Preview
Filing# 136514380 E-Filed 10/13/2021 07:05:23 PM
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
Case No: CACE-21-010364
USA MEDICARE ADVISORS INSURANCE AGENCY LLC,
a Florida Limited LiabilityCompany,
Plaintiff.
V
ELITE HEALTH INVESTMENTS, INC.,
a Florida Profit Corporation,
Defendant.
i
PLAINTIFF'S UNOPPOSED MOTION TO AMEND COMPLAINT BY
INTERLINEATION
Plaintiff USA Medicare Advisors Insurance Agency LLC "LIMA
(hereinafter,
..
or
by and through
"Plaintiff'), its undersigned counsel, hereby moves this Court to amend the
complaint by interlineation in accordance with Fla. R. Civ. P. 1.190. In support thereof, UMA
states as follows:
1. On May 24, 2021, UMA instituted the instant proceeding,assertingclaims for (i)
promissory estoppel,(iv)breach of an
breach of written contract, (ii)unjust enrichment, (iii)
contract, and (v) violation of Florida's Deceptive and Unfair Trade Practices Act
implied-in-fact
("FDUPTA").
2. Defendant Elite Health Investments, Inc. ("Defendant" or "Elite")thereafter filed
an answer, affirmative defenses, and counterclaim.
3 In its prayer for relief, UMA sought, among other types of damages and forms of
..
an award o f"reasonable attorneys'fees (pursuant to Fla. Stat. § 501.2105)-'
relief,
4. In the course of responding to Defendant's First Set of InterrogatoryRequests,
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/13/2021 07:05:23 PM.****
UMA was made aware that the complaint contains a scrivener's error, namely, UMA's second
statutory basis for an award of fees (pursuantto Fla. Stat. § 542.335(k))was inadvertently
omitted
from its prayer for relief.
5. the prayer for relief only identifies Section 501.2105 ofthe Florida
Said differently,
Statutes as the basis for an award of attorney'sfees when it should identifyboth Sections 501.2105
and 542.335(k).
6. This Court has discretion in determiningwhether to grant partiesleave to amend
their pleadings. See, e.g., Craig v. East Pasco Med. Ctr. Inc., 650 So. 2d 179 (Fla.2d DCA 1995).
The Florida Rules of Civil Procedure providethat "[l],
leave... shall be given freelywhen justice
so requires,"Rule 1.190(a),Fla. R. Civ. Pro., and relevant case law instructs that the Court's
discretion should be exercised in favor of granting leave to amend where, as in the instant case,
grantinga requestedamendment will further the resolution of the disputeon the merits, Mount
Sinai Hospital of Greater Miami v. Cordis Corp., 285 So. 2d 645 (Fla.3d DCA 1973), and will
not prejudicethe non-moving party, *radley v. Stick,622 So. 2d 610 (Fla.1st DCA 1993).
7. Given that the instant proceedingwas only recentlyfiled roughly five months ago,
and Defendant was put on notice of the second statutory basis for UMA's request for attorney's
fees in UMA's response to Defendant's First Set of InterrogatoryRequests, Defendant will not be
prejudicedby the grantingof this Motion.
8. Additionally,undersigned has conferred with defense counsel who has indicated
that Defendant does not oppose this Motion.
9. As this is UMA's first request to amend its operativepleading,the privilegeto
amend has not been abused.
10. Amendment would not be futile as Section 542.335(k) provides UMA with a
2
second meritorious statutory basis for the award of attorney'sfees and costs.
11. Further,this Motion is made in good faith and not for improper purposes of delay.
12. In accordance with Fla. R. Civ. P. 1.190(c),amendment of the Complaint would
relate back to the date ofthe original May 24,2021, such that no responsivepleading
pleading,i.e.,
is requiredfrom Defendant (as an answer, affirmative defenses, and counterclaim has alreadybeen
filed).
WHEREFORE, Plaintiff respectfully
requests this Court Enter an Order Amending the
deeming all priorand future pleadingsto reflect Fla.
Complaint by Interlineation, Stat. §§ 501.2105
and 542.335(k)as Plaintiffs asserted statutory bases in support of Plaintiff's request for an award
fees and costs, and for such other relief this Court deems justand proper.
of attorney's
Dated: October 13, 2021
Respectfullysubmitted,
JOHNSON ?DALAL
By: 1-4 - LRA-
MARK C. JOHNSON, ESQ.
VERONIKA BALBUZANOVA, ESQ.
JOHNSONIDALAL
111 N. Pine Island Rd.
Suite 103
Plantation,Florida 33324
www.PatentandTrademarkLaw.com
Tel: 954.507.4500
Fax: 954.507.4502
Info@JohnsonDalal.com
MJ@JohnsonDalal.com
VB@JohnsonDalal.com
JT@JohnsonDalal.com
Attorneysfor Plaintio
3
CERTIFICATE OF SERVICE
I hereby certifythat a true and correct copy ofthe foregoinghas been filed and served using
the ePortal System ofthe Florida Courts and/or electronic mail to counsel ofrecord for Defendant:
Joshua S. Beck, Esq. (beck@becklawpa.corn; pleadings@becklawpa.com) on this 13th day of
October,2021.
i
By:
MARK C. JOHNSON, ESQ.
VERONIKA BALBUZANOVA, ESQ.
JOHNSONIDALAL
111 N. Pine Island Rd.
Suite 103
Plantation,Florida 33324
www.PatentandTrademarkLaw.com
Tel:954.507.4500
Fax: 954.507.4502
Info@JohnsonDalal.com
MJ@JohnsonDalal.com
VB@JohnsonDalal.com
JT@JohnsonDalal.com
Attorneysfor Plaintio
4
EXHIBIT "A"
IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
Case No: CACE-21-010364
USA MEDICARE ADVISORS INSURANCE AGENCY LLC,
a Florida Limited Liability
Company,
Plaintiff.
V
ELITE HEALTH INVESTMENTS, INC.,
a Florida Profit Corporation,
Defendant.
i
COMPLAINT
Plaintiff,USA Medicare Advisors Insurance LLC ',
Agency "Plaintiff'
(hereinafter, or
"UMA"), a Florida Limited Liability
Company, by and through undersigned counsel, files this
Complaint against Defendant, Elite Health Investments, Inc. ("Defendant"),a Florida Profit
(wherein
Corporation, UMA and Defendant may be collectively
referred to herein as "the Parties")
and, in support of relief from this Court, states as follows:
VENUE AND JURISDICTION
1. This is an action for damages that exceeds ThirtyThousand Dollars ($30,000.00),
attorney's fees,and costs, and is otherwise within the jurisdiction
exclusive of interest, ofthis Court.
2. At all times material hereto,Plaintiffwas and is a resident ofBroward County and is
otherwise sui juris.
3 Plaintiffis a company organizedunder the laws ofthe State ofFlorida
Specifically,
with its principalplace of business within this county.
4. Upon information and belief,and at all times material hereto, Defendant was a
1
corporationincorporatedin the State of Florida and maintained continuous and systematicgeneral
business contact with this county by operating,conducting,engaging in,or carryingon a business
within this district. See Exhibit A (a true and accurate screenshot of Defendanf s Sunbiz corporate
record).
5. Upon information and belief,and as set forth in greater detail below, Defendant
to perform acts requiredto be performed in this county by a
breached a contract in Florida by failing
valid and binding contract between the Parties. See Fla. Stat. § 48.193(1)(a)(7).
6. Venue is proper in this district because the cause of action accrued in this district.
FACTUAL ALLEGATIONS
7. Since approximately2017, UMA has served as an insurance agency which advises
Medicare beneficiaries on what plans to choose to best suit their medical and financial needs.
8 Specifically, UMA offers Medicare Supplements and PrescriptionDrug coverage
optionsto current and prospectivecustomers.
9- In the course of its business, UMA routinelyhires,engages, or otherwise retains
downline agents to generate clients leads and sell Medicare Supplement Policies ("theServices").
10. On or around October 26,2020, UMA engaged the Defendant to render the Services
in exchange for agreed-upon compensation.
11. The Parties executed the USA Medicare Insurance Solutions LLC Downline Agent
Agreement ("theAgreemenf') which provided that the term of the Agreement would begin on the
October 26,2020, and continue until terminated or modified
Effective Date, i.e., by the Parties
pursuant to the terms o f the Agreement.
12. A true and correct copy ofthe countersignedAgreement is attached hereto as Exhibit
B
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13. Defendanf s compensation is governed by the terms and provisionsof the Payment
Section ofthe Agreement, which providesthat,"For each Medicare Supplement Policy[Defendant]
"the Cash Purchase Price")
sells,[UMA] shall pay [Defendantl a one-time payment (hereinafter,
subject to chargebacks, volume requirements,and subsequent adjustment in connection with
QuarterlyReviews as set forth in subsection (c) below, pursuant to the following commission
schedule...." See Exhibit B, at 6 (emphasis supplied).
14. "Chargebacks" are defined as the rightof UMA to full repayment of the Cash
Purchase Price upon termination of a policy due to (i)fraud, misrepresentation,
or violation of
applicablelaw on the part ofthe insured or the Downline Agent at any time, or (ii)
the failure ofthe
insured to make greater than six (6)premium payments for any reason. See id at 7.
15. Chargebacks are prorated such that,upon the insured' s sixth failure to make a
premium payment, the Downline Agent, i.e.,Defendant in this case, is responsiblefor the
chargeback of a prorateddecreasingamount of seventeen percent (17%) per payment, up to the
twelfth payment. Id.
16. After the policyholdef s twelfth payment, all chargebacks cease. Id.
17. Pursuant to the Survival Section of the Agreement, the contractual provisions
regardingUMA' s entitlement to receiptof chargebackssurvives termination ofthe Agreement. Id. at
10 and 11 shall survive the termination or earlier
11 ("Sections3(c),4(a)(i),6,7,8,9, of
expiration
this Agreement.").
18. The Agreement further contains an Exclusivity
Section providingthat,"[Defendant]
hereby acknowledges and agrees that it shall exclusivelysolicit, and
negotiate, sell Medicare
supplement insurance on behalf of [LIMA] and on behalfofno otherperson or enti(F,
except as
authorized by a priorwritten release executed by an authorized representative
.,
of the Company.
3
Id.at 9 (emphasis supplied).
19. During the Parties' course of dealing, UMA provided Defendant with marketing
which were optionalat the election ofthe
materials,namely, client leads ("Marketing Materials"),
Defendant.
20. During the term of the Agreement, UMA issued several invoices to Defendant in
connection with Marketing Materials which were commissioned and purchased by Defendant.
21. Defendant duly paid each Marketing Materials invoice issued to the Defendant with
the exception ofthe last six (6) invoices issued in connection with leads which were both received
and used by Defendant immediatelypriorto termination ofthe Agreement ("OutstandingInvoices").
22. True and correct copiesofthe OutstandingInvoices are attached hereto as Exhibit C.
23. Around the beginning of2021, it was brought to UMA's attention that at least one of
Defendanf s agents, more specifically,
an member within Defendanf s company,
was activelysubmittinginsurance policiesunder another hierarchy,i.e.,
on behalfofanotherperson
or entitythat was unaffiliated and unrelated to UMA, without a prior written release from an
authorized UMA representative.
24. Believingthis to be a material breach of,at a minimum, the Exclusivio'
Section ofthe
Agreement, UMA retained undersignedcounsel to remit a notice oftermination letter ("Termination
Lettef')to Defendanf s counsel on or around February 8, 2021.
25. A true and correct copy of the Termination Letter is attached hereto as Exhibit D.
26. The Termination Letter provided written notice ofUMA' s immediate termination of
the Agreement in accordance with UMA' s contractual rightoftermination and the notice provision
set forth in the Agreement. See Exhibit B, at 10-11.
27. Defendanf s counsel acknowledged, and confirmed rece*t of,the Termination Letter
4
on or around February 9,2021.
28. Thereafter,Defendant ceased making payments on the chargebacksthat continued to
accrue to UMA in connection with policieswhich Defendant had sold,despitebeing contractually
obligatedto pay any such accrued balance (and to continue to pay any such accrued balance for
another twelve months after Defendant sold its last policy).
29. As ofthe filingofthis Complaint, the total accrued chargebacks owed to UMA are in
excess of $50,000.00.
30. Likewise, the last payment received by UMA for Marketing Materials used by
Defendant was received on February 5th,several days priorto termination o f the Agreement.
31. Following UMA' s termination of the Agreement, Defendant refused to the
satisfy
total remaining balance for Marketing Materials reflected in the OutstandingInvoices,in the amount
of $70,461.67. See Exhibit C.
32. Despiteengaging in good faith to amicably resolve the claims contained
negotiations
herein and to conserve party and court resources, UMA was forced to institute the instant proceeding
once it became apparent that Defendant had no real intention to resolve this dispute.
33. More specifically,
Defendant has refused to satisfythe Outstanding Invoices
associated with Defendanf s use ofthe Marketing Materials and Defendant has refused to satisfy
the
remaining balance due in connection with chargebackswhich continue to accrue on a near-daily
basis.
34. In view o f Defendanf s clear and unequivocalintention not to comply with the terms
of the Parties' Agreement which survived termination, UMA has been forced to file the instant
complaint.
COUNT I - UNJUST ENRICHMENT
(Florida Common Law)
5
35. Plaintiff paragraphsone (1) through thirty-four
realleges (34) as if fullyset forth
herein.
36. UMA conferred
As evidenced by the well-pledfactual allegations, a benefit on the
Defendant when UMA created and delivered the Marketing Materials reflected in the Outstanding
Invoices to Defendant.
37. The Marketing Materials,consisting
of client leads,benefited Defendant by reducing
the time and effort that was generallyrequiredto be expended by Defendant to locate prospective
clients to whom Defendant could sell an insurance policy.
38. Pursuant to the Agreement, Defendant would then receive a commission for each
policy sold to a client lead while conserving time and resources in locatingsaid leads.
39. Defendant had actual knowledge of this benefit given that received
it willingly the
Marketing Materials and used the same to sell more policiesunder UMA' s hierarchy,wherein
Defendant received commissions in connection with each such policy that was sold.
40. By using the Marketing Materials to sell more policiesand receive more
accepted and retained the benefit conferred.
commissions, Defendant voluntarily
41. The circumstances are such that it would be inequitable
for Defendant to retain the
benefit o f utilizing
the Marketing Materials without paying the value thereo f to UMA.
42. Due to Defendant' s refusal to satisfythe total remaining balance for Marketing
Materials reflected in the OutstandingInvoices, UMA has sustained significant
monetary damages at
least in the amount ofthe total remaining balance of $70,461.67. See Exhibit C.
COUNT II - PROMISSORY ESTOPPEL
(Florida Common Law)
43. Plaintiff reallegesparagraphs one (1)through thirty-four
(34) as if fullyset forth
6
herein.
44. Defendant promised to perform under the material and essential terms memorialized
in the Agreement, which terms include (i)payment of all chargebacks that become due and owing
under the Chargebacks Section ofthe Agreement, and (ii)exclusivelysoliciting, and
negotiating,
sellingMedicare supplement insurance on behalf of [LIMAI and on behalf of no other person or
entity.
45. Defendant should have reasonablyexpectedits promise to change UMA' s behavior in
reliance on said promise.
46. As a result of Defendanf s promise to perform under the Agreement, which it failed to
uphold, UMA reasonablyrelied on said promise to its detriment.
47. UMA has
More specifically, sustained significant
monetary damages at least in the
amount ofthe total accrued chargebacksowed to UMA, which are currently
in excess of $50,000.00.
48. can only be avoided ifDefendanf s promise to perform under the terms of
Injustice
the Agreement is enforced.
COUNT III - BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT
(Florida Common Law)
49. Plaintiff reallegesparagraphs one (1)through thirty-four
(34) as if fullyset forth
herein.
50. The Agreement constitutes a valid and binding written contract between the Parties.
51. As evidenced by the countersignedAgreement, the Parties had a clear meeting ofthe
minds regardingthe material and essential terms oftheir Agreement and intended to be bound by the
terms of the Agreement.
52. UMA performed all conditions precedentand/or concurrent to the bringingof this
action.
7
53. and refusingto perform under the
Defendant has breached the Agreement by failing
without limitation,
terms ofthe Agreement including, to fullyand timelymake payment in
by failing
the amount of the total accrued chargebacks owed to UMA, which are currentlyin excess of
$50,000.00.
54. Pursuant to the Chargebacks and Survival Sections ofthe Agreement, Defendant was
obligatedto satisfyall chargebacks that became due and owing in connection with
contractually
policieswhich Defendant sold. See Exhibit B, at 7, 11.
55. Defendanf s obligationto pay all chargebacks instituted in connection withpoliciesit
sold was a material and essential term of the Agreement.
56. As a result of Defendant' s material breach of the Agreement, UMA has sustained
monetary damages
significant at least in the amount ofthe total accrued chargebacks owed to UMA,
which in excess
are currently of $50,000.00.
57. Upon information and belief,Defendant further materiallybreached the Agreement
when at least one of Defendanf s agents, more specifically,
an member within
Defendanf s company, activelysubmitted insurance policiesunder another hierarchy, on behalf
i.e.,
of another person or entitythat was unaffiliated and unrelated to UMA, without a priorwritten
release from an authorized UMA representative,
during the term of the Agreement.
58. Defendanf s unauthorized actions amount to a material breach of the Exclusivity
Section ofthe Agreement which providesthat,"[Defendant] hereby acknowledges and agrees that it
shall exclusivelysolicit, and sell Medicare supplementinsurance on behalfof [UMA] and
negotiate,
on behalf ofno other person or entity,
except as authorized by a priorwritten release executed by an
of the Company."
authorized representative U. at 9.
59. Due to the failure of Defendant to perform in accordance with the Agreement, UMA
8
harmed and has been forced to institute the instant proceedingto recover the
has been irreparably
sums owed.
COUNT IV - BREACH OF CONTRACT IMPLIED IN FACT
(Florida Common Law)
60. Plaintiff reallegesparagraphs one (1)through thirty-four
(34) as if fullyset forth
herein.
61. As evidenced by the Parties' course of dealing,the Parties had a valid and
contract with respect to the Marketing Materials.
enforceable implied-in-fact
62. During the term of the Agreement, UMA issued several invoices to Defendant in
connection with Marketing Materials which were commissioned and purchased by Defendant from
UMA.
63. On each occasion, Defendant acceptedthe Marketing Materials, used them to sell
policiesunder LIMA s hierarchyand obtain more commissions, and fullyand timely paid said
invoices.
64. As fact contract was that
such, one o f the material terms of the Parties' implied-in-
Defendant would reimburse UMA in the amount billed in exchange for rece*t and use of the
Marketing Materials.
65. The Marketing Materials,consisting
of client leads,benefited Defendant by reducing
the time and effort that was generallyrequiredto be expended by Defendant to locate prospective
clients to whom Defendant could sell an insurance policyunder UMA' s hierarchy.
66. Following UMA' s termination of the Agreement, Defendant refused to the
satisfy
total remaining balance for Marketing Materials reflected in the OutstandingInvoices,in the amount
of $70,461.67, despitethe fact that Defendant received and utilized the Marketing Materials to sell
more policiesand receive more commissions. See Exhibit C.
9
67. Defendanf s failure to pay the total remaining balance for Marketing Materials
reflected in the Outstanding Invoices constitutes a material breach of the Parties' implied-in-fact
contract.
68. As a result of Defendanf s material breach, UMA has been damaged by being
$70,461.67. See
deprived ofthe value of its Marketing Materials,i.e., id.
COUNT V - VIOLATION OF FLORIDA' S DECEPTIVE AND UNFAIR TRADE
PRACTICES ACT
(Fla. Stat. §501.204)
69. Plaintiff reallegesparagraphs one (1)through thirty-four
(34) as if fullyset forth
herein.
70. Defendant engaged in a deceptiveand unfair act in the conduct of its trade,which act
was the legalcause of actual damage sustained by UMA.
71. Upon information and belief,at least one ofDefendanf s agents, more specifically,
an
member within Defendanf s company, activelysubmitted insurance policies
under another hierarchy,
i.e., that was unaffiliated andunrelated
on behalfofanother person or entity
to UMA, without a priorwritten release from an authorized UMA representative,
duringthe term of
the Agreement.
72. In addition to amounting to a material breach of the ExclusivitySection of the
Agreement, Defendanf s conduct also constitutes an unfair and deceptivetrade practicebecause,
upon information and belief,Defendant utilized proprietaryand confidential business information
and materials it garneredduringits engagement with UMA to benefit a direct competitorofUMA' s,
to
i.e., sell policiesunder a competitof s hierarchy.
73. harmed
Defendanf s conduct has irreparably UMA because, upon information and
belief,UMA' s proprietary
and confidential business information was disclosed to, and/or used for
10
the benefit of, a direct competitorof UMA' s in the industry.
74. Further, UMA was injuredin that policieswhich should have been sold under UMA' s
hierarchyfor the benefit ofUMA were sold under a competitof s hierarchyfor the benefit ofUMA' s
competitor.
75. Defendant knew and had reason to know its actions would cause, did cause, and/or
are likelyto cause economic injuryto UMA' s business.
PRAYER FOR RELIEF
WHEREFORE, under Counts I-V, Plaintiff demands judgment for the following as well as
any other relief the Court deems justand appropriate:
A. An order enforcingthe Agreement as stated above, requiringDefendant to reimburse
Plaintiff in the amount o f (i)the full outstandingbalance for Defendanf s purchase,
and use ofthe Marketing Materials
receipt, in the amount of$70,461.67, and (ii)
all
chargebacks due and owing to date (and expected to be incurred up to and until
twelve months from the date the Defendant sold its last policyunder the Agreement),
as agreed and as evidenced by the
originally Parties' verbal and written exchanges;
B. Awarding Plaintiff damages sustained by reason of Defendanf s conduct and
adequate to compensate Plaintiff,
includingawarding any lost reasonable
profits,
attorneys'fees (pursuantto Fla. Stat. §§ 501.2105, 542.335(k)),pre-suitcosts, and
and brand harm caused
reputational and
to Plaintiff;
C. For such further and additional relief this Court deems just and proper under the
circumstances.
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury for all issues so triable.
11
Date: October 13, 2021
Respectfullysubmitted,
By: /Mark C. Johnson/-
MARK C. JOHNSON, ESQ.
Florida Bar No. 0084365
FL Board CertifiedExpert in Intellectual Property Law
MJ@JoHNSONDALAL.COM
VERONIKA BALBUZANOVA, ESQ.
Florida Bar No. 1018462
VB@JoHNSONDALAL.COM
Attorneysfor Plainti#
JOHNSONIDALAL
111 N. Pine Island Road, Suite 103
Plantation,FL 33324
Tel: (954) 507-4500
Fax: (954) 507-4502
12
Preview
Filing# 136514380 E-Filed 10/13/2021 07:05:23 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Case No: CACE-21-010364 USA MEDICARE ADVISORS INSURANCE AGENCY LLC, a Florida Limited LiabilityCompany, Plaintiff. V ELITE HEALTH INVESTMENTS, INC., a Florida Profit Corporation, Defendant. i PLAINTIFF'S UNOPPOSED MOTION TO AMEND COMPLAINT BY INTERLINEATION Plaintiff USA Medicare Advisors Insurance Agency LLC "LIMA (hereinafter, .. or by and through "Plaintiff'), its undersigned counsel, hereby moves this Court to amend the complaint by interlineation in accordance with Fla. R. Civ. P. 1.190. In support thereof, UMA states as follows: 1. On May 24, 2021, UMA instituted the instant proceeding,assertingclaims for (i) promissory estoppel,(iv)breach of an breach of written contract, (ii)unjust enrichment, (iii) contract, and (v) violation of Florida's Deceptive and Unfair Trade Practices Act implied-in-fact ("FDUPTA"). 2. Defendant Elite Health Investments, Inc. ("Defendant" or "Elite")thereafter filed an answer, affirmative defenses, and counterclaim. 3 In its prayer for relief, UMA sought, among other types of damages and forms of .. an award o f"reasonable attorneys'fees (pursuant to Fla. Stat. § 501.2105)-' relief, 4. In the course of responding to Defendant's First Set of InterrogatoryRequests, 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/13/2021 07:05:23 PM.**** UMA was made aware that the complaint contains a scrivener's error, namely, UMA's second statutory basis for an award of fees (pursuantto Fla. Stat. § 542.335(k))was inadvertently omitted from its prayer for relief. 5. the prayer for relief only identifies Section 501.2105 ofthe Florida Said differently, Statutes as the basis for an award of attorney'sfees when it should identifyboth Sections 501.2105 and 542.335(k). 6. This Court has discretion in determiningwhether to grant partiesleave to amend their pleadings. See, e.g., Craig v. East Pasco Med. Ctr. Inc., 650 So. 2d 179 (Fla.2d DCA 1995). The Florida Rules of Civil Procedure providethat "[l], leave... shall be given freelywhen justice so requires,"Rule 1.190(a),Fla. R. Civ. Pro., and relevant case law instructs that the Court's discretion should be exercised in favor of granting leave to amend where, as in the instant case, grantinga requestedamendment will further the resolution of the disputeon the merits, Mount Sinai Hospital of Greater Miami v. Cordis Corp., 285 So. 2d 645 (Fla.3d DCA 1973), and will not prejudicethe non-moving party, *radley v. Stick,622 So. 2d 610 (Fla.1st DCA 1993). 7. Given that the instant proceedingwas only recentlyfiled roughly five months ago, and Defendant was put on notice of the second statutory basis for UMA's request for attorney's fees in UMA's response to Defendant's First Set of InterrogatoryRequests, Defendant will not be prejudicedby the grantingof this Motion. 8. Additionally,undersigned has conferred with defense counsel who has indicated that Defendant does not oppose this Motion. 9. As this is UMA's first request to amend its operativepleading,the privilegeto amend has not been abused. 10. Amendment would not be futile as Section 542.335(k) provides UMA with a 2 second meritorious statutory basis for the award of attorney'sfees and costs. 11. Further,this Motion is made in good faith and not for improper purposes of delay. 12. In accordance with Fla. R. Civ. P. 1.190(c),amendment of the Complaint would relate back to the date ofthe original May 24,2021, such that no responsivepleading pleading,i.e., is requiredfrom Defendant (as an answer, affirmative defenses, and counterclaim has alreadybeen filed). WHEREFORE, Plaintiff respectfully requests this Court Enter an Order Amending the deeming all priorand future pleadingsto reflect Fla. Complaint by Interlineation, Stat. §§ 501.2105 and 542.335(k)as Plaintiffs asserted statutory bases in support of Plaintiff's request for an award fees and costs, and for such other relief this Court deems justand proper. of attorney's Dated: October 13, 2021 Respectfullysubmitted, JOHNSON ?DALAL By: 1-4 - LRA- MARK C. JOHNSON, ESQ. VERONIKA BALBUZANOVA, ESQ. JOHNSONIDALAL 111 N. Pine Island Rd. Suite 103 Plantation,Florida 33324 www.PatentandTrademarkLaw.com Tel: 954.507.4500 Fax: 954.507.4502 Info@JohnsonDalal.com MJ@JohnsonDalal.com VB@JohnsonDalal.com JT@JohnsonDalal.com Attorneysfor Plaintio 3 CERTIFICATE OF SERVICE I hereby certifythat a true and correct copy ofthe foregoinghas been filed and served using the ePortal System ofthe Florida Courts and/or electronic mail to counsel ofrecord for Defendant: Joshua S. Beck, Esq. (beck@becklawpa.corn; pleadings@becklawpa.com) on this 13th day of October,2021. i By: MARK C. JOHNSON, ESQ. VERONIKA BALBUZANOVA, ESQ. JOHNSONIDALAL 111 N. Pine Island Rd. Suite 103 Plantation,Florida 33324 www.PatentandTrademarkLaw.com Tel:954.507.4500 Fax: 954.507.4502 Info@JohnsonDalal.com MJ@JohnsonDalal.com VB@JohnsonDalal.com JT@JohnsonDalal.com Attorneysfor Plaintio 4 EXHIBIT "A" IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Case No: CACE-21-010364 USA MEDICARE ADVISORS INSURANCE AGENCY LLC, a Florida Limited Liability Company, Plaintiff. V ELITE HEALTH INVESTMENTS, INC., a Florida Profit Corporation, Defendant. i COMPLAINT Plaintiff,USA Medicare Advisors Insurance LLC ', Agency "Plaintiff' (hereinafter, or "UMA"), a Florida Limited Liability Company, by and through undersigned counsel, files this Complaint against Defendant, Elite Health Investments, Inc. ("Defendant"),a Florida Profit (wherein Corporation, UMA and Defendant may be collectively referred to herein as "the Parties") and, in support of relief from this Court, states as follows: VENUE AND JURISDICTION 1. This is an action for damages that exceeds ThirtyThousand Dollars ($30,000.00), attorney's fees,and costs, and is otherwise within the jurisdiction exclusive of interest, ofthis Court. 2. At all times material hereto,Plaintiffwas and is a resident ofBroward County and is otherwise sui juris. 3 Plaintiffis a company organizedunder the laws ofthe State ofFlorida Specifically, with its principalplace of business within this county. 4. Upon information and belief,and at all times material hereto, Defendant was a 1 corporationincorporatedin the State of Florida and maintained continuous and systematicgeneral business contact with this county by operating,conducting,engaging in,or carryingon a business within this district. See Exhibit A (a true and accurate screenshot of Defendanf s Sunbiz corporate record). 5. Upon information and belief,and as set forth in greater detail below, Defendant to perform acts requiredto be performed in this county by a breached a contract in Florida by failing valid and binding contract between the Parties. See Fla. Stat. § 48.193(1)(a)(7). 6. Venue is proper in this district because the cause of action accrued in this district. FACTUAL ALLEGATIONS 7. Since approximately2017, UMA has served as an insurance agency which advises Medicare beneficiaries on what plans to choose to best suit their medical and financial needs. 8 Specifically, UMA offers Medicare Supplements and PrescriptionDrug coverage optionsto current and prospectivecustomers. 9- In the course of its business, UMA routinelyhires,engages, or otherwise retains downline agents to generate clients leads and sell Medicare Supplement Policies ("theServices"). 10. On or around October 26,2020, UMA engaged the Defendant to render the Services in exchange for agreed-upon compensation. 11. The Parties executed the USA Medicare Insurance Solutions LLC Downline Agent Agreement ("theAgreemenf') which provided that the term of the Agreement would begin on the October 26,2020, and continue until terminated or modified Effective Date, i.e., by the Parties pursuant to the terms o f the Agreement. 12. A true and correct copy ofthe countersignedAgreement is attached hereto as Exhibit B 2 13. Defendanf s compensation is governed by the terms and provisionsof the Payment Section ofthe Agreement, which providesthat,"For each Medicare Supplement Policy[Defendant] "the Cash Purchase Price") sells,[UMA] shall pay [Defendantl a one-time payment (hereinafter, subject to chargebacks, volume requirements,and subsequent adjustment in connection with QuarterlyReviews as set forth in subsection (c) below, pursuant to the following commission schedule...." See Exhibit B, at 6 (emphasis supplied). 14. "Chargebacks" are defined as the rightof UMA to full repayment of the Cash Purchase Price upon termination of a policy due to (i)fraud, misrepresentation, or violation of applicablelaw on the part ofthe insured or the Downline Agent at any time, or (ii) the failure ofthe insured to make greater than six (6)premium payments for any reason. See id at 7. 15. Chargebacks are prorated such that,upon the insured' s sixth failure to make a premium payment, the Downline Agent, i.e.,Defendant in this case, is responsiblefor the chargeback of a prorateddecreasingamount of seventeen percent (17%) per payment, up to the twelfth payment. Id. 16. After the policyholdef s twelfth payment, all chargebacks cease. Id. 17. Pursuant to the Survival Section of the Agreement, the contractual provisions regardingUMA' s entitlement to receiptof chargebackssurvives termination ofthe Agreement. Id. at 10 and 11 shall survive the termination or earlier 11 ("Sections3(c),4(a)(i),6,7,8,9, of expiration this Agreement."). 18. The Agreement further contains an Exclusivity Section providingthat,"[Defendant] hereby acknowledges and agrees that it shall exclusivelysolicit, and negotiate, sell Medicare supplement insurance on behalf of [LIMA] and on behalfofno otherperson or enti(F, except as authorized by a priorwritten release executed by an authorized representative ., of the Company. 3 Id.at 9 (emphasis supplied). 19. During the Parties' course of dealing, UMA provided Defendant with marketing which were optionalat the election ofthe materials,namely, client leads ("Marketing Materials"), Defendant. 20. During the term of the Agreement, UMA issued several invoices to Defendant in connection with Marketing Materials which were commissioned and purchased by Defendant. 21. Defendant duly paid each Marketing Materials invoice issued to the Defendant with the exception ofthe last six (6) invoices issued in connection with leads which were both received and used by Defendant immediatelypriorto termination ofthe Agreement ("OutstandingInvoices"). 22. True and correct copiesofthe OutstandingInvoices are attached hereto as Exhibit C. 23. Around the beginning of2021, it was brought to UMA's attention that at least one of Defendanf s agents, more specifically, an member within Defendanf s company, was activelysubmittinginsurance policiesunder another hierarchy,i.e., on behalfofanotherperson or entitythat was unaffiliated and unrelated to UMA, without a prior written release from an authorized UMA representative. 24. Believingthis to be a material breach of,at a minimum, the Exclusivio' Section ofthe Agreement, UMA retained undersignedcounsel to remit a notice oftermination letter ("Termination Lettef')to Defendanf s counsel on or around February 8, 2021. 25. A true and correct copy of the Termination Letter is attached hereto as Exhibit D. 26. The Termination Letter provided written notice ofUMA' s immediate termination of the Agreement in accordance with UMA' s contractual rightoftermination and the notice provision set forth in the Agreement. See Exhibit B, at 10-11. 27. Defendanf s counsel acknowledged, and confirmed rece*t of,the Termination Letter 4 on or around February 9,2021. 28. Thereafter,Defendant ceased making payments on the chargebacksthat continued to accrue to UMA in connection with policieswhich Defendant had sold,despitebeing contractually obligatedto pay any such accrued balance (and to continue to pay any such accrued balance for another twelve months after Defendant sold its last policy). 29. As ofthe filingofthis Complaint, the total accrued chargebacks owed to UMA are in excess of $50,000.00. 30. Likewise, the last payment received by UMA for Marketing Materials used by Defendant was received on February 5th,several days priorto termination o f the Agreement. 31. Following UMA' s termination of the Agreement, Defendant refused to the satisfy total remaining balance for Marketing Materials reflected in the OutstandingInvoices,in the amount of $70,461.67. See Exhibit C. 32. Despiteengaging in good faith to amicably resolve the claims contained negotiations herein and to conserve party and court resources, UMA was forced to institute the instant proceeding once it became apparent that Defendant had no real intention to resolve this dispute. 33. More specifically, Defendant has refused to satisfythe Outstanding Invoices associated with Defendanf s use ofthe Marketing Materials and Defendant has refused to satisfy the remaining balance due in connection with chargebackswhich continue to accrue on a near-daily basis. 34. In view o f Defendanf s clear and unequivocalintention not to comply with the terms of the Parties' Agreement which survived termination, UMA has been forced to file the instant complaint. COUNT I - UNJUST ENRICHMENT (Florida Common Law) 5 35. Plaintiff paragraphsone (1) through thirty-four realleges (34) as if fullyset forth herein. 36. UMA conferred As evidenced by the well-pledfactual allegations, a benefit on the Defendant when UMA created and delivered the Marketing Materials reflected in the Outstanding Invoices to Defendant. 37. The Marketing Materials,consisting of client leads,benefited Defendant by reducing the time and effort that was generallyrequiredto be expended by Defendant to locate prospective clients to whom Defendant could sell an insurance policy. 38. Pursuant to the Agreement, Defendant would then receive a commission for each policy sold to a client lead while conserving time and resources in locatingsaid leads. 39. Defendant had actual knowledge of this benefit given that received it willingly the Marketing Materials and used the same to sell more policiesunder UMA' s hierarchy,wherein Defendant received commissions in connection with each such policy that was sold. 40. By using the Marketing Materials to sell more policiesand receive more accepted and retained the benefit conferred. commissions, Defendant voluntarily 41. The circumstances are such that it would be inequitable for Defendant to retain the benefit o f utilizing the Marketing Materials without paying the value thereo f to UMA. 42. Due to Defendant' s refusal to satisfythe total remaining balance for Marketing Materials reflected in the OutstandingInvoices, UMA has sustained significant monetary damages at least in the amount ofthe total remaining balance of $70,461.67. See Exhibit C. COUNT II - PROMISSORY ESTOPPEL (Florida Common Law) 43. Plaintiff reallegesparagraphs one (1)through thirty-four (34) as if fullyset forth 6 herein. 44. Defendant promised to perform under the material and essential terms memorialized in the Agreement, which terms include (i)payment of all chargebacks that become due and owing under the Chargebacks Section ofthe Agreement, and (ii)exclusivelysoliciting, and negotiating, sellingMedicare supplement insurance on behalf of [LIMAI and on behalf of no other person or entity. 45. Defendant should have reasonablyexpectedits promise to change UMA' s behavior in reliance on said promise. 46. As a result of Defendanf s promise to perform under the Agreement, which it failed to uphold, UMA reasonablyrelied on said promise to its detriment. 47. UMA has More specifically, sustained significant monetary damages at least in the amount ofthe total accrued chargebacksowed to UMA, which are currently in excess of $50,000.00. 48. can only be avoided ifDefendanf s promise to perform under the terms of Injustice the Agreement is enforced. COUNT III - BREACH OF CONTRACT OF THE DOWNLINE AGENT AGREEMENT (Florida Common Law) 49. Plaintiff reallegesparagraphs one (1)through thirty-four (34) as if fullyset forth herein. 50. The Agreement constitutes a valid and binding written contract between the Parties. 51. As evidenced by the countersignedAgreement, the Parties had a clear meeting ofthe minds regardingthe material and essential terms oftheir Agreement and intended to be bound by the terms of the Agreement. 52. UMA performed all conditions precedentand/or concurrent to the bringingof this action. 7 53. and refusingto perform under the Defendant has breached the Agreement by failing without limitation, terms ofthe Agreement including, to fullyand timelymake payment in by failing the amount of the total accrued chargebacks owed to UMA, which are currentlyin excess of $50,000.00. 54. Pursuant to the Chargebacks and Survival Sections ofthe Agreement, Defendant was obligatedto satisfyall chargebacks that became due and owing in connection with contractually policieswhich Defendant sold. See Exhibit B, at 7, 11. 55. Defendanf s obligationto pay all chargebacks instituted in connection withpoliciesit sold was a material and essential term of the Agreement. 56. As a result of Defendant' s material breach of the Agreement, UMA has sustained monetary damages significant at least in the amount ofthe total accrued chargebacks owed to UMA, which in excess are currently of $50,000.00. 57. Upon information and belief,Defendant further materiallybreached the Agreement when at least one of Defendanf s agents, more specifically, an member within Defendanf s company, activelysubmitted insurance policiesunder another hierarchy, on behalf i.e., of another person or entitythat was unaffiliated and unrelated to UMA, without a priorwritten release from an authorized UMA representative, during the term of the Agreement. 58. Defendanf s unauthorized actions amount to a material breach of the Exclusivity Section ofthe Agreement which providesthat,"[Defendant] hereby acknowledges and agrees that it shall exclusivelysolicit, and sell Medicare supplementinsurance on behalfof [UMA] and negotiate, on behalf ofno other person or entity, except as authorized by a priorwritten release executed by an of the Company." authorized representative U. at 9. 59. Due to the failure of Defendant to perform in accordance with the Agreement, UMA 8 harmed and has been forced to institute the instant proceedingto recover the has been irreparably sums owed. COUNT IV - BREACH OF CONTRACT IMPLIED IN FACT (Florida Common Law) 60. Plaintiff reallegesparagraphs one (1)through thirty-four (34) as if fullyset forth herein. 61. As evidenced by the Parties' course of dealing,the Parties had a valid and contract with respect to the Marketing Materials. enforceable implied-in-fact 62. During the term of the Agreement, UMA issued several invoices to Defendant in connection with Marketing Materials which were commissioned and purchased by Defendant from UMA. 63. On each occasion, Defendant acceptedthe Marketing Materials, used them to sell policiesunder LIMA s hierarchyand obtain more commissions, and fullyand timely paid said invoices. 64. As fact contract was that such, one o f the material terms of the Parties' implied-in- Defendant would reimburse UMA in the amount billed in exchange for rece*t and use of the Marketing Materials. 65. The Marketing Materials,consisting of client leads,benefited Defendant by reducing the time and effort that was generallyrequiredto be expended by Defendant to locate prospective clients to whom Defendant could sell an insurance policyunder UMA' s hierarchy. 66. Following UMA' s termination of the Agreement, Defendant refused to the satisfy total remaining balance for Marketing Materials reflected in the OutstandingInvoices,in the amount of $70,461.67, despitethe fact that Defendant received and utilized the Marketing Materials to sell more policiesand receive more commissions. See Exhibit C. 9 67. Defendanf s failure to pay the total remaining balance for Marketing Materials reflected in the Outstanding Invoices constitutes a material breach of the Parties' implied-in-fact contract. 68. As a result of Defendanf s material breach, UMA has been damaged by being $70,461.67. See deprived ofthe value of its Marketing Materials,i.e., id. COUNT V - VIOLATION OF FLORIDA' S DECEPTIVE AND UNFAIR TRADE PRACTICES ACT (Fla. Stat. §501.204) 69. Plaintiff reallegesparagraphs one (1)through thirty-four (34) as if fullyset forth herein. 70. Defendant engaged in a deceptiveand unfair act in the conduct of its trade,which act was the legalcause of actual damage sustained by UMA. 71. Upon information and belief,at least one ofDefendanf s agents, more specifically, an member within Defendanf s company, activelysubmitted insurance policies under another hierarchy, i.e., that was unaffiliated andunrelated on behalfofanother person or entity to UMA, without a priorwritten release from an authorized UMA representative, duringthe term of the Agreement. 72. In addition to amounting to a material breach of the ExclusivitySection of the Agreement, Defendanf s conduct also constitutes an unfair and deceptivetrade practicebecause, upon information and belief,Defendant utilized proprietaryand confidential business information and materials it garneredduringits engagement with UMA to benefit a direct competitorofUMA' s, to i.e., sell policiesunder a competitof s hierarchy. 73. harmed Defendanf s conduct has irreparably UMA because, upon information and belief,UMA' s proprietary and confidential business information was disclosed to, and/or used for 10 the benefit of, a direct competitorof UMA' s in the industry. 74. Further, UMA was injuredin that policieswhich should have been sold under UMA' s hierarchyfor the benefit ofUMA were sold under a competitof s hierarchyfor the benefit ofUMA' s competitor. 75. Defendant knew and had reason to know its actions would cause, did cause, and/or are likelyto cause economic injuryto UMA' s business. PRAYER FOR RELIEF WHEREFORE, under Counts I-V, Plaintiff demands judgment for the following as well as any other relief the Court deems justand appropriate: A. An order enforcingthe Agreement as stated above, requiringDefendant to reimburse Plaintiff in the amount o f (i)the full outstandingbalance for Defendanf s purchase, and use ofthe Marketing Materials receipt, in the amount of$70,461.67, and (ii) all chargebacks due and owing to date (and expected to be incurred up to and until twelve months from the date the Defendant sold its last policyunder the Agreement), as agreed and as evidenced by the originally Parties' verbal and written exchanges; B. Awarding Plaintiff damages sustained by reason of Defendanf s conduct and adequate to compensate Plaintiff, includingawarding any lost reasonable profits, attorneys'fees (pursuantto Fla. Stat. §§ 501.2105, 542.335(k)),pre-suitcosts, and and brand harm caused reputational and to Plaintiff; C. For such further and additional relief this Court deems just and proper under the circumstances. DEMAND FOR JURY TRIAL Plaintiff demands a trial by jury for all issues so triable. 11 Date: October 13, 2021 Respectfullysubmitted, By: /Mark C. Johnson/- MARK C. JOHNSON, ESQ. Florida Bar No. 0084365 FL Board CertifiedExpert in Intellectual Property Law MJ@JoHNSONDALAL.COM VERONIKA BALBUZANOVA, ESQ. Florida Bar No. 1018462 VB@JoHNSONDALAL.COM Attorneysfor Plainti# JOHNSONIDALAL 111 N. Pine Island Road, Suite 103 Plantation,FL 33324 Tel: (954) 507-4500 Fax: (954) 507-4502 12