Motion to Dismiss in USA Medicare Advisors Insurance Agency LLC, et al Plaintiff vs. Elite Health Investents Inc, et al Defendant| Trellis.Law

On May 24, 2021 a Motion,Ex Parte was filed involving a dispute between Elite Health Investments, Inc, Usa Medicare Advisors Insurance Agency Llc, and Elite Health Investents Inc, Usa Medicare Advisors Insurance Agency Llc, for 3 in the District Court of Broward County.

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Filing # 134225058 E-Filed 09/08/2021 05:43:31 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 Liability Company,

Plaintiff.

ELITE HEALTH INVESTMENTS, INC.,
a Florida Profit Corporation,

Defendant.
i

MOTION TO DISMISS COUNTS I, II, AND IV OF DEFENDANT'S COUNTERCLAIM
PURSUANT TO FLA. R. CIV. P. 1.140(b)(6) AND MOTION TO STRIKE
DEFENDANT'S AFFIRMATIVE DEFENSES OR, IN THE ALTERNATIVE, FOR A
MORE DEFINITE STATEMENT PURSUANT TO FLA. R. CIV. P. 1.140(e)

Plaintiff, USA Medicare Advisors Insurance Agency LLC, ("Plaintiff" or "UMA"), by and

through undersigned counsel, moves to dismiss Count I (UnjustEnrichment), Count II (Promissory

Estoppel), and Count IV (Breach of Contract Implied In Fact) of Defendant Elite Health

Investments, Inc.'s ("Defendant") Counterclaimpursuant to Rule 1.140(b)(6) ofthe Florida Rules

of Civil Procedure for failure to state a cause of action. UMA further moves to strike Defendant's

affirmative defenses pursuant to Rule 1.140(f) or, in the alternative, for a more definite statement

pursuant to Rule 1.140(e). In support thereof, UMA provides the following memorandum of law

and fact.

MEMORANDUM OF LAW AND FACT

On May 24, 2021, UMA filed the underlying five-count complaint for unjust enrichment,

promissory estoppel, breach of express contract, breach of contract implied in fact, and violation

***
FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 09/08/2021 05:43:31 PM.****
of Florida's Deceptive and Unfair Trade Practices Act ("FDUPTA") in connectionwith the Partis'

business relationship and a Downline Agent Agreement ("the Agreement") that was mutually

executed by the Parties in October of 2020. In response, Defendant filed an answer, affirmative

defenses, and counterclaim on August 16, 2021, with the counterclaim being the subject of the

instant motion to dismiss. Specifically, Defendant's counterclaim is a mirror image of UMA's

complaint in that it asserts identical claims for unjust enrichment, promissory estoppel, breach of

express contract, breach of contract implied in fact, and FDUPTA violations. While UMA's unjust

enrichment, promissory estoppel, and breach of implied in fact contract claims are principally

rooted in Defendant's non-payment of certain marketing materials, namely, client leads

("Marketing Materials") that are not covered by the Downline Agent Agreement, Defendant's

identical claims all stem from what Defendant claims to be a purported breach of the Downline

Agent Agreement itself, namely, UMA's non-paymentofpurportedly outstanding commissions in

the alleged amount of $214,460.00 ("Commissions"). In other words, Defendant's claims for

unjust enrichment, promissory estoppel, and breach of an implied contract impermissibly allege

the existence of a written contract, i. e., the Downline Agent Agreement, even though these

equitable claims can only be maintained in the absence of a written agreement. Because Defendant

fails to state a cause of action for Count I (Unjust Enrichment), Count II (Promissory Estoppel),

and Count IV (Breach of Contract Implied In Fact), this Court should dismiss Counts I, II, and IV

ofDefendant'scounterclaim.

A. THE EXISTENCE OF THE DOWNLINE AGENT AGREEMENT PRECLUDES DEFENDANT'S
CLAIMS FOR UNJUST ENRICHMENT, PROMISSORYESTOPPEL, AND BREACH OF IMPLIED IN
FACT CONTRACT.

When ruling on a motion to dismiss for failure to state a cause of action, the trial court

must treat all well-pleaded allegations as true, including those that incorporate attachments, and

look no further than the complaint and its attachments. Urribari v. 52 SW 5th Ct HWSE, LLC 266

2
So. 3d 1257, 1261 (Fla. 4th DCA 2019) (quoting Morin v. Fla. Power & Light Co., 963 So. 26

258,260 (Fla. 3d DCA 2007)). "The court 'must confineitself strictly to the allegations withinthe

four corners o f the complaint."' Pizzi v. Cent. Bank & Tr. Co., 250 So. 2d 895,897 (Fla. 1971?

(quoting Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968" Here, the Court may rely
.

on the Complaint (and accompanying attachments) and Defendant's Answer, Affirmative

Defenses, and Counterclaim.

Pursuant to Florida contract law, it is axiomatic that there can be no unjust enrichment or

promissory estoppel claim whenthere is an express contract between the parties.JAEEIndus. Co.,

Ltd. v. Paragon Metals, Inc., 2010 U.S. Dist. LEXIS 27098, at *3 (S.D. Fla. Mar. 23, 2010); see

also Moynet v. Courtois, 8 So. 3d 377, 379 (Fla. 3d DCA 2009i ("[W]here there is an express

contract between the parties, claims arising out of that contractual relationship will not support a

claim for unjust enrichment."); Advanced Mktg. Sys. Corp. v. Zk Yacht Sales, 830 So. 2d 924,92S

> Contract
...

sale of a yacht. Summary judgment was also granted in
Formation > > General Overview
the broker's favor on counterclaims for an account Acceptance
stated and breach of an oral agreement.
Contracts Law > Contract Formation > General
Overview
Overview
The purchaser entered into an agreement for the
Business & Corporate Compliance > > Contracts
...

purchase of a yacht from the seller and the broker. Prior
Law > Types of Contracts > Guaranty Contracts
to signing, the purchaser alleged that the broker agreed
orally to return some of the commission, at which point
the purchaser agreed to pay for various services to be
HA/1[&] Contract Formation, Acceptance

provided. After the agreement was signed, the broker In order to create a contract, it is essential that there

Veronika Balbuzanova
Page 2 of 6
830 So. 2d 924, *924; 2002 Fla. App. LEXIS 17154, **1

should be reciprocal assent to a certain and definite
a

proposition. So
long as any essential matters are left
open for further consideration, the contract is not Business & Corporate Compliance > ...
> Contract
complete, and the minds of the parties must assent to Formation > Consideration > Detrimental Reliance
the same thing in the same sense. Where an offer of

guaranty or any contract is made and delivered subject Contracts Law > ...
> Consideration > Enforcement
to a condition which is not accepted, such a guaranty or of Promises > General Overview

contract is not enforceable.
Contracts Law > Contract
Formation > Consideration > General Overview

Business & Corporate Compliance > > Contract
Business & Corporate Compliance > > Contract
...

...

Formation > Consideration > Promissory Estoppel
Formation > Consideration > Promissory Estoppel

Contracts Law > > Consideration > Enforcement
...

HN41&1 Consideration, Detrimental Reliance
of Promises > General Overview

Promissory estoppel does not apply to oral statements
Contracts Law > Contract made prior to the written contract, where the contract
Formation > Consideration > General Overview
covers the same subject matter. Promissory estoppel is

not a doctrine designed to give a party to a negotiated
HN21ti Consideration, PromissoryEstoppel commercial bargain a second bite at the apple in the
event it fails to prove breach of contract.
The basic elements of promissory estoppel include a
promise which the promisor should reasonably expect to
induce action or forbearance on the part of the promisee
or a third person and which does induce such action or Contracts Law > ...
> Affirmative Defenses > Fraud
forbearance. Such is binding if injustice can be avoided & Misrepresentation > General Overview

only by enforcement of the promise. The remedy
grantec for breach may be limited as justice requires. HN5[&] Affirmative Defenses, Fraud &

The character of the reliance protected is explained as Misrepresentation
follows: the promisor is affected only by reliance which
A party cannot recover in fraud for alleged oral
he does or should foresee, and enforcement must be
necessary to avoid injustice. Satisfaction of the latter misrepresentations that are adequately covered or
requirernent rnay depend on the reasonableness of the expressly contradicted in a later written contract.
promisee's reliance, on its definite and substantial
Counsel: Kenni F. Judd, Robert L. Jennings and John
character in relation to the remedy sought, on the
W. Stevens of Jennings & Valancy, P.A., Fort
formality with which the promise is made, on the extent
to which the evidentiary, cautionary, deterrent and Lauderdale, for appellants.
channeling functions of form are met by the commercial Lawrence S. Ben of Chikovsky, Ben & Schafer,
setting or otherwise, and on the extent to which such Hollywood, for appellees.
other policies as the enforcement of bargains and the

prevention of unjust enrichment are relevant. Judges: HAZOURI, J. WARNER and GROSS, JJ.,
concur.

Opinion by: HAZOURI
Business & Corporate Compliance > > Contract ...

Formation Consideration Promissory Estoppel
> >

Opinion
HN3 lAi Consideration, PromissoryEstoppel

A cause of action for promissory estoppel does exist. r925] HAZOURI, J.
The doctrine of promissory estoppel comes into play
where the requisites of contract are not met, yet the The trial court
granted final summary judgment against
promise should be enforced to avoid injustice. appellants, Advanced Marketing Systems Corporation

Veronika Balbuzanova
Page 3 of 6
830 So. 2d 924, *925; 2002 Fla. App. LEXIS 17154, **1

(Advanced Marketing) and Douglas Pierce, on their surveys, and sea by the appellants before requiring
trial
Sixth Amended Complaint for (I) breach of contract, (Il) their acceptance or rejection of the Bondo by December
breach of covenant of good faith and fair dealing, (I I I) 5, 1997. The purchase agreement provided for the
promissory estoppel, (IV) closing of the sale to occur on or before December 12,

misrepresentation, and (V) unjust enrichment. The trial 1997. On December 5, 1997, the parties closed on the
court also granted summary judgment in favor of yacht. A closing statement was approved and signed by
appellees, ZK Yacht Sales, Inc., and Alan Charlap, on Advanced Marketing through its president, Douglas
their counterclaims for (I) account stated and (I I) breach Pierce. It provided for the disbursement of the yacht
of an oral contract and denied appellants' motion to brokerage commission in the amount of $ 140,000 to ZK
amend their affirmative defenses to these Yacht Sales. On that same day, Charlap presented to
counterclaims. We affirm summary judgment [**2] on Pierce a three- year listing agreement for the resale of
the complaint, reverse summary judgment on the the Bondo but Pierce refused to sign [**4] because the
counterclaim and remand for further proceedings. listing period was too long. Appellants subsequently
filed suit against appellees for the return of $ 90,000.
The appellants' claim and the appellees' counterclaim Appellants allege that, prior to executing the purchase
arise from the purchase of a motor yacht know as the agreement, appellees agreed to return $ 90,000 of the
"Bondo." On November 29, 1997, Advanced Marketing cornrnission to thern after the sale was completed.
entered into a purchase agreement for the Bondo with
Appellees deny they agreed to this rebate except as
Poseidon Marine Limited, the seller, and ZK Yacht conditioned in the handwritten offer.
Sales, the authorized selling broker. The agreement
provided for a purchase price of $ 2 million and a [*926] Appellees filed a motion for summary judgment
commission of $ 140,000 to bepaid to ZK Yacht Sales. on appellants' Sixth Amended Complaint arguing that
The agreement contained integration
an clause and an the integration clause precluded recovery on any oral
amendment clause which provide: agreements which may have been made before the
purchase agreement was executed. Appellees also
20. Entire Agreement. This Agreement constitutes the argued that there could be no reliance on Charlap's
entire agreement between the parties. There are no handwritten document, because Pierce never entered
other terms, conditions, promises, undertakings, into a listing agreement. The trial court granted
ndemnities, statements, representations or warranties appellees' rrlotion and entered Partial Surnrnary
express or implied, concerning the transactions Judgment for appellees on the Sixth Amended
contemplated by this Agreement. This Agreement Complaint.
supersedes any prior agreement or understanding
between them, oral or written, all of which are hereby Appellees' counterclaim is for $ 39,527.55, which they
cancelled. incurred providing goods and services for the Bondo at
appellants' request. There is no issue of fact concerning
21. Amendment. Except as otherwise provided herein,
appellants' agreement with appellees to provide the
the provisions hereof may be amended, supplemented,
goods and services. At the hearing on appellees' rnotion
waived or changed, only by a writing that makes for the
surnrnary judgrnent on counterclairn,
specific [**3] reference to this Agreement and is signed appellants [**5] argued that appellees were estopped
by the party as to whom enforcement of any on this claim because appellants only agreed to accept
amendment, supplement, waiver or modification the
goods and services provided by ZK Yacht Sales in
agreement [sic]. reliance upon appellants' understanding that appellees
were going to return $ 90,000 of the commission.
On December 3, 1997, Charlap signed a handwritten
Appellees responded that appellants did not sufficiently
document in his capacity as president of ZK Yacht Sales
plead the affirmative defense of estoppel. Appellants
in which he wrote:
argued that they sufficiently pled estoppel and,
I Alan Chalap president of ZK Yacht Sales will return to alternatively,requested leave to amend their affirmative
defenses. The trial court disregarded appellants' motion
Douglas Pierce Purchaser of the Vessel Bondo a 1991
and agreed with appellees' argument that the affirmative
96' Versilcraft $ 90,000 on the signing of the listing on
defenses pled were insufficient. Appellees' motion for
the Vessel Bondo to be renamed. These funds will be
paid on or before 12/12/97. summary judgment was granted. Appellants thereafter
filed a motion to amend their affirmative defenses, which
The purchase agreement provided for inspections, the trial court denied, thereafter entering final judgment

Veronika Balbuzanova
Page 4 of 6
830 So. 2d 924, *926; 2002 Fla. App. LEXIS 17154, **5

for appellees on their counterclaim. Id. at 357 (quoting Strong & Trowbridqe Co. v. H. Baars
& Co., 60 Fla. 253, 54 So. 92, 93 (1910)).
On Count I for breach of contract, appellants allege that
prior entering into a formal contract for the purchase
to
of the Bondo or any yacht, appellees orally agreed to "Where an offer of guaranty or any contract is made and
provide a substantial discount to appellants on any delivered subject to a condition which is not accepted,
brokerage commission on any purchase. Appellants such a guaranty or contract is not enforceable." Juliana,
allege that appellees breached this agreement by failing /nc. v. Salzman, 181 So. 2d 3, 4 (Fla. 3d DCA 1965).
to return $ 90,000 from the commission [**6] appellees The handwritten document is an offer
by Charlap to pay
received on this transaction. The purchase agreement Pierce $ 90,000 in return for the [**8] listing of Pierce's
provides for the payment of the entire commission to yacht Bondo. As a listing agreement was never signed,
appellees with no provision for a discount. The purchase the contract is not complete and appellants are not
agreement also provides that it "supercedes any prior entitled to its enforcement.
agreement or understanding between [the parties], oral
or written" and that all prior agreements are canceled. In the alternative, appellants argue that the handwritten

The trial court concluded that the written purchase document is subsequent written modification because
a

agreement was unambiguous, and in light of the "the parties a contract may modify the written
to

ntegration clause, may not be varied by orai agreement by subsequent oral agreement or course of
statements. It further found that appellees did not dealing with one another despite the requirement of a
breach any obligation imposed by the written agreement writing in order to modify." Linear Corp. v. Standard
and entered summary judgment on this count in Hardware Co., 423 So. 2d 966, 968 (Fla. 1 st DCA

appellees' favor. 1982). However, the decision in Linear was based upon
a finding of a waiver of the requirement that a
Appellants first argue that appellees are not parties to subsequent modification be in writing and that a
the contract and therefore are not entitled to rely on the subsequent modification actually occurred. We find the
integration clause. This argument is without basis in fact decision in Linear is inapplicable because Charlap's
because the contract specifically provides on the offer was never accepted and a subsequent
signature page of the purchase agreement that "the modification never occurred.
parties have executed this Agreement" below which all
three parties, Charlap for ZK Yacht Sales, Poseidon Appellants next argue that the trial court should not
Marine Limited's agent, and Pierce, signed the purchase have granted appellees' motion for summary judgment

agreement. with respect to appellants' promissoryestoppel claim. In
appellees' summary judgment motion, they argue that
promissory estoppel is an affirmative defense and not a
that cause of action. Alternatively, they argue that [**9]
Appellants next Charlap's handwritten
argue
document is a contract collateral
to, but [**71 appellants' promissory estoppel claim lacks the required
ndependent of a contract of sale that is not precluded element of detrimental reliance. On appeal appellants

by the existence of an integration clause. See Attanasio argue that they adequately pled the elements of a claim
v. Excel Dev. Corp., 757 So. 2d 1253, 1255 (Fla. 4th tor promissory estoppel and there remain issues of
DCA 1998). Appellees respond that the handwritten material fact which preclude summary judgment on this

document is not a contract and, therefore, there is claim.

nothing to enforce. We agree.
\n W.R. Grace and Co. v. Geodata Services, Inc., 547
\n Holloway v. Gutman, 707 So. 2d 356 (Fla. 5th DCA So. 2d 919 (Fla. 1989), the supreme court held that the

1998), the fifth district held: theory of promissory estoppel could be applied under
the following circumstances:
HN1[V] In order to create a contract, it is essential that
there should be reciprocal [*927]
a assent to a certain HN2[7] The basic elements of promissoryestoppel are
and definite proposition. So long set forth in Restatement (Second) of Contracts § 90
as any essentiai
matters are left open for further consideration, the (1979), which states:
contract is not complete, and the minds of the parties
must assent to the same thing in the same sense. (1) A promise which the promisor should reasonably
expect to induce action or forbearanceon the part of the
promisee or a third person and which does induce such

Veronika Balbuzanova
Page 5 of 6
830 So. 2d 924, *927; 2002 Fla. App. LEXIS 17154, **9

action or forbearance is binding if injustice can be designed to give a party to a negotiated commercial
avoided only by enforcement of the promise. The bargain a second bite at the apple in the event it fails to
-

remedy granted for breach may be limited as justice prove breach of contract." Gen. Aviation, Inc. v. Cessna
requires. Aircraft Co., 915 F.2d 1038, 1042 (6th Cir. 1990),

(quoting Walker v. KFC Corp., 728 F.2d 1215,1220 (9th
The character of the reliance protected is explained as
Cir. 1984)). Here, theperformance [**12] that satisfied
follows: the detrimental reliance
requirement of appellant's
promissoryestoppel theory- -appellant's purchase of the
The promisor is affected only by reliance which he does
Bondo- -is the same performance which represents
or should foresee, and enforcement must be necessary
consideration for the written purchase agreement so
to avoid injustice. Satisfaction of the latter requirement that the doctrine of promissory estoppel is not
may depend on the reasonableness [**10] ofme
applicable. See Gen. Aviation, 915 F.2d at 1042.
promisee's reliance, on its definite and substantial
character in re/ation to the remedy sought, on the The trial court also found in favor of
appellees on
formality with which the promise is made, on the extent appellants' claim for fraudulent misrepresentation.
to which the evidentiary, cautionary, deterrent and
Appe\\antsargue, c\Ung Mejiav. Jurich, 781 So. 2d 1175
channeling functions of form are met by the commercial (Fla. 3d DCA 2001), that "the existence of a merger or
setting or otherwise, and on the extent to which such integration clause, which purports to make oral
other policies as the enforcement [*928] of bargains
agreernents not incorporated into the written contract
and the prevention of unjust enrichment are relevant.
unenforceable, does not affect oral representations
which are alleged to have fraudulently induced a person
/d. (emphasis added). to enter into the agreement." li at 1178.

However, the holding in Mejia is limited to when the
547 So. 2d at 924. Thus, the supreme court has held
subject of the oral agreement is not covered by the
that HA/3[V] a cause of action for promissory estoppel contract. As this court held in Hillcrest Pacific Corp. v.
does exist. \n Doe v. Univision Television Group, Inc.,
Yamamura, 727 So. 2d 1053 (Fla. 4th DCA 1999),
717 So. 2d 63, 65 (Fla. 3d DCA 1998), the court held
"HN5[*] a party cannot recover in fraud for alleged oral
that "the doctrine of promissory estoppel comes into
misrepresentations that are adequately covered or
play where the requisitesof contract are not met, yet the
expressly contradicted [**13] in a later written contract."
promise should be enforced to avoid injustice." /d. at 1056. The subject of appellees' commission is

adequately covered by the purchase agreement and
Appellants allege in their complaint that appellees
precludes appellants' recovery in fraud.
agreed to rebate $ 90,000 and the subsequent
handwritten document offering that amount in return for
As stated above, appellees counterclaimed against
a listing agreement induced them to offer to purchase
appellants for an account stated and breach of an oral
the Bondo and, after the seller accepted, to confirm the
contract. ZK Yacht Sales provided an engine survey,
purchase agreement after the sea trials and survey. insurance, and other services in connection with the
Appellants gave their [**11] final acceptance of the of the Bondo for which
purchase appellants agreed to
purchase agreement which contained the integration reimburse ZK Yacht Sales. This is a separate
clause and the specific amount of the commission to be
agreement from the
purchase agreement and is not
paid appellees with no mention of the rebate.
subject to integration clause. Appellant's defense
an
Promissory estoppel is unavailable in this case because
appears to be that its agreement to [*929] accept
a written contract between the parties covered the sale
goods and services and to pay for them was contingent
of the yacht and the commissions due to the broker.
upon ZK Yacht Sales' reimbursement of the $ 90,000
See Jhaver v. Zapata Off-Shore Co., 903 F.2d 381, 385
commission. Issues of fact remain. Appellant's motion to
(5th Cir. 1990) (observing that "under Texas law, a
amend their affirmative defenses should have been
contract comprising the disputed promise precludes
granted.
recovery under promissory estoppel"); Borowski v. State
Chem. Mfq. Co., 97 Ohio App. 3d
635,64.N.E.2d 230, \n conclusion, we affirm the summary judgment against
235 (Ohio App. 1994) (holding that "HN4[V] promissory appellants on their claims and revirie Fhe summary
estoppel does not apply to oral statements made prior to
judgment in favor of appellees on appellees'
the written contract, where the contract covers the same counterclaims.
subject matter"). "'Promissory estoppel is not a doctrine

Veronika Balbuzanova
Page 6 of 6
830 So. 2d 924, *929; 2002 Fla. App. LEXIS 17154, **13

AFFIRMED in part; REVERSED in part.

WARNER and GROSS, JJ., concur.

End of Document

Veronika Balbuzanova
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Date and Time: Wednesday, September 8, 2021 3:21:00 PM EDT

Job Number: 152430597

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1. Baron v. Osman, 39 So. 3d 449

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Baron v. Osman

Court of Appeal of Florida, Fifth District

July 2, 2010, Opinion Filed

Case No. 5D09-1781

Reporter
39 So. 3d 449 *; 2010 Fla. App. LEXIS 9747 **; 35 Fla. L. Weekly D 1464

JOHNNY BARON, JR., AHMED M.
associate alleged that he orally agreed to provide his
Appellant, v.
services in exchange for 30 percent of the gross
OSMAN A/K/A AHMEN M. OSMAN, et al., Appellees.
income. The payroll records reflected such payment.
The associate acquired contractsfor transportation with
Subsequent History: Released for Publication July 21,
various clients. Such facts, if proven, clearly evinced
2010.
that the associate was providing his services with the

Prior History: [**1] Appeal from the Circuit Court for mutual understanding that he would share in the
Volusia County, John V. Doyle, Judge. proceeds of the business. The associate also sufficiently
alleged an alternative cause of action for quasi-contract
Core Terms by alleging that he acquired a contract and provided
services resulting in revenues for the business, and that
the founder knowingly accepted the associate's
implied-in-fact,quasi-contract, second amended
services, and that his retention of the resulting proceeds
complaint, cause of action, allegations, Contracts,
would be inequitable.
proceeds, assent, director of operations, provide
transportation, business relationship, breach of contract, Outcome
unjust enrichment, express contract, resulting damage, The court reversed the order and remanded the matter
material breach, gross proceeds, thirty percent, gross
for further proceedings.
income, orally agree, transportation, terminating,
compensate, manifested, inferred, charter, damages,
LexisNexis@ Headnotes
proven, unjust, words

Case Summary

Procedural Posture
Business & Corporate Compliance > > Contracts
...

Appellant associate sought review of an order from the
Circuit Court for Volusia which
Law > Types of Contracts > Contracts Implied in
County (Florida),
Fact
dismissed his action for breach of contract and unjust
enrichment against appellees, a business and its
Business & Corporate
founder.
Compliance > > Breach ...
> Breach of Contract
Actions > Elements of Contract Claims
Overview
The associate's claims were based upon an alleged
Business & Corporate Compliance > > Contracts...

agreement between the associate and the founder to Law >
Types of Contracts Express Contracts
>
cooperate in the undertaking of the business. The
associate alleged that the founder failed to pay the
HA/1[&] Types of Contracts, Contracts Implied in
associate his share of the gross proceeds before Fact
terminating their business relationship. The court found
that the associate asserted sufficient allegations to
To state a cause of action for breach of contract, a
establish the existence of an express oral contract or, iiIn need
complaint only allege facts that establish the
the alternative, an implied-in-fact contract. The existence of a contract,a material breach, and resulting

Veronika Balbuzanova
Page 2 of 3
39 So. 3d 449, *449; 2010 Fla. App. LEXIS 9747, **1

damages. A valid contract arises when the parties' business founded by Osman. The attachments to the
assent is manifested through written or spoken words, complaint indicate Baron
was issued 3030 shares in

or inferred in whole part or in from the
parties' conduct. Cypress Tours and was appointed vice president and
A contract based parties' words is characterized
on the director of operations. Baron alleged that he and Osman
as express, whereas, a contract based on the parties' orally agreed to equally split sixty percent of the gross
conduct is said to be implied in fact. The only distinction income and that Osman failed to pay Baron his share of
between an express and implied-in-fact contract is the the gross proceeds before terminating their business
manner in which the parties' assent is manifested or relationship. Baron's second amended complaint sought
proven. While the law will not recognize an implied-in- damages from Cypress Tours and Osman for breach of
fact contract where an express contract exists, a contract and unjust enrichment. Without explanation, the
contract may be inferred where an express contract fails trial court dismissed Baron's second amended complaint
for lack of proof. with prejudice. We review de novo the dismissal and
accept all well-pled allegations as true. See Labance v.
Dawsv, 14 So. 3d 1256,1258 (Fla. 5th DCA 2009).
Business & Corporate Compliance > > Contracts
HN1[V]
...

To [**2]state a cause of action for breach of
Law >
Types of Contracts > Quasi Contracts need
contract, a complaint only allege facts that
establish the existence of a contract, a material breach,
Contracts Law > Remedies > Equitable

Case Info

Judge

Fahnestock, Fabienne E. Track Judge’s New Case

Case No.

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Document Filed Date

September 08, 2021

Case Filing Date

May 24, 2021

County

Parties

Beck, Joshua S Attorney for the Defendant
Beck, Joshua S Attorney for the Defendant
Elite Health Investents Inc Defendant
Elite Health Investments, Inc Plaintiff
Johnson, Mark C, ESQ. Attorney for the Plaintiff
Johnson, Mark C, ESQ. Attorney for the Plaintiff
Palma, Jeremy Thomas Attorney for the Defendant
USA Medicare Advisors Insurance Agency LLC Defendant
USA Medicare Advisors Insurance Agency LLC Plaintiff
Veronika Balbuzanova Attorney
STACY BECK Attorneys for Defendants
Abdul-Sumi Dalal Attorney
Malena Atack Attorney

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Motion,Ex Parte: USA Medicare Advisors Insurance Agency LLC, et al Plaintiff vs. Elite Health Investents Inc, et al Defendant

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