complaint makes references to
exhibits that show that in fact the Operating Agreement has binding effect, an integration clause
and is not intended to create third party beneficiaries. +Operating Agreement § § XVIII.D, H and
I. The Operating Agreement is clear:
Members and former Members shalllook solely to the Company's assets for return
of theirCapital Contributions, and if the assets of the Company remaining after
payment ofor due provision for all debts, liabilitiesand obligations ofthe Company
are insufficient to return such Capital Contributions, the Members and form
Members shall have no recourse against the Company or any other Member.
Operating Agreement § XVII.E.
12
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
With regards to the Integration Agreement only signed by Jennifer Bradley (who is also a
50% manager of the allegedlyunformed RBTV)
Client shall not assign its rights and/or obligations under this Agreement ...
Nothing in this
Agreement shall be construed as conferring any rights or benefits
upon any person or other legal entitywho or which is not a party to this Agreement;
except as otherwise expressly provided herein. This Agreement may not be
. .
modified, supplemented, or amended or default or hereunder waived except upon
the execution and delivery of a written agreement signed by the authorized
representative of each party.
Integration Agreement §§ 10.a, d and e. Compl. 'Ilf 19,24 and Compl. Exhibit A and Exhibit B
Civil theft is essentially a conversion in which the defendant acted with criminal intent.
Gasparini v. Pordomingo,971So.2d 1053, 1056 (Fla. 3d DCA 2008). To state a claim for civil
theft, the plaintiff must allege that the defendant knowingly obtained or used, or endeavored to
obtain or use the plaintiffs property with intent to either temporarily or permanently (1) deprive
the plaintiff of his right to or a benefit from the property or (2) appropriate the property to the
defendant's own use or to the use of any person not entitled to the property. Fla. Stat. §§ 772.11,
812.014. "The [allegationsl of civil theft or conversion must go beyond, and be independent from,
a failure to comply with the terms of a contract." Walker v. Figarola, 59 So.3d 188, 190 (Fla. 3d.
DCA 2011) (quoting Gasparini v. Pordomingo, 972 So.2d at 1055).
In the matter at bar, the Civil Theft Letter lacks any substance and constitutes nothing more
than a legal conclusion. Compl. Exhibit D. Absent sufficient specificity, the Civil Theft Letter
cannot formthebasis ofthe Civil Theft count. See Fla. R. Civ. P. 1.120(b); Midway Shopping
Mall v. Airtech Air Conditioning, 253 So.2d 900 (Fla. 3d DCA 1971) (failing to plead with
particularityis legally deficient and grounds for dismissal).
Florida Law is clear that an action for civil theft cannot be brought to seek relief for what
is, in essence nothing more than an alleged breach of contract. See, Sanchez v. Encinas, 627 So.
13
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
2d 489 (Fla. 3d DCA 1993) (holding contractual dispute negates any claim for civil theft);
Gasperini v. Bordamingo, 972 So. 2d 1055 (Fla. 4th DCA 2006) (holding if there is a contractual
relationship between the parties, no claim for civil theft will lie absent allegations establishing an
independent tort that goes beyond an alleged failure to comply with the terms of a contract); See
also Florida DeskInc. 817 So. 2d 1060 (Fla 5th DCA 2006) (the tort ofcivil theft is not committed
by the mere failure to pay monies contractually due).
In this matter, Plaintiffs' claims for civil theft are nothing more than a reiterationof their
breach of contract claim disguised as a "civil theft." Indeed, the claims for civil theft and breach
of contract allege the exact same parties, the exact same action (i.e. alleged failure to perform).
See, generally, Compl. lili 51-59, 77-82.
Here, Plaintiff repeatedly admits to the existence of a written agreement. Paragraphs 19
and 24-26 of the Complaint, which are expressly incorporated into all counts of the Complaint
contain direct references to the underlying contractual relationship between the Plaintiff and
other non-parties that expressly preclude this action. See, generally, Compl.
Further, the Operating Agreement, attached to Plaintiff's Complaint as Exhibit A defines
the contractual relationship in no uncertain terms and is repugnant to the cause of action to civil
theft and unjust enrichment. Florida Rule of Civil Procedure 1.130(b) makes clear that "[a]ny
exhibit attached to a pleading shall be considered a part thereof for all purposes ."
-- It is well
established that where there is an inconsistency between the general allegations of material facts
in a complaint and the specific facts revealed by an exhibit, they have the effect of neutralizing
each allegation, and the complaint should be dismissed for failure to state a cognizable claim. See
Harry Pepper and Assocs., Inc. v. Lasseter,247 So. 2d 736 (Yla. 3d DCA 1971), cert. denied, 252
So. 2d 797 (Fla. 1971). Consequently, because Exhibit A to the Complaint contradicts the
14
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
allegations in the Complaint, Plaintiff's Complaint fails to state a cause of action for civil theft,
and should be dismissed for failure to state a cause of action pursuant to Fla. R. Civ. P. 1.120 and
1.140(b)(6).
Plaintiffs fail to show any traceable money. Compl. 19 22, 28. All claims for conversion
of cash must show traceable funds and an obligation to pay the claimant "identical moneys" to
which respondent collected. Belford Trucking Co. v. Zagar, 143 So.2d 646,648 (Fla. 4th DCA
1970). Money is only capable of identificationfor an action in conversion "where it is delivered
at one time, by one act and in one mass, or where the deposit is special and the identical money is
to be kept for the party making the deposit, or where wrongful possession of such property is
obtained." U. According to the Complaint, Plaintiffs made six payments pursuant to the
Agreements delivered at different times to BPEP. Compl. 7 32. Plaintiffs have not pled how,
when, or in what manner Defendants "converted" those specific payments. Consequently,
Plaintiffs has not sufficientlyalleged fraud or conversion against Defendants, and the Complaint
against the Defendants should be dismissed with prejudice accordingly.
5. Count VI Declaratory Action Should Be Dismissed With
Prejudice Because Agreements Attached to
the
Complaint Nullify the Complaint and There is No Legal
Dispute Between the Parties Before the Court.
In Count VI of the Complaint, Bradley seeks a declaration that RBTV, LLC is not a
legitimate organization under the laws of Florida because it alleges that RBTV's articles of
organization have never been filed with the Florida Secretary of State. Compl. 17 85-93. Bradley
brings this claim against both Defendants. Ibid Count VI should be dismissed with prejudice
5
"A obligationto pay money may not be enforced by a conversion action." Be#brd Trucking
mere
Co., (holding that "an action in tort is inappropriatewhere the basis ofthe suit is
243 So.2d at 648
a contract, either express or implied").
15
ASSOULINE & BERLOWE, P.A.
2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566
,
because the Agreements nullify the allegations in the Complaint and there is no actual legal dispute
between the parties before the Court.
In order to survive a motion to dismiss, a count for declaratory relief must allege each of
the following elements with supporting ultimate facts:
1. there is a bona fide, actual, present practical need for the declaration
("a bona fide need");
2. that the declaration should deal with a present, ascertained or ascertainable
state of facts or present controversy as to a state of facts;
3. that some
immunity, power, privilege or right of the complaining party is
dependentupon the facts or the law applicable to the facts;
4. that there is some person or persons who have, or reasonably may have an
actual, present, adverse and antagonistic interest in the subject matter, either
in fact or law ("antagonisticinterest");
5. thatthe antagonistic and adverse interest[sl are all before the court by proper
process or class representation("all parties are present"); and
6. that the relief sought is not merely giving of legal advice by the courts or
the answer to questions propounded from curiosity ("not giving legal
advice").
See People's Tr. Ins. Co. v. Franco, 2020 Fla. App. LEXIS 5028, *7 (Fla. 3d DCA April 15, 2020).
Each of these elements are necessary in order to maintain the status of the proceeding as being
judicial in nature and thereforewithin the constitutional powers of the courts. Id.
Moreover, to survive a motion to dismiss, Plaintiff must allege "sufficient ultimate facts"
entitling it to relief. See Stein v. BBX Cap. Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018)
(citations omitted); Wausau Ins. Co. v.
Haynes, 683 So. 2d 1123, 1124 (Fla. 4th DCA 1996) (test
for motion under Rule 1.140(b)(6) is whether party can prove any set of facts to support claims).
Speculative or conclusory allegations are insufficient. Stein, 241 So. 3d at 876 (citations omitted).
Additionally, "considerable deference"is accorded a trial court's order dismissing a count
for a declaratoryjudgment and such a decision will not be disturbed except if the trial court is
found to have abused its discretion. Asself v. Citizens Prop. Ins., 159 So. 3d 327, 329
(Fla. 1st DCA 2015).
16
ASSOULINE & BERLOWE, P.A.
Preview
Filing # 132649114 E-Filed 08/13/2021 02:15:58 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.. CACE- 21- 010368 JENNIFER BRADLEY, individually, and JENNIFER BRADLEY CORPORATION, INC. a Florida Corporation, Plaintiffs, V WILLIAM BROWNING, individually and BROWNING PRODUCTIONS AND ENTERTAINMENT, INC., a Florida Corporation Defendants. i DEFENDANTS' MOTION TO DISMISS AND/OR FOR MORE DEFINITE STATEMENT Defendants, William Browning ("Browning") and Browning Productions and Entertainment, Inc. ("BPE") (collectivelythe "Defendants"), pursuant to Fla. R. Civ. P. 1.140(b) move this Court for entry of an order dismissing the Complaint filed by Plaintiffs, Jennifer Bradley("Bradley")and JenniferBradley Corporation, Inc. ("JBC") (collectivelythe "Plaintiffs") or in the alternative for a more definite statement. The grounds for this motion are as follows: PRELIMINARY STATEMENT Neither of the Defendants are party to any agreement attached to the Complaint. Florida law is clear that any time exhibits to a complaint contradict the allegations in the complaint, the exhibits control. Rolling Oaks Homeowner 's Ass'n, Inc. v. Dade County, 491 So.2d 686,688 (Fla. 3d DCA 1986). If the allegations are contradicted by the exhibits, the exhibits render the allegations in the complaint a nullity. Venezia Lakes Homeowners Ass'n, Inc. v. CSX Transp., ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 08/13/2021 02:15:57 PM.**** Inc.,43 So.3d 93,95 (Fla. 3d DCA 1010) citing American Seafood, Inc. v. Clawson, 59% So.2d 273 (Fla. 3d DCA 1992). Here, most ofthe substantive allegations in the Complaint conflictwith the exhibits to the Complaint. As a result, the claims set forth are rendered a nullity and the Complaint should be dismissed. BACKGROUND 1. On May 24,2021, Plaintiffs filed their Complaint against Defendantsfor six counts: i) Breach of Contract; ii) Unjust Enrichment; iii) Fraud; iv) Civil Theft; v) Conversion; and, vi) DeclaratoryJudgment. 2. Attached to the Complaint as Exhibit A, is a Manager Managed Limited Liability Company Operating Agreement dated Dec. 9, 2019 (the "Operating Agreement") between non- parties Raw Beauty TV, LLC ("RBTV"), Jennifer Bradley Productions, LLC ("JBP") and Browning Companies International, LLC ("BCI"). According to the Operating Agreement 1 Jennifer Bradley is a manager of RBTVand JBP is a 50% owner of RBTV. Operating Agreement Schedule "A", Schedule "B". 3. Attached to the Complaint as Exhibit B is a Letter of Intent for JBC for TV Series Brand Integration that includes an integration agreement (the "IntegrationAgreement") between non-paro' RBTV and JBC.2 The Integration Agreement is only signed by Jennifer Bradley. 1 Although it is not stated in the Complaint, it should be noted that attorney Cohen and the law firm of Wicker Smith O'Hara McCoy & Ford, P.A. represented Raw Beauty TV, LLC, Jennifer Bradley Productions, LLC and Browning Companies International,LLC in the drafting of at least the Operating Agreement and Integration Agreement attached to the Complaint. See, generally Fla. Bar. Rules 4-1.7; 4-1.8; and, 4-1.9 (Florida Bar Rules governing conflicts of interest). 2 Although not apparent from the Complaint, attorney Cohen and the law firm of Wicker Smith O'Hara McCoy & Ford, P.A. represented Raw Beauty TV, LLC and Jennifer Bradley Productions, LLC in the drafting of the Letter of Intent and Integration Agreement that are only signed by Jennifer Bradley. 2 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , MEMORANDUM OF LAW A motion to dismiss tests whether the Plaintiffhas stated a cause o f action. Bell v. Indian River Memorial Hospital, 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001). In considering the merits of a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the facts alleged therein as true. Taylor v. City of Riviera Beach, %01 So. 2d 259,262 (Fla. 4th DCA 2001), rev. denied 821 So. 2d 293 (Fla. 2002). However, to state a cause of action, the complaint must set forth sufficientultimate facts to show that the plaintiff is entitled to the relief sought. Id. A. All Counts to the ComplaintAre Negated By the Exhibits Thereto And Should Be Dismissed With Preiudice. An exhibit attached to a complaint may be considered on a motion to dismiss and can negate a cause of action. Fladell v. Palm Beach County Canvassing Board, 772 So. 2d 1240, 1242 (Fla. 2000); Shumrakv. Broken Sound Club, Inc., %98 So. 2d 1018, 1020 (Fla. 4th DCA 2005). 1. Count I Should Be Dismissed with Prejudice Because the Plaintiffs Lack Standing and the Defendants are not Parties to the Alleged Contracts. As set forth above, none of the alleged agreements attached to the Complaint involve Defendants. Furthermore, JBC is not a party to the Operating Agreement and has no standing to enforce it. Khan v. Bank ofblmerica, 58 So.3d 927, 928 (Fla. 5th DCA 2011) (holding thatthe note attached to the complaint evidenced who was the proper party to have standing as a matter of law). Count I ofthe Complaint is for Breach of Contract by JBC against the Defendants. Compl. lili 51-59. There are two written agreements attached to the Complaint, the Operating Agreement and the Integration Agreement (the "Agreements"). Compl. Exhibit A, Exhibit B. Additionally, Plaintiffs allege the existence of an unwritten sub-lease of office space between JBC and Defendants. Compl. f 34. In Count I, Plaintiff JBC alleges that "Plaintiffand Defendant entered 3 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , .. into a valid enforceable contract for the production of the Program by Defendants' (the "Alleged Production Contract") and that Defendant JBC breached that contract by failing to produce and develop the Program. Compl. 'Ilf 52,56. However, the Alleged Production Contract is not attached to the Complaint as required by Fla. R. Civ. P. 1.130. JBC's breach of contract claim is unclear as to which agreement(s)were allegedlybreached. It would appear that instead of enforcing the Operating Agreement and the Integration Agreement against the parties to those Agreements, JBC has disregarded those agreements, in order to wrongfully sue JBC and Mr. Browning, personally under the oral Alleged Production Contract. If any ofthe non-partiesto this action, JBP, RBTV and/or BCI believe they are entitled to relief pursuant to the alleged agreements attached to the Complaint, those parties should bring an action against the party to the Agreements that they allege committed a breach. None of the Defendants are parties to either of the written Agreements attached to the Complaint. The Plaintiffs' have brought suit against parties not in privity with them, under contracts and transactions to which Defendants and Plaintiffs are not parties, and the Plaintiffs have failed to join indispensable parties JBP, RBTV and BCI. Moreover, Florida's statute of frauds prohibits any action brought whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person or to charge any person upon any agreement... for any lease thereof for period longer than 1 year, or upon any agreement that is not to be performed within the space of 1 year of the making thereof... unless the agreement or promise upon which such action shall be brought... in writing signed by the party to be charged therewith. Fla. Stat. § 725.01. Therefore, the Alleged Production Contract cannot be enforced as there is no corresponding signed writing that would take the Alleged Production Contract out of the statute 4 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , of frauds. 3 The Operating Agreement and Integration Agreement cannot take the Alleged Production out of the statute of frauds because they are not signed by the parties being charged in this lawsuit. A party seeking to litigate a dispute has the initial threshold burden to establish that there is legal dispute between the parties before the court, for which the court has jurisdiction to decide. Snyder v. McLeod, 971 So.2d 166, 168 (Fla. 5th DCA 2007). Plaintiffs have failed to establish a legal dispute between the "parties before the court" that the court may decide since none of the Defendants are parties to any ofthe Agreements. Furthermore, "[a] basic tenet of American Corporate law is that the corporation and its shareholders are distinct entities."NorthAmerican Clearing, Inc. v. Brokerage Computer Systems, Inc. 2009 WL 1513389, *7 (M.D. Fla. May 27, 2009) citing Dole Food Co. v. Patrickson, 536 U.S. 468,474 (2003). It is a claimant's burden to pierce the corporate veil before it may litigate claims that rely on veil piercing. Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114,1120 (Fla. 1984); ARW Exploration Corporationv. Armenis, 45 F.3d 1455, 1460-1461 (10th Cir. 1995). To disregard BPE's corporate existence, BCI and JBP, both Plaintiffs needs to pierce the corporate veil and show that BPE, BCI and JBP are shams and exists for no other purpose than as a vehicle for fraud. Dania Jai-Alai Palace, Inc., 450 So.2d 1114 at 1120. Plaintiffs have not, and based upon the facts already pled, cannot do that. 3 It should be noted that although Bradley admits she personally guaranteed a commercial loan to fund the integration agreement for RBTV there isallegation in the Complaint that any other no Defendant signed any personal guarantee. Compl. 7 31. Bradley also admits she failed to fully fund RBTV as agreed and contends that RBTV was operating out of a shared space that she allegedly provided to RBTV under an unwritten sublease for $27,000.0 which according the Plaintiffis $2,000.00 for (13.5) months. Compl. 7 33. 5 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , The corporate veil may only be pierced upon proof that a corporation "it is in actuality an alter ego of the stockholders" and "it was organized or after organization was employed by the stockholders for fraudulent or misleading purposes." Dania Jai-Alai Palace, Inc., 450 So.2d at 1120 (internal quotations omitted). The fraudulent or misleading purposes may exist only "where the corporation was employed by the stockholders for fraudulent or misleading purposes, was organized or used to mislead creditors or to perpetrate a fraud upon them, or to evade existing personal liability." North American Clearing Inc., 2009 WL 1513389 at *7 (internal citations omitted) (emphasis added). A court's power to pierce the corporate veil is to be exercised reluctantly and cautiously. North American Clearing, Inc., 2009 WL 1513389 at *7 (M.D. Fla. May 27,2009) (applying Florida law). In this instance, Plaintiffs' have not even alleged BCI, JBP and/or RBTV are alter egos of any Defendant or Plaintiff, but Plaintiffs seek economic damages from BPE and Browning for actions allegedly attributable to BCI, JBP, and allegedly unformed RBTV (Complaint at 7 23). Plaintiffs fail to offer well-pled facts concerning how Defendants used the corporate forms for fraudulent, misleading or improper purposes. See North American Clearing 2009 WL 1513389 at *9 (holding plaintiff must offer well pled facts showing that defendant used corporate form before disregarding the corporate entity). The Operating Agreement has binding effect, an integration clause and is not intended to create third party beneficiaries.See Operating Agreement at 18 and 19 §§ XVIII.D, H and I. The agreement is clear: Members and former Members shalllook solely to the Company's assets for return of their Capital Contributions, and if the assets of the Company remaining after payment ofor due provision for all debts, liabilitiesand obligations ofthe Company are insufficient to return such Capital Contributions, the Members and form Members shall have no recourse against the Company or any other Member. 6 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , Operating Agreement at 18 § XVII.E. It is clear from the face of the Operating Agreement that Plaintiff JBC has no recourse against the Defendants. With regards to the Integration Agreement only signed by Jennifer Bradley (who is also a 50% manager of the allegedlyunformed RBTV) Client shall not assign its rights and/or obligations under this Agreement ... Nothing in this Agreement shall be construed as conferring any rights or benefits upon any person or other legal entitywho or which is not a party to this Agreement; except as otherwise expressly provided herein. This Agreement may not be . . modified, supplemented, or amended or default or hereunder waived except upon the execution and delivery of a written agreement signed by the authorized representative of each party. Integration Agreement § § 10.a, d and e. JBC has no rights or benefits under Integration Agreement either and, therefore, no right to bring a breach of contract claim based on the Integration Agreement. Furthermore, regardless of whether or not the Articles of Organization for RBTV were properly filed with the Florida Secretary of State, as Plaintiffs allege Browning failed to do, the Plaintiffs cannot substitute one legal entity for another of their choosing or disregard the Agreements as they are attempting to do. The Operating Agreement "prevails as to members, dissociated members, transferees and managers" over effective conflicting filings and lack thereof with the Department of State. Fla. Stat. § 605.0107(a). The record with the Department of State only applies to third parties to the extent they "reasonablyrely" on them. Fla. Stat. § 605.0107(b). Cf VGY Development, LLC v. 376 South Colony Realty Corporation,No. CV-65002733, 2007 WL 1675090 (Conn. Super. May 22, 2007) (holding that contract with unformed LLC was not automatically rendered void where contract was executed by natural person with capacity to contract, and LLC, once properly formed by filing of articles of organization, is empowered thereafter to sue to enforce Count I should be dismissed, as JBC's alleged 7 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , claims against Defendants arising under the alleged Agreements are barred by the alleged Agreements and JBC's lack of standing and contractual privity with Defendants. In the alternative, the Complaint should be dismissed, because of the statute of frauds and JBC has failed to attach the alleged contract to the Complaint as required by Fla. R. Civ. P. 1.130(a) and/or should be required to make a more definite statement as the shotgun allegations ofthe Complaint are unclear. 2. Count II for Unjust Enrichment Against Both Defendants Should Be Dismissed Because There is an Express Contract. Count II for Unjust Enrichment incorporates allegations 1 -50 of the Complaint, which include the alleged express contract in the form of the Operating Agreement and Integration Agreement. Compl. 'Ilf 19, 24 and Compl. Exhibits A and B. Florida law is clear, the existence of an express contract negates an action under an unjust enrichment theory. Braham v. Branch Banking & Trust Co., 170 So. 3d 844, 848 (Fla. 5th DCA 2015). Unjust enrichment fails upon a showing of an express contract. Williams v. Bear Stearns & Co., 715 So.2d 397,400 (Fla. 5th DCA 1998), rev. denied, 737 So.2d 550 (Fla. 1999). Where there is an express agreement,the contract controls and a claim for unjust enrichment fails. Taylor, Bean & H/hitakerMortg. Co,p. v. GMC Morg. Co,p., 2006 WL 4990903, *7 (Fla. M.D. Jun., 15 2006) (holding a claim for unjust enrichment fails when there is an express contract). In light ofthe Agreements, both attached to the Complaint and incorporated into Count II, the Plaintiff's Unjust Enrichment count must be dismissed. 3. Count III for Fraud against Defendant Browning Should Be Dismissed As the Exhibits to The Complaint Make That Count a Nullity and Plaintiffs Failed to Plead Fraud With Particularitv. As with the other counts in the Complaint, the exhibits to the Complaint render Count IV for Fraud a nullity. Although "the Plaintiffs" allege that they were in Agreement with the "Defendants" only JBC is a party to the Integration Agreement, and no one before the Court is 8 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , aparty to the Operating Agreement. Compl. 'Ilf 19, 24 and Compl. Exhibits A and B. Therefore, only JBC was to Integrate in the RBTV's program, which is specifically referenced in the .. Agreements. See Compl. Exhibit B ("RBTV shall integrate Client's Product, into the Program,' with Client defined as JBC). Moreover, as set forth above, the Operating Agreement specifically states: Members and former Members shalllook solely to the Company's assets for return of theirCapital Contributions, and if the assets of the Company remaining after payment ofor due provision for all debts, liabilitiesand obligations ofthe Company are insufficient to return such Capital Contributions, the Members and form Members shall have no recourse against the Company or any other Member. Operating Agreement at 18 § XVII.E. The Integration Agreement only signed by Jennifer Bradley (who according to the Complaint is a 50% manager of the allegedlyunformed RBTV which is the other purported party to that Integration Agreement) states: Client shall not assign its rights and/or obligations under this Agreement ... Nothing in this Agreement shall be construed as conferring any rights or benefits upon any person or other legal entitywho or which is not a party to this Agreement; except as otherwise expressly provided herein. This Agreement may not be . . modified, supplemented, or amended or default or hereunder waived except upon the execution and delivery of a written agreement signed by the authorized representative of each party. Integration Agreement § § 10.a, d and e. Moreover, [a]s a general rule, fraud cannot be predicated on a mere promise not performed. As stated in one case: 'To be available, there must be a false assertion in regard to some existing matter by which a party is induced to part with his money or his property. In morals, the failure to perform a promise may be without excuse or justification; but, in law, false representations to authorize the rescission of a contract must be made in regard to existing facts.' Harrington v. Ruthedbrd, 38 Fla. 321,332,21 So. 283,285 (1896); Samplev. Ward, 156 Fla. 210, 218-19,23 So. 2d 81,85 (1945) (holding "[t]he decisions are to the effect that an oral promise to 9 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , do something in the future, though made by one party as a representationto induce anotherto enter into a contract, is not fraud in a legal sense). In the matter at bar, the Complaint admits that the actual parties were leasing an office together for purposes of the RBTV operating agreement and that they advertised the program on 4 Plaintiff's website. Compl. 7 33. That is entirely inconsistentwith a claim for fraud.4 This Court should further dismiss Plaintiffs' fraud claim because Plaintiffs have failed to allege fraud with sufficientparticularity. To state a claim for fraud under Florida law, a plaintiff must plead that plaintiff was victim o f intentional misrepresentations,that plaintiff relied on those misrepresentations,that plaintiff was damaged as result of those misrepresentations,and that the misrepresentations caused damage. Lance v. Wade, 451 So.2d 1008, 1011 (Fla. 1984). "In all averments of fraud... the circumstances constituting fraud... shall be stated with such particularityas the circumstancesmaypermit." Fla. R. Civ. P. 1.120. When fraud is asserted, facts and circumstances constituting fraud must be plead with specificity. Peninsular Florida Dist. Council of Assemblies of God v. Pan American Inv. and DevelopmentCorp. 450 So.ld 1131 (Ba. 4th DCA 1984). For example, a complaint where a plaintiff alleged: that a defendant defrauded plaintiff of approximately $12,000 in cash and items that plaintiffpurchased for defendant; that defendanthad possession of plaintiff's truck; and defendant had "fraudulently" secured a loan from bank by representing that title to the truck was in both parties' names, did not allege fraud with sufficient 4 Given the contradictionswithinthe Complaint, allowing Plaintiffs to amend the Complaint would be futile. Leave to amend a Complaint should be denied where amendment would be futile. Thompson v. Bank ofNew York, 862 So.2d 768,770 (Fla. 4th DCA 2003). "A trial court should give leave to amend a deficient complaint unless ...the complaint shows on its face that there is deficiency which cannot be cured by amendment." See Grove Isle Ass'n,, Inc. v. Grove Isle Associates, 137 So.3d 1081, 1090 (Fla. 3d DCA 2014) (quoting Unitech Corp.. v. Atl. Nat 7 Bank ofMiami, 472 So.2d 817, 818 (Fla. 3d DCA 1985)). 10 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , particularity. Myers v. Myers, 652 So.2d 1214 (Fla. 5th DCA 1995). Thus, allegations of fraud contained in a pleading are insufficientif they are too general, vague, or conclusory. Id.; Moore v. Purvis, 194 So.2d 67 (Fla. 3d DCA 1967) (holding conclusions ofpleader insufficientto allege fraud). Pleading ultimate facts alone is insufficient for a claim of fraud to survive a motion to dismiss. Lytell v. McGahey Chrysler-Plymouth,Inc., 180 So.2d 354 (Fla. 3d DCA 1965); Gordon v. Etue, Wardlaw & Co., P.A., 511 So.2d 384 (Fla. lst DCA 1987). Thus, a complaint identifying only the subject matter of alleged false representationsshould be dismissed. Batlemento v. Dove Fountain, Inc., 593 So.2d 234 (Fla. 5th DCA 1991), review denied 601 So.2d 551. In the matter at bar, Plaintiffs do not even generally identify any misrepresentations made by Defendants, but rather Plaintiffs state that "Defendant, Browning, made false representations of fact that BPE, a subsidiary of a publicly traded company, would produce the Program, would develop at least six twenty-one minute episodes to be hosted by Jennifer Bradley and aired in the second quarter of 2020 to promote and market Jennifer Bradley, JBC and its products." Compl. 7 67. This allegation is both vague and constitutes a promise to do something in the future, namely produce a program. This allegation is insufficientto satisfy the pleadings needed to state a claim for fraud. Furthermore, Bradley does not explain how Bradley was damaged by fraud, other than as economic damages under the Agreements. Bradley's baseless conclusions lack any facts or substance to support them. Had Plaintiffs' properly pled Fraud only JBC and not Bradley, can legally make a claim to any inducement, because the only inducement alleged, was inducement into the Integration Agreement, which Bradley was not a party to. See Compl. 1[72 and Compl. Exhibit B. Second, in light ofthe actual terms ofthe Integration Agreement entered into between the JBC and the RBTV, 11 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , which encompasses the scope of their agreement, no fraudulentinducement claim can lie even by JBC as against non-party RBTV. As a result, the fraud count must be dismissed. As it relates to Count IV for Fraud, this count is not pled with particularity as to any cognizable fraud. Failing to plead with particularityis legally deficient and grounds for dismissal. See Fla. R. Civ. P. 1.120(b); Midway Shopping Mall v. Airtech Air Conditioning, 253 So.2d 900 (Fla. 3d DCA 1971 ). The fraud count, like other counts in the Complaint, lumps both the corporate defendant and individual defendant togetherthrough conclusory allegations. Consequently, Count III for fraud should be dismissed with prejudice. 4. Counts III and IV for Conversion and Civil Theft Should Be Dismissed Because They Are Negated By the Contracts and There is No Factual Support in The Complaint For Plaintiff's Claims. The Complaint sets forth that "funds" were paid on various occasions to have the Plaintiff' s products integrated into the RBTV program and that the parties allegedly sublet an office for RBTV. Compl. 17 19, 24, 32, 33 and Comp. Exhibit A and Exhibit B. The funds allegedlypaid pursuant to Operating Agreement and the Integration Agreement are the subject of all of the "the Plaintiffs" Conversion and Civil Theft claims However, the Complaint makes references to exhibits that show that in fact the Operating Agreement has binding effect, an integration clause and is not intended to create third party beneficiaries. +Operating Agreement § § XVIII.D, H and I. The Operating Agreement is clear: Members and former Members shalllook solely to the Company's assets for return of theirCapital Contributions, and if the assets of the Company remaining after payment ofor due provision for all debts, liabilitiesand obligations ofthe Company are insufficient to return such Capital Contributions, the Members and form Members shall have no recourse against the Company or any other Member. Operating Agreement § XVII.E. 12 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , With regards to the Integration Agreement only signed by Jennifer Bradley (who is also a 50% manager of the allegedlyunformed RBTV) Client shall not assign its rights and/or obligations under this Agreement ... Nothing in this Agreement shall be construed as conferring any rights or benefits upon any person or other legal entitywho or which is not a party to this Agreement; except as otherwise expressly provided herein. This Agreement may not be . . modified, supplemented, or amended or default or hereunder waived except upon the execution and delivery of a written agreement signed by the authorized representative of each party. Integration Agreement §§ 10.a, d and e. Compl. 'Ilf 19,24 and Compl. Exhibit A and Exhibit B Civil theft is essentially a conversion in which the defendant acted with criminal intent. Gasparini v. Pordomingo,971So.2d 1053, 1056 (Fla. 3d DCA 2008). To state a claim for civil theft, the plaintiff must allege that the defendant knowingly obtained or used, or endeavored to obtain or use the plaintiffs property with intent to either temporarily or permanently (1) deprive the plaintiff of his right to or a benefit from the property or (2) appropriate the property to the defendant's own use or to the use of any person not entitled to the property. Fla. Stat. §§ 772.11, 812.014. "The [allegationsl of civil theft or conversion must go beyond, and be independent from, a failure to comply with the terms of a contract." Walker v. Figarola, 59 So.3d 188, 190 (Fla. 3d. DCA 2011) (quoting Gasparini v. Pordomingo, 972 So.2d at 1055). In the matter at bar, the Civil Theft Letter lacks any substance and constitutes nothing more than a legal conclusion. Compl. Exhibit D. Absent sufficient specificity, the Civil Theft Letter cannot formthebasis ofthe Civil Theft count. See Fla. R. Civ. P. 1.120(b); Midway Shopping Mall v. Airtech Air Conditioning, 253 So.2d 900 (Fla. 3d DCA 1971) (failing to plead with particularityis legally deficient and grounds for dismissal). Florida Law is clear that an action for civil theft cannot be brought to seek relief for what is, in essence nothing more than an alleged breach of contract. See, Sanchez v. Encinas, 627 So. 13 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , 2d 489 (Fla. 3d DCA 1993) (holding contractual dispute negates any claim for civil theft); Gasperini v. Bordamingo, 972 So. 2d 1055 (Fla. 4th DCA 2006) (holding if there is a contractual relationship between the parties, no claim for civil theft will lie absent allegations establishing an independent tort that goes beyond an alleged failure to comply with the terms of a contract); See also Florida DeskInc. 817 So. 2d 1060 (Fla 5th DCA 2006) (the tort ofcivil theft is not committed by the mere failure to pay monies contractually due). In this matter, Plaintiffs' claims for civil theft are nothing more than a reiterationof their breach of contract claim disguised as a "civil theft." Indeed, the claims for civil theft and breach of contract allege the exact same parties, the exact same action (i.e. alleged failure to perform). See, generally, Compl. lili 51-59, 77-82. Here, Plaintiff repeatedly admits to the existence of a written agreement. Paragraphs 19 and 24-26 of the Complaint, which are expressly incorporated into all counts of the Complaint contain direct references to the underlying contractual relationship between the Plaintiff and other non-parties that expressly preclude this action. See, generally, Compl. Further, the Operating Agreement, attached to Plaintiff's Complaint as Exhibit A defines the contractual relationship in no uncertain terms and is repugnant to the cause of action to civil theft and unjust enrichment. Florida Rule of Civil Procedure 1.130(b) makes clear that "[a]ny exhibit attached to a pleading shall be considered a part thereof for all purposes ." -- It is well established that where there is an inconsistency between the general allegations of material facts in a complaint and the specific facts revealed by an exhibit, they have the effect of neutralizing each allegation, and the complaint should be dismissed for failure to state a cognizable claim. See Harry Pepper and Assocs., Inc. v. Lasseter,247 So. 2d 736 (Yla. 3d DCA 1971), cert. denied, 252 So. 2d 797 (Fla. 1971). Consequently, because Exhibit A to the Complaint contradicts the 14 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , allegations in the Complaint, Plaintiff's Complaint fails to state a cause of action for civil theft, and should be dismissed for failure to state a cause of action pursuant to Fla. R. Civ. P. 1.120 and 1.140(b)(6). Plaintiffs fail to show any traceable money. Compl. 19 22, 28. All claims for conversion of cash must show traceable funds and an obligation to pay the claimant "identical moneys" to which respondent collected. Belford Trucking Co. v. Zagar, 143 So.2d 646,648 (Fla. 4th DCA 1970). Money is only capable of identificationfor an action in conversion "where it is delivered at one time, by one act and in one mass, or where the deposit is special and the identical money is to be kept for the party making the deposit, or where wrongful possession of such property is obtained." U. According to the Complaint, Plaintiffs made six payments pursuant to the Agreements delivered at different times to BPEP. Compl. 7 32. Plaintiffs have not pled how, when, or in what manner Defendants "converted" those specific payments. Consequently, Plaintiffs has not sufficientlyalleged fraud or conversion against Defendants, and the Complaint against the Defendants should be dismissed with prejudice accordingly. 5. Count VI Declaratory Action Should Be Dismissed With Prejudice Because Agreements Attached to the Complaint Nullify the Complaint and There is No Legal Dispute Between the Parties Before the Court. In Count VI of the Complaint, Bradley seeks a declaration that RBTV, LLC is not a legitimate organization under the laws of Florida because it alleges that RBTV's articles of organization have never been filed with the Florida Secretary of State. Compl. 17 85-93. Bradley brings this claim against both Defendants. Ibid Count VI should be dismissed with prejudice 5 "A obligationto pay money may not be enforced by a conversion action." Be#brd Trucking mere Co., (holding that "an action in tort is inappropriatewhere the basis ofthe suit is 243 So.2d at 648 a contract, either express or implied"). 15 ASSOULINE & BERLOWE, P.A. 2101 CorporateBlvd NW #410, Boca Raton, FL 33431 Telephone: 561-361-6566 , because the Agreements nullify the allegations in the Complaint and there is no actual legal dispute between the parties before the Court. In order to survive a motion to dismiss, a count for declaratory relief must allege each of the following elements with supporting ultimate facts: 1. there is a bona fide, actual, present practical need for the declaration ("a bona fide need"); 2. that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; 3. that some immunity, power, privilege or right of the complaining party is dependentupon the facts or the law applicable to the facts; 4. that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law ("antagonisticinterest"); 5. thatthe antagonistic and adverse interest[sl are all before the court by proper process or class representation("all parties are present"); and 6. that the relief sought is not merely giving of legal advice by the courts or the answer to questions propounded from curiosity ("not giving legal advice"). See People's Tr. Ins. Co. v. Franco, 2020 Fla. App. LEXIS 5028, *7 (Fla. 3d DCA April 15, 2020). Each of these elements are necessary in order to maintain the status of the proceeding as being judicial in nature and thereforewithin the constitutional powers of the courts. Id. Moreover, to survive a motion to dismiss, Plaintiff must allege "sufficient ultimate facts" entitling it to relief. See Stein v. BBX Cap. Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018) (citations omitted); Wausau Ins. Co. v. Haynes, 683 So. 2d 1123, 1124 (Fla. 4th DCA 1996) (test for motion under Rule 1.140(b)(6) is whether party can prove any set of facts to support claims). Speculative or conclusory allegations are insufficient. Stein, 241 So. 3d at 876 (citations omitted). Additionally, "considerable deference"is accorded a trial court's order dismissing a count for a declaratoryjudgment and such a decision will not be disturbed except if the trial court is found to have abused its discretion. Asself v. Citizens Prop. Ins., 159 So. 3d 327, 329 (Fla. 1st DCA 2015). 16 ASSOULINE & BERLOWE, P.A.