Preview
Filing # 122189266 E-Filed 02/26/2021 07:50:47 PM
IN THE CIRCUIT COURT FOR THE
11TH JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
DIAN OVED and Case No.: 2020-003611-CA-01
OVED MEDIA INTERNATIONAL,
INC. d/b/a EMPOWER DIGITAL,
Plaintiff,
v.
THE HEALTH SPECTRUM, LLC,
xxxxxxx xxxxx a/k/a xxxx xxxxxxx
Defendants.
/
DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT RE: STATUTE OF
LIMITATION – COUNT II UNJUST ENRICHMENT AND/OR, IN THE ALTERNATIVE,
MOTION FOR JUDGMENT ON THE PLEADINGS
Defendants, THE HEALTH SPECTRUM, LLC, and xxxxxxx xxxxx a/k/a xxxx xxxxxxx
(hereinafter collectively referred to as “Defendants”), by and through undersigned counsel, and pursuant
to Fla. R. Civ. P. 1.140(c), hereby moves for Judgment on the Pleadings and/or, in the alternative,
Motion for Summary Judgment pursuant to Fla. R. Civ. P 1.150 dismissing the Plaintiffs amended
complaint’s count II claim for Unjust Enrichment with prejudice, and in support thereof, states as
follows:
I. Plaintiffs Amended Complaint’s Count II Claim for Unjust Enrichment is Barred by
the Statute of Limitations
1. Count II of Plaintiffs amended complaint for Unjust Enrichment should be dismissed with prejudice
because the allegations pled reflect that the claim is time-barred by the statute of limitations.
A statute of limitations defense is properly raised where "the facts on the face of the pleadings show
that the statute of limitations bars the action". Cabral v. City of Miami Beach, 76 So.3d 324, 326
(Fla. 3d DCA 2011); see also Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004). In
Florida, claims for unjust enrichment and monies had and received are governed by a four-
year statute of limitations period. See Fla. Stat. § 95.11(3)(k) ("within four years...a legal or
equitable action on a contract, obligation, or liability not founded on a written instrument, including
an action for the sale and delivery of goods, wares, and merchandise, and on store accounts").
2. For purposes of computing the time within which an action "accrues" for the purposes of
the statute of limitation, Fla. Stat. § 95.031(1) provides that "a cause of action accrues when the last
element constituting the cause of action occurs". See Fla. Stat. § 95.031(1). A cause of action
for unjust enrichment accrues when the "the defendant knowingly and voluntarily accepts the benefit
bestowed upon him". Fowler v. Towse, 900 F.Supp. 454, 460 (S.D. Fla. 1995) (applying Fla. Stat. §
95.031(1)). “The essential elements of an action under the theory of unjust enrichment are a benefit
conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit, and the
defendant's acceptance and retention of the benefit under circumstances that make it inequitable for
him to retain it without paying the value thereof”. See Rite-Way Painting and Plastering Inc. v Tetor,
582 So. 2d 15 (Fla. 2d DCA 1999) (Citing 17 C.J.S. Contract Section 6, 1955)
3. The same analysis applies for a claim for monies had and received since unjust enrichment is the
more modern action for monies Had and received. See Hall v. Humana Hospital Daytona Beach,
686 So.2d 653, 656 (Fla. 5th DCA 1996). Here, Plaintiffs amended complaint claim for
unjust enrichment accrued on April 8, 2015 the date Plaintiffs allege Defendants received or
“accepted the funds” in accordance with the “Loan Agreement” attached as Exhibit “A” to their
complaint and as pled and alleged in paragraphs 7, 8, 19,. 20, 26, 27, and 30.
4. Accordingly, the statute of limitations on the claim for unjust enrichment expired four years later
on April 8, 2019. The Plaintiffs filed their initial complaint on February 14, 2020, or rather, over ten
(10) months past the statute of limitation tolling deadline.
II. The Unjust Enrichment Claim is Time Barred
5. The statute of limitations for an unjust enrichment action in Florida is four years from when the
cause of action accrues. Grove Isle Ass'n, Inc. v. Grove Isle Associates, LLLP, 137 So. 3d 1081,
1094 (Fla. 3d DCA 2014) (citing Swafford v. Schweitzer, 906 So. 2d 1194, 1195 (Fla. 4th DCA
2005). Under Florida law an unjust enrichment claim accrues when the benefit is
conferred. Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So. 2d 571, 577 (Fla. 4th DCA
2006); Swafford, 906 So. 2d at 1195-96); see Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So.
3d 855, 859 (Fla. 4th DCA 2013); Miraglia v. Beltran, 137 So. 3d 1021 (Fla.
2014) ("Statutes of limitations on unjust enrichment or quantum meruit claims generally begin to
run upon the occurrence of the event that created the uncompensated benefit in the defendant, i.e.,
the plaintiff performed the labor that benefitted the defendant or the defendant obtained the
subject property or goods") (Emphasis added).
6. In Florida, "the elements of a cause of action for unjust enrichment are 1) plaintiff conferred a
benefit on the defendant, who has knowledge of that benefit; 2) the defendant accepts and retains the
conferred benefit; and 3) under the circumstances it would be inequitable for the defendant to retain
the benefit without paying for it". N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672
(Fla. 3d DCA 2000). Actions for unjust enrichment are actions at law, not actions in
equity. See American Safety Insurance Service, Inc. v. Griggs, 959 So.2d 322 (Fla. 5th DCA 2007).
III. Legal Standard for a Motion for Judgment on the Pleadings
7. Rule 1.140(c), Fla.R.Civ.P., provides that any party may move for judgment on the pleadings after
the pleadings are closed. The applicable test in ruling on a motion for judgment on the pleadings is
the same as if the defendant made a motion to dismiss for failure to state a cause of action. Siegel v.
Whitaker, 946 So. 2d 1079, 1081 (Fla. 5th DC A 2006).
8. In deciding a motion for judgment on the pleadings, all well-pleaded material allegations of the
opposing party are taken as true, and all allegations of the moving party that have been denied are
taken as false. Briarwinds Condo. Assoc, v. Rigsby, 51 So. 3d 532, 533 (Fla. 3d DCA 2010).
A motion for judgment on the pleadings is decided only on the pleadings and attachments thereto and
may be granted only if the movant is entitled to judgment as a matter of law. See Siegel at 1081.
9. Under Florida law, a motion for judgment on the pleadings may be filed after the pleadings have been
closed. Fla.R.Civ.P., 1.140(c). The pleadings are deemed closed after the filing of the Answer.
Hughes Laboratories. Inc. v. Murphy, 666 So.2d 566 (Fla. 3d DCA 1996).
10. Florida courts have routinely granted judgment on the pleadings for defendants on the defense that
the statute of limitations bars the plaintiff's claim when the pleadings alone demonstrate that the
action was filed outside of the applicable statute of limitations period. Federal Insurance Co. v.
Southwest Florida Retirement Center, Inc., 707 So.2d 1119 (Fla. 1998)(upholding trial court's entry
of judgment on the pleadings for defendant where plaintiff failed to file complaint within
applicable statute of limitations period); Brown v. Nationscredit Financial Services Corp., 32 So.3d
661 (Fla. 1st DC A 2010)(Judgment on the pleadings properly entered for defendant on expiration
of statute of limitations and plaintiff failed to timely file complaint); Elizabeth N. v. Riverside Group;
585 So.2s 376 (Fla. 1st DCA 1991)(Judgment on the pleadings properly entered for defendant for
Plaintiff's failure to timely file complaint); Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975)
(Judgment on the pleadings properly entered for defendant on expiration
of statute of limitations); Dibble v. Jensen, 129 So.2d 162 (Fla. 3d DCA 1961)( Judgment on
the pleadings properly granted due to expiration of the statute of limitations).
IV. Standard Of Review Motion For Summary Judgment
11. Florida Rules of Civil Procedure Rule 1.510 states that a party may "move for a
summary judgment in that party's favor upon all or any part thereof with or without supporting
affidavits at any time after the expiration of twenty (20) days from the commencement of the action
or after service of a motion for summary judgment by the adverse party." Neither Florida Rules of
Civil Procedure Rule 1.510 nor Rule 1.530 makes a distinction between such final
summary judgment and a summary judgment which concludes only a part of the issues between the
parties. Mendez v. West Flagler Family Asso., 303 So. 2d 1 (Fla. 1974).
12. Summary judgment procedure is designed to end litigation quickly, efficiently, and fairly, and '"to
relieve the litigant and the court from the trial of unnecessary lawsuits.'" Tucker v. American
Employers Insurance Co., 218 So.2d 221, 228 (Fla. 4th DCA 1969) quoting General Truck Sales.
Inc. v. American Fire & Casualty Co., 100 So.2d 202, 203 (Fla. 3d DCA 1958). The
summary judgment procedure avoids the expense and delay of trial when no dispute exists
concerning essential material facts. Foeel v. Staples the Office Superstore. Inc., 750 So.2d 30 (Fla.
2d DCA 1998). The burden is on the moving party "to prove the non-existence of genuine triable
issues." Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). This objective comports with the mandate
of Fla.R.Civ.P. 1.010 "to secure the just, speedy, and inexpensive determination" of disputes.
WHEREFORE, the Defendants, pray for an order from the court dismissing Count II of the Plaintiff's
amended complaint for Unjust Enrichment , awarding reasonable attorney's fees pursuant to
Florida Statute § 57.105 for such other and further relief this court deems just and proper.
CERTIFICATE OF SERVICE
Sent CCF/electronic filing Courtmap to Attorney for Plaintiff, Scott Wellikoff, Esq. Adler
Wellikoff, Esq, Email 1: swellikoff@adwellgroup.com 1300 N. Federal Hwy., Suite 107 Boca
Raton, Florida 33432 on February 24, 2021.
/s/ Daniel E. Tropp
Daniel E. Tropp, Esq.
Attorney for Defendants
The Health Spectrum LLC and
Defendant, xxxxxxx xxxxx a/k/a xxxx
xxxxxxx, individual
5750 Collins Avenue, Suite 4A
Miami Beach, FL 33140
(tel) 786-306-1293
(fax) 305-672-2178
Email: dantropp@bellsouth.net
2
Preview
Filing # 122189266 E-Filed 02/26/2021 07:50:47 PM IN THE CIRCUIT COURT FOR THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA DIAN OVED and Case No.: 2020-003611-CA-01 OVED MEDIA INTERNATIONAL, INC. d/b/a EMPOWER DIGITAL, Plaintiff, v. THE HEALTH SPECTRUM, LLC, xxxxxxx xxxxx a/k/a xxxx xxxxxxx Defendants. / DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT RE: STATUTE OF LIMITATION – COUNT II UNJUST ENRICHMENT AND/OR, IN THE ALTERNATIVE, MOTION FOR JUDGMENT ON THE PLEADINGS Defendants, THE HEALTH SPECTRUM, LLC, and xxxxxxx xxxxx a/k/a xxxx xxxxxxx (hereinafter collectively referred to as “Defendants”), by and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.140(c), hereby moves for Judgment on the Pleadings and/or, in the alternative, Motion for Summary Judgment pursuant to Fla. R. Civ. P 1.150 dismissing the Plaintiffs amended complaint’s count II claim for Unjust Enrichment with prejudice, and in support thereof, states as follows: I. Plaintiffs Amended Complaint’s Count II Claim for Unjust Enrichment is Barred by the Statute of Limitations 1. Count II of Plaintiffs amended complaint for Unjust Enrichment should be dismissed with prejudice because the allegations pled reflect that the claim is time-barred by the statute of limitations. A statute of limitations defense is properly raised where "the facts on the face of the pleadings show that the statute of limitations bars the action". Cabral v. City of Miami Beach, 76 So.3d 324, 326 (Fla. 3d DCA 2011); see also Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004). In Florida, claims for unjust enrichment and monies had and received are governed by a four- year statute of limitations period. See Fla. Stat. § 95.11(3)(k) ("within four years...a legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts"). 2. For purposes of computing the time within which an action "accrues" for the purposes of the statute of limitation, Fla. Stat. § 95.031(1) provides that "a cause of action accrues when the last element constituting the cause of action occurs". See Fla. Stat. § 95.031(1). A cause of action for unjust enrichment accrues when the "the defendant knowingly and voluntarily accepts the benefit bestowed upon him". Fowler v. Towse, 900 F.Supp. 454, 460 (S.D. Fla. 1995) (applying Fla. Stat. § 95.031(1)). “The essential elements of an action under the theory of unjust enrichment are a benefit conferred upon a defendant by the plaintiff, the defendant's appreciation of the benefit, and the defendant's acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof”. See Rite-Way Painting and Plastering Inc. v Tetor, 582 So. 2d 15 (Fla. 2d DCA 1999) (Citing 17 C.J.S. Contract Section 6, 1955) 3. The same analysis applies for a claim for monies had and received since unjust enrichment is the more modern action for monies Had and received. See Hall v. Humana Hospital Daytona Beach, 686 So.2d 653, 656 (Fla. 5th DCA 1996). Here, Plaintiffs amended complaint claim for unjust enrichment accrued on April 8, 2015 the date Plaintiffs allege Defendants received or “accepted the funds” in accordance with the “Loan Agreement” attached as Exhibit “A” to their complaint and as pled and alleged in paragraphs 7, 8, 19,. 20, 26, 27, and 30. 4. Accordingly, the statute of limitations on the claim for unjust enrichment expired four years later on April 8, 2019. The Plaintiffs filed their initial complaint on February 14, 2020, or rather, over ten (10) months past the statute of limitation tolling deadline. II. The Unjust Enrichment Claim is Time Barred 5. The statute of limitations for an unjust enrichment action in Florida is four years from when the cause of action accrues. Grove Isle Ass'n, Inc. v. Grove Isle Associates, LLLP, 137 So. 3d 1081, 1094 (Fla. 3d DCA 2014) (citing Swafford v. Schweitzer, 906 So. 2d 1194, 1195 (Fla. 4th DCA 2005). Under Florida law an unjust enrichment claim accrues when the benefit is conferred. Barbara G. Banks, P.A. v. Thomas D. Lardin, P.A., 938 So. 2d 571, 577 (Fla. 4th DCA 2006); Swafford, 906 So. 2d at 1195-96); see Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So. 3d 855, 859 (Fla. 4th DCA 2013); Miraglia v. Beltran, 137 So. 3d 1021 (Fla. 2014) ("Statutes of limitations on unjust enrichment or quantum meruit claims generally begin to run upon the occurrence of the event that created the uncompensated benefit in the defendant, i.e., the plaintiff performed the labor that benefitted the defendant or the defendant obtained the subject property or goods") (Emphasis added). 6. In Florida, "the elements of a cause of action for unjust enrichment are 1) plaintiff conferred a benefit on the defendant, who has knowledge of that benefit; 2) the defendant accepts and retains the conferred benefit; and 3) under the circumstances it would be inequitable for the defendant to retain the benefit without paying for it". N.G.L. Travel Associates v. Celebrity Cruises, Inc., 764 So.2d 672 (Fla. 3d DCA 2000). Actions for unjust enrichment are actions at law, not actions in equity. See American Safety Insurance Service, Inc. v. Griggs, 959 So.2d 322 (Fla. 5th DCA 2007). III. Legal Standard for a Motion for Judgment on the Pleadings 7. Rule 1.140(c), Fla.R.Civ.P., provides that any party may move for judgment on the pleadings after the pleadings are closed. The applicable test in ruling on a motion for judgment on the pleadings is the same as if the defendant made a motion to dismiss for failure to state a cause of action. Siegel v. Whitaker, 946 So. 2d 1079, 1081 (Fla. 5th DC A 2006). 8. In deciding a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party are taken as true, and all allegations of the moving party that have been denied are taken as false. Briarwinds Condo. Assoc, v. Rigsby, 51 So. 3d 532, 533 (Fla. 3d DCA 2010). A motion for judgment on the pleadings is decided only on the pleadings and attachments thereto and may be granted only if the movant is entitled to judgment as a matter of law. See Siegel at 1081. 9. Under Florida law, a motion for judgment on the pleadings may be filed after the pleadings have been closed. Fla.R.Civ.P., 1.140(c). The pleadings are deemed closed after the filing of the Answer. Hughes Laboratories. Inc. v. Murphy, 666 So.2d 566 (Fla. 3d DCA 1996). 10. Florida courts have routinely granted judgment on the pleadings for defendants on the defense that the statute of limitations bars the plaintiff's claim when the pleadings alone demonstrate that the action was filed outside of the applicable statute of limitations period. Federal Insurance Co. v. Southwest Florida Retirement Center, Inc., 707 So.2d 1119 (Fla. 1998)(upholding trial court's entry of judgment on the pleadings for defendant where plaintiff failed to file complaint within applicable statute of limitations period); Brown v. Nationscredit Financial Services Corp., 32 So.3d 661 (Fla. 1st DC A 2010)(Judgment on the pleadings properly entered for defendant on expiration of statute of limitations and plaintiff failed to timely file complaint); Elizabeth N. v. Riverside Group; 585 So.2s 376 (Fla. 1st DCA 1991)(Judgment on the pleadings properly entered for defendant for Plaintiff's failure to timely file complaint); Fletcher v. Dozier, 314 So.2d 241 (Fla. 1st DCA 1975) (Judgment on the pleadings properly entered for defendant on expiration of statute of limitations); Dibble v. Jensen, 129 So.2d 162 (Fla. 3d DCA 1961)( Judgment on the pleadings properly granted due to expiration of the statute of limitations). IV. Standard Of Review Motion For Summary Judgment 11. Florida Rules of Civil Procedure Rule 1.510 states that a party may "move for a summary judgment in that party's favor upon all or any part thereof with or without supporting affidavits at any time after the expiration of twenty (20) days from the commencement of the action or after service of a motion for summary judgment by the adverse party." Neither Florida Rules of Civil Procedure Rule 1.510 nor Rule 1.530 makes a distinction between such final summary judgment and a summary judgment which concludes only a part of the issues between the parties. Mendez v. West Flagler Family Asso., 303 So. 2d 1 (Fla. 1974). 12. Summary judgment procedure is designed to end litigation quickly, efficiently, and fairly, and '"to relieve the litigant and the court from the trial of unnecessary lawsuits.'" Tucker v. American Employers Insurance Co., 218 So.2d 221, 228 (Fla. 4th DCA 1969) quoting General Truck Sales. Inc. v. American Fire & Casualty Co., 100 So.2d 202, 203 (Fla. 3d DCA 1958). The summary judgment procedure avoids the expense and delay of trial when no dispute exists concerning essential material facts. Foeel v. Staples the Office Superstore. Inc., 750 So.2d 30 (Fla. 2d DCA 1998). The burden is on the moving party "to prove the non-existence of genuine triable issues." Holl v. Talcott, 191 So.2d 40, 43 (Fla. 1966). This objective comports with the mandate of Fla.R.Civ.P. 1.010 "to secure the just, speedy, and inexpensive determination" of disputes. WHEREFORE, the Defendants, pray for an order from the court dismissing Count II of the Plaintiff's amended complaint for Unjust Enrichment , awarding reasonable attorney's fees pursuant to Florida Statute § 57.105 for such other and further relief this court deems just and proper. CERTIFICATE OF SERVICE Sent CCF/electronic filing Courtmap to Attorney for Plaintiff, Scott Wellikoff, Esq. Adler Wellikoff, Esq, Email 1: swellikoff@adwellgroup.com 1300 N. Federal Hwy., Suite 107 Boca Raton, Florida 33432 on February 24, 2021. /s/ Daniel E. Tropp Daniel E. Tropp, Esq. Attorney for Defendants The Health Spectrum LLC and Defendant, xxxxxxx xxxxx a/k/a xxxx xxxxxxx, individual 5750 Collins Avenue, Suite 4A Miami Beach, FL 33140 (tel) 786-306-1293 (fax) 305-672-2178 Email: dantropp@bellsouth.net 2