Preview
Filing # 117318571 E-Filed 11/29/2020 10:49:49 AM
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2020-022556-CA-01
MEDICAL SUPPLIES OF AMERICA LLC,
a Florida limited liability company,
Plaintiff,
vs.
FIRM HEALTHCARE SYSTEM LLC,
a Delaware limited liability company,
Defendant.
_____________________________________/
FIRM HEALTHCARE SYSTEMS LLC,
Counter-Plaintiff,
vs.
MEDICAL SUPPLIES OF AMERICA LLC,
Counter-Defendant.
_____________________________________/
AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM
(with Demand for a Trial by Jury)
Defendant, FIRM HEALTHCARE SYSTEM LLC (“FHS”), by and through its
undersigned counsel and pursuant to the Florida Rules of Civil Procedures, files this amended
pleading in response to the Complaint of the Plaintiff, MEDICAL SUPPLIES OF AMERICA LLC
(“MSA”).1
1
Pursuant to Fla. R. Civ. P. 1.190(a), FHS files this amended pleading to make minor changes to
the original pleading filed on November 17, 2020.
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
ANSWER
Pursuant to subdivision (c) of Rule 1.110 of the Florida Rules of Civil Procedure, FHS
makes the following specific responses to the allegations of the Complaint:
Nature of the Action
1. Admit only that MSA alleges that it has an action for breach of contract and claims
for damages under Sections 672.703 (seller’s remedies in general) and 672.710 (incidental
damages) of the Florida Statutes.
2. Admit only that this Court has jurisdiction over this action.
3. Admit only that venue is proper in this Court.
4. Admitted that MSA is a Florida limited liability company and a merchant as that
term is defined under subsection (4) of Section 672.104 of the Florida Statutes.
5. Admitted that FHS is a Delaware limited liability company with its principal place
of business in La Crosse, Wisconsin and also a merchant under subsection (4) of Section 672.104
of the Florida Statutes.
General Allegations
6. Without knowledge, and, therefore, denied.
7. Admitted that MSA executed the Agreement attached as Exhibit A to the
Complaint.
8. Admitted that MSA knew that FHS sought to obtain goods from MSA with which
to fulfill contract purchases by the U.S. Dep’t of Veterans Affairs (the “VA”) from FHS.
9. Denied.
2
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
10. Admitted with the exception that the goods were shipped late and in an haphazard
manner.
11. Denied.
12. Denied.
13. Admit only that shipments of non-conforming goods were received by the VA
hospitals on or about these dates.
14. Denied that the conditions precedent of the Agreement have been performed or
occurred, including, without limitation, the failure by MSA to perform the non-assignable
obligations that it was required to perform under the Agreement; the refusal of the VA to transfer
any funds to FHS for the non-conforming and delayed shipments by MSA to the hospitals of the
VA, which rejected all shipments for reasons attributable to MSA, not FHS; and the failure of
MSA to perform all of the conditions for a resale under Section 672.706 of the Florida Statutes.
15. Denied.
16. Without knowledge, and, therefore, denied.
17. Denied.
18. Without knowledge, and, therefore, denied.
19. Without knowledge, and, therefore, denied.
20. Admitted.
21. Denied. See paragraph 14.
Count I
Breach of Contract
22. The responses to the preceding paragraphs are repeated here.
23. Admitted.
3
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
24. Denied.
25. Denied.
26. Admit only that FHS refused to pay for late and haphazard shipments of non-
conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof
properly revoked.
27. Denied.
To the extent any allegation of fact is intended by the prayer for relief that follows Count I,
such allegation is denied. Further, FHS states in response to this prayer for relief that a take-nothing
judgment is due to be entered against MSA for the claim alleged in Count I.
Count II
Action for Damages Pursuant to Section 672.708
28. The responses to the preceding paragraphs are repeated here.
29. Denied.
30. Admit only that FHS refused to pay for late and haphazard shipments of non-
conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof
properly revoked.
31. Denied.
32. Denied that MSA is entitled to recover any damages from FHS pursuant to Section
672.708.
33. Denied that MSA is entitled to recover any damages from FHS pursuant to Section
672.710.
4
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
To the extent any allegation of fact is intended by the prayer for relief that follows Count II,
such allegation is denied. Further, FHS states in response to this prayer for relief that a take-nothing
judgment is due to be entered against MSA for the claim alleged in Count II.
Count III
Action for Damages Pursuant to Section 672.709
34. The responses to the preceding paragraphs are repeated here.
35. Denied.
36. Admit only that FHS refused to pay for late and haphazard shipments of non-
conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof
properly revoked.
37. Denied that MSA is entitled to recover any damages from FHS pursuant to Section
672.709.
38. Denied that MSA is entitled to recover any damages from FHS pursuant to Section
672.710.
To the extent any allegation of fact is intended by the prayer for relief that follows Count III,
such allegation is denied. Further, FHS states in response to this prayer for relief that a take-nothing
judgment is due to be entered against MSA for the claim alleged in Count III.
Count IV
Action for Damages Pursuant to Section 672.706
39. The responses to the preceding paragraphs are repeated here.
40. The alternative pleading strategy of MSA is not an allegation that FHS must admit
or deny, and, therefore, no response is made.
41. Denied.
5
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
42. Admit only that FHS refused to pay for late and haphazard shipments of non-
conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof
properly revoked.
43. Denied.
44. Denied that MSA is entitled to recover any damages pursuant to Section 672.706.
45. Denied that MSA is entitled to recover any damages from FHS pursuant to Section
672.710.
46. To the extent any allegation of fact is intended by the prayer for relief that follows
Count IV, such allegation is denied. Further, FHS states in response to this prayer for relief that a
take-nothing judgment is due to be entered against MSA for the claim alleged in Count IV.
47. Any allegation in the Complaint that FHS has not expressly admitted in the above
paragraphs is hereby denied and strict proof thereof is demanded by FHS.
AFFIRMATIVE DEFENSES
Pursuant to subdivision (d) of Rule 1.110 of the Florida Rules of Civil Procedure, FHS
raises the following additional defenses to the claims asserted in the Complaint:
1. Prior Breach: As its first affirmative defense, FHS alleges that any alleged breach
by FHS was preceded and excused by prior breaches of the Agreement by MSA, which included,
without limitation, late and haphazard shipment of non-medical masks, which breaches led to
rejection and/or revocation and non-payment by the VA and FHSA.
2. Misrepresentation: As its second affirmative defense, FHS alleges that MSA
cannot enforce the Agreement based upon the misrepresentations of its representatives.
6
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
a. On May 26, 2020, Tyler Peters told Roxroy Barrett, the authorized representative
of FHS, before and in the Agreement itself, that MSA would ship “medical masks” to VA Hospitals
throughout the country. In addition, before the Agreement was executed by FHS, Mr. Peters
represented by photograph that the medical masks were being shipped in 50-unit boxes. Mr. Peters
is an authorized representative of MSA.
b. After Mr. Barrett signed the Agreement, he learned that MSA would not ship any
goods on May 26 as agreed. Mr. Peters and Adam Michael Risolia then stated the Goods would
be shipped on May 27, 2020. Upon information and belief, Mr. Risolia is an authorized
representative of MSA.
c. After Mr. Barrett learned that MSA would not ship any goods on May 27, 2020,
Mr. Risolia stated that all shipments would be made by 12:000 noon on May 28, 2020, for arrival
at the VA hospitals by 5:00 p.m. on June 1, 2020. Mr. Barrett later learned that MSA would not
ship by 12:00 noon or make arrangements that ensured delivery by 5:00 p.m. on June 1, 2020.
d. After the VA questioned the Goods, Mr. Peters represented that the Goods would
pass independent testing to determine if they were actually medical masks as represented by MSA.
The above statements were false when made. The goods shipped were not medical masks;
instead, they were non-medical masks. Mr. Peters knew or should have known this when he sold
them and represented to Mr. Barrett that the Goods would pass independent testing. Likewise, he
knew or should have known the Goods were not being shipped in fifty-unit boxes. Each time that
Mr. Peters and Mr. Risolia made a representation to Mr. Barrett about when the Goods would be
shipped or would arrive, they knew that their representations were false.
7
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
The false representations were before the Agreement was executed, in the Agreement and
after the Agreement, in writing, including texts or electronic mail and the Agreement itself, to
induce FHS to execute the Agreement or to induce FHS to not cancel the Agreement and make
arrangements with another supplier. In fact, FHS actually relied upon the misrepresentations to its
detriment. As a result, MSA cannot enforce the Agreement against FHS.
3. Waiver: As its third affirmative defense, FHS alleges that after the VA refused to
pay for the late/haphazard shipment of the masks, MSA, through its authorized representative,
intentionally and expressly waived or relinquished any alleged claim or right under the Agreement,
writing to FHS that “I absolutely understand. I am mortified at what I say today and I 100% agree
that is not an acceptable way to do business. . . . the fault of how those goods arrived is on my
companies [sic] shoulders alone . . ..”
4. Estoppel and Failure to Mitigate: As its fourth affirmative defense, FHS alleges
that MSA is estopped to assert any claims for damages under the Agreement. After the VA refused
under any circumstance to pay for the Goods, FHS, in reliance upon statements of MSA, believed
that MSA would resell the Goods and not sue under the Agreement if FHS cooperated in the return
of the Goods to MSA and the efforts of MSA to resell the Goods. Only after MSA knew that FHS
had made arrangements for return of the Goods did MSA begin to threaten to sue FHS. MSA
should be estopped from asserting any claims for damages against FHS. Further, to the extent that
MSA has failed to mitigate its damages, any alleged damages of MSA must be reduced
accordingly.
5. Set-off, Recoupment, Resales, and Returns to Manufacturer: As its fifth
affirmative defense, FHS alleges that any award in favor of MSA must be reduced by all amounts
8
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
owed by MSA to FHS, by way of either set-off or recoupment, including, without limitation, any
damages proven by FHS in its Counterclaim, any resales of the Goods made by MSA after the
Goods were returned by FHS, and any subsequent returns of the Goods by MSA to the
manufacturer(s).
REQUEST FOR ATTORNEYS’ FEES
Pursuant to Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) and its progeny, FHS hereby
gives notice to MSA that FHS, according to the Agreement and any statute, rule, or case law that
may become applicable to these proceedings, will seek to recover all fees and costs incurred by
FHS to the undersigned firm of attorneys in defense of the claims asserted in the Complaint.
COUNTERCLAIM
Pursuant to Rule 1.170 of the Florida Rules of Civil Procedure, FHS hereby asserts claims
that FHS has against MSA.
The Parties, Jurisdiction & Venue
1. FHS is the counter-plaintiff, and MSA is the counter-defendant. As MSA filed this
action, the Court has personal jurisdiction over the counter-defendant, and no initial process need
issue.
2. As this Court has subject matter jurisdiction and venue over the claims asserted in
the Complaint, this Court has jurisdiction and venue over the claims asserted in this Counterclaim.
General Allegations
3. Since in or about March 2020, MSA advertised itself to be a supplier of medical
masks and other medical supplies.
9
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
4. In May 2020, FHS was looking to obtain medical masks to meet purchase
requirements of the VA, including those in a written contract (the “VA Contract”) for over one
million disposable medical masks.
5. Roxroy Barrett, an authorized representative of FHS, inquired of Tyler Peters, an
authorized representative of MSA, if MSA held this number of medical masks in inventory.
6. Mr. Peters told Mr. Barrett that MSA had this quantity of medical masks, and
requested information about the medical supplies sought by the VA.
7. Mr. Barrett provided Mr. Peters with a copy of the VA Contract, including two
modifications thereof.
8. Thereafter, MSA, through Mr. Peters, represented in writing that MSA would sell
1,016,050 “three-ply medical masks” to FHS for a total price of $445,341, inclusive of shipping.
9. On May 26, 2020, Mr. Peters presented Mr. Barrett with a written sales agreement
between MSA and FHS (the “Agreement”), which document was drafted by attorneys for MSA
and executed by Mr. Peters on behalf of MSA. A copy of the Agreement is attached to the
Complaint as Exhibit A and, therefore, is not unnecessarily attached to this pleading. In addition,
Mr. Peter represented to Mr. Barrett, in a photograph provided before the Agreement was executed
by FHS, that the medical masks being shipped were contained in fifty-unit boxes.
10. Consistent with these representations made by Mr. Peters to Mr. Barrett, the
Agreement also expressly represented that MSA would sell and FHS would purchase 1,016,050
“3-ply Disposable Medical Masks” (the “Goods”) for the price of $445,341.00,” which Goods
would be shipped by MSA to the VA Hospitals no later than “May 26, 2020.”
10
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
11. Based upon the representations made before and in the Agreement, Mr. Barrett
signed the Agreement on behalf of MSA and returned the Agreement to MSA on May 26.
12. On May 27, 2020, Mr. Peters then revealed to Mr. Barrett that the Goods had not
been shipped by MSA to FHS on May 26, 2020 as represented.
13. Mr. Peters and Adam Michael Risolia, another authorized representative of MSA,
then represented in writing to Mr. Barrett that the medical masks would be shipped on May 27,
2020.
14. However, at the day’s end, Mr. Risolia, then revealed that the Goods had not yet
been shipped.
15. Mr. Risolia then represented that all of the Goods would be shipped by 12:00 noon,
the following day, for arrival at the VA Hospitals before 5:00 p.m. on June 1, 2020.
16. Though MSA was not entitled to payment under the Agreement by FHS until VA
wired funds to FHS, Mr. Risolia, on May 28, 2020, demanded that FHS front $15,000 in freight
charges from Miami to the VA Hospitals.
17. As there was no longer sufficient time to obtain the Goods from another supplier,
Mr. Barrett acceded to the FHS’ demand and advanced the freight charges by personal credit card
transaction, even though FHS was under no obligation to do so.2
2
The old saying that, “no good deed goes unpunished,” comes to mind upon review of texts sent
months later to Mr. Barrett about this credit card transaction. Adam Michael Risolia (AMR): “We
filed our lawsuit today and served the registered agent of your business. Just a heads up. Weather
is a bit stormy in Florida where we filed also something to keep in mind for you if you make it
down here for the court case. I’ll have a judgment on you in no time and that will preclude you
from ever getting another gov’t contract. I’m well aware of how this works. Also as far as me
‘crying’ suck my d—k. You had to put the shipping charges on your wife’s credit card and it got
declined. I’ll f---ing decimate you in court. They don’t give you public defenders for ripping people
off.” Roxroy Barrett (RB): “Free advice Lawyer’s get paid to take your money. You seem to have
11
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
18. In fact, the Goods eventually shipped by MSA were not medical masks; (b) the
Goods were not shipped by MSA on May 26, May 27 or even before 12:00 noon on May 28; (c)
due to the late shipment, the Goods were not delivered on June 1, 2020; and (d) the masks were
not shipped in boxes of fifty (50) units.
19. Because of the late and haphazard shipment of the masks, the VA refused to accept
the Goods when they eventually arrived at the VA’s hospitals.
20. On or about June 8, 2020, due to the manner of shipment, the VA demanded the
Goods be independently tested by a third party or removed from the VA Hospitals.
21. FHS notified MSA of the VA’s refusal to accept the Goods due to manner in which
they were shipped and the VA’s demand for removal of the Goods from its facilities or testing.
22. MSA, through Mr. Peters, admitted to FHS that MSA was to blame for the manner
in which the Goods were received at the VA Hospitals, but represented that the Goods would pass
independent testing.
23. At MSA’s request, FHS arranged for independent testing of the Goods to salvage
the VA Contract so that the VA would pay FSA, which, in turn, would then pay MSA.
24. Contrary to the representation of Mr. Peters, independent testing verified that the
Goods shipped by MSA to FHS could not be sold much less used as “medical masks.”
a lot to give.” AMR: “You don’t lol. Maybe your wife can spot you again you broke old loser. . .
At least I pay not only my bills but I take care of my family. I hope your wife doesn’t get tired of
paying for your broke a-s. Maybe once I sue the f—k out of you she will.” RB: “Is that what your
partner [Tyler Phillips] told you that my wife’s Credit card got declined. I have the receipts. . . .”
AMR: “Bc you’re broke. You paid 15k out of 26k lol. We had to cover the rest. Nice. If I were 70
years old and didn’t have 26k I would just shoot myself. . . . It got declined first. We ran it twice.
Then a whopping 15k went through. Congrats you’re still broke.”
12
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
25. As a result of these negative test results, the VA insisted that the Goods be
immediately removed from the VA Hospitals.
26. FHS so advised MSA, which then requested that FHS return the masks to Miami,
Florida, stating that MSA would look to sell the masks to someone else if FHS would return the
Goods and agree to help MSA resell the goods.
27. Though without any obligation to do so, in an effort to resolve any dispute with
MSA and comply with the demand of the VA that the Goods be immediately removed, FHS paid
the freight expense to return the goods to Miami.
28. Within days of FHS’ payment of the freight expense to return the Goods, MSA
reneged on what MSA had said to Mr. Barrett to induce MSA to return the Goods.
29. Once the Goods safely arrived in Miami, MSA began sending threatening and later
demeaning messages to MSA and its managing member, Mr. Barrett, himself a veteran of the
United States Navy.
30. MSA breached all of its representations, warranties, and obligations relating to the
Goods, the shipment of the Goods, and the packaging of the Goods.
31. All conditions precedent to the assertion of claims by FHS against MSA and the
imposition of liability upon MSA in favor of FHS have been performed, have occurred, or have
been waived by MSA.
Count One
Breach of the Agreement
32. The general allegations are incorporated here.
33. MSA has committed a total breach of the Agreement or breaches that go to the
whole contract or to terms of the bargain so essential that FHS had the right to cancel the entire
13
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
contract and recover all of its damages under Section 672.711 of the Florida Statutes, including,
without limitation, all incidental damages in accordance with Section 672.715 of the Florida
Statutes.
34. The Goods were not shipped timely under the Agreement or in a reasonable
manner. The fifty-unit boxes were not used; instead, the Goods were shipped in a manner that was
utterly disorganized and haphazard.
35. The VA demanded third-party testing to be assured the late-arriving Goods in
complete disarray were legitimate.
36. After third-party testing, it was determined that the Goods were not medical masks
as warranted in the Agreement.
37. MSA is entitled to recover the freight expense paid on May 28, 2020 and other
monetary damages, including, without limitation, incidental damages for testing the Goods and
then the freight expense to return the Goods to Miami.
38. In accordance with the Agreement, FHS is also entitled to recover all of its
attorneys’ fees in connection with the prosecution of this counterclaim.
Count Two
Misrepresentation
39. The general allegations are incorporated here.
40. As alleged above, the following representations were made by authorized
representatives of MSA as follows:
a. Mr. Peters represented that the Goods were medical masks.
b. Mr. Peters represented that the Goods would be shipped in fifty-unit boxes.
14
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
c. Mr. Peters and Mr. Risolia represented that the Goods would be shipped on May
26, May 27, and before 5:00 p.m. on May 28.
d. Mr. Risolia represented that the Goods would arrive at the VA hospitals before 5:00
p.m. on June 1.
e. Mr. Peters represented that the Goods would pass independent testing to determine
if they were medical masks.
41. Each of the above representations were false when made:
a. The Goods were not medical masks, nor were the masks even remotely capable of
passing independent testing.
b. MSA had no intention of shipping the Goods in 50-unit boxes when this
misrepresentation was made. Instead, to save packing and/or freight costs, MSA
knew it would ship the Goods in plastic bags.
c. MSA had no intention of shipping all of the Goods on May 26, May 27, or before
12:00 noon on May 28, and these representations about when shipping would occur
and the shipments would be received by the VA hospitals were made to conceal
MSA’s inability to perform in accordance with the deadline in the Agreement or
any extension of the deadline that FHS generously permitted.
42. MSA at all times material, knew or should have known that MSA was not selling
medical masks, that the masks could not pass independent testing, and that the masks were not
being shipped in fifty-unit boxes. Further, MSA at all times knew that the representations about
when the Goods would be shipped and the representation about when the goods would be received
were false when made.
15
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
43. MSA intended that Mr. Barrett would rely upon the misrepresentations.
a. MSA intended that Mr. Barrett would rely upon the misrepresentations before the
Agreement to execute the Agreement.
b. MSA intended that Mr. Barrett would rely upon the misrepresentations after the
Agreement to not cancel the Agreement when FHS had a right to do so based upon
the failure of MSA to ship the Goods on time or package them in fifty-unit boxes
rather than plastic bags.
c. MSA intended that Mr. Barrett would rely upon misrepresentations made after the
VA rejected the Goods to induce FHS to incur expenses for independent testing and
return shipping, which expenses should have been paid by MSA.
44. FHS actually relied upon the false representations in that Mr. Barrett would not
have signed the Agreement on behalf of FHS nor authorized shipment under the Agreement on
behalf of FHS nor incurred freight, testing, and other expenses on behalf of FHS if Mr. Barrett
would have known of the falsity of the representations made by MSA.
45. As a result of FHS’s actual reliance upon the misrepresentations of MSA, FHS is
entitled to rescind or cancel the Agreement and/or recover actual damages from MSA.
Prayer for Relief
WHEREFORE, the defendant/counter-plaintiff requests that the Court enter a judgment
that awards the plaintiff/counter-defendant nothing on the Complaint and awards the
defendant/counter-plaintiff on the Amended Counterclaim (a) the remedy of rescission, (b)
damages, (b) pre-judgment interest on all damages, (c) attorneys’ fees and court costs incurred in
the defense of the Complaint and prosecution of the Amended Counterclaim, (d) post-judgment
16
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
CASE NO.: 2020-022556-CA-01
interest, and/or (e) such other and further relief to which the defendant/counter-plaintiff shows
itself to be entitled, including, without limitation, nominal damages, if appropriate.
DEMAND FOR JURY TRIAL
Pursuant to Rule 1.430, defendant/counter-plaintiff demands a trial by jury on all issues
triable by right to a jury.
Respectfully submitted,
Attorneys for Defendant/Counter-Plaintiff,
Firm Healthcare System LLC
BENNETT & AIELLO
Temporary Address for Mail
3471 Main Highway, Suite 206
Coconut Grove, Florida 33133-5929
Phone: (305) 358-9011
Facsimile: (305) 358-9012
By: /s Paul Aiello_____________
Paul Aiello, FBN 0909033
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, pursuant to Rule 2.516 of Fla. R. Jud. Admin, on the 29th day
of November, 2020, this document was filed with the Florida Courts e-filing Portal, which system
served the document upon all attorneys and parties who have requested service pursuant to Rule
2.516.
By: /s Paul Aiello
E-mail addresses designated for service:
paiello@bennettaiello.com
lvargas@bennettaiello.com
17
BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida
Preview
Filing # 117318571 E-Filed 11/29/2020 10:49:49 AM IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 2020-022556-CA-01 MEDICAL SUPPLIES OF AMERICA LLC, a Florida limited liability company, Plaintiff, vs. FIRM HEALTHCARE SYSTEM LLC, a Delaware limited liability company, Defendant. _____________________________________/ FIRM HEALTHCARE SYSTEMS LLC, Counter-Plaintiff, vs. MEDICAL SUPPLIES OF AMERICA LLC, Counter-Defendant. _____________________________________/ AMENDED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM (with Demand for a Trial by Jury) Defendant, FIRM HEALTHCARE SYSTEM LLC (“FHS”), by and through its undersigned counsel and pursuant to the Florida Rules of Civil Procedures, files this amended pleading in response to the Complaint of the Plaintiff, MEDICAL SUPPLIES OF AMERICA LLC (“MSA”).1 1 Pursuant to Fla. R. Civ. P. 1.190(a), FHS files this amended pleading to make minor changes to the original pleading filed on November 17, 2020. BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 ANSWER Pursuant to subdivision (c) of Rule 1.110 of the Florida Rules of Civil Procedure, FHS makes the following specific responses to the allegations of the Complaint: Nature of the Action 1. Admit only that MSA alleges that it has an action for breach of contract and claims for damages under Sections 672.703 (seller’s remedies in general) and 672.710 (incidental damages) of the Florida Statutes. 2. Admit only that this Court has jurisdiction over this action. 3. Admit only that venue is proper in this Court. 4. Admitted that MSA is a Florida limited liability company and a merchant as that term is defined under subsection (4) of Section 672.104 of the Florida Statutes. 5. Admitted that FHS is a Delaware limited liability company with its principal place of business in La Crosse, Wisconsin and also a merchant under subsection (4) of Section 672.104 of the Florida Statutes. General Allegations 6. Without knowledge, and, therefore, denied. 7. Admitted that MSA executed the Agreement attached as Exhibit A to the Complaint. 8. Admitted that MSA knew that FHS sought to obtain goods from MSA with which to fulfill contract purchases by the U.S. Dep’t of Veterans Affairs (the “VA”) from FHS. 9. Denied. 2 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 10. Admitted with the exception that the goods were shipped late and in an haphazard manner. 11. Denied. 12. Denied. 13. Admit only that shipments of non-conforming goods were received by the VA hospitals on or about these dates. 14. Denied that the conditions precedent of the Agreement have been performed or occurred, including, without limitation, the failure by MSA to perform the non-assignable obligations that it was required to perform under the Agreement; the refusal of the VA to transfer any funds to FHS for the non-conforming and delayed shipments by MSA to the hospitals of the VA, which rejected all shipments for reasons attributable to MSA, not FHS; and the failure of MSA to perform all of the conditions for a resale under Section 672.706 of the Florida Statutes. 15. Denied. 16. Without knowledge, and, therefore, denied. 17. Denied. 18. Without knowledge, and, therefore, denied. 19. Without knowledge, and, therefore, denied. 20. Admitted. 21. Denied. See paragraph 14. Count I Breach of Contract 22. The responses to the preceding paragraphs are repeated here. 23. Admitted. 3 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 24. Denied. 25. Denied. 26. Admit only that FHS refused to pay for late and haphazard shipments of non- conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof properly revoked. 27. Denied. To the extent any allegation of fact is intended by the prayer for relief that follows Count I, such allegation is denied. Further, FHS states in response to this prayer for relief that a take-nothing judgment is due to be entered against MSA for the claim alleged in Count I. Count II Action for Damages Pursuant to Section 672.708 28. The responses to the preceding paragraphs are repeated here. 29. Denied. 30. Admit only that FHS refused to pay for late and haphazard shipments of non- conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof properly revoked. 31. Denied. 32. Denied that MSA is entitled to recover any damages from FHS pursuant to Section 672.708. 33. Denied that MSA is entitled to recover any damages from FHS pursuant to Section 672.710. 4 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 To the extent any allegation of fact is intended by the prayer for relief that follows Count II, such allegation is denied. Further, FHS states in response to this prayer for relief that a take-nothing judgment is due to be entered against MSA for the claim alleged in Count II. Count III Action for Damages Pursuant to Section 672.709 34. The responses to the preceding paragraphs are repeated here. 35. Denied. 36. Admit only that FHS refused to pay for late and haphazard shipments of non- conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof properly revoked. 37. Denied that MSA is entitled to recover any damages from FHS pursuant to Section 672.709. 38. Denied that MSA is entitled to recover any damages from FHS pursuant to Section 672.710. To the extent any allegation of fact is intended by the prayer for relief that follows Count III, such allegation is denied. Further, FHS states in response to this prayer for relief that a take-nothing judgment is due to be entered against MSA for the claim alleged in Count III. Count IV Action for Damages Pursuant to Section 672.706 39. The responses to the preceding paragraphs are repeated here. 40. The alternative pleading strategy of MSA is not an allegation that FHS must admit or deny, and, therefore, no response is made. 41. Denied. 5 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 42. Admit only that FHS refused to pay for late and haphazard shipments of non- conforming goods by MSA, which shipments were properly rejected and/or acceptance thereof properly revoked. 43. Denied. 44. Denied that MSA is entitled to recover any damages pursuant to Section 672.706. 45. Denied that MSA is entitled to recover any damages from FHS pursuant to Section 672.710. 46. To the extent any allegation of fact is intended by the prayer for relief that follows Count IV, such allegation is denied. Further, FHS states in response to this prayer for relief that a take-nothing judgment is due to be entered against MSA for the claim alleged in Count IV. 47. Any allegation in the Complaint that FHS has not expressly admitted in the above paragraphs is hereby denied and strict proof thereof is demanded by FHS. AFFIRMATIVE DEFENSES Pursuant to subdivision (d) of Rule 1.110 of the Florida Rules of Civil Procedure, FHS raises the following additional defenses to the claims asserted in the Complaint: 1. Prior Breach: As its first affirmative defense, FHS alleges that any alleged breach by FHS was preceded and excused by prior breaches of the Agreement by MSA, which included, without limitation, late and haphazard shipment of non-medical masks, which breaches led to rejection and/or revocation and non-payment by the VA and FHSA. 2. Misrepresentation: As its second affirmative defense, FHS alleges that MSA cannot enforce the Agreement based upon the misrepresentations of its representatives. 6 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 a. On May 26, 2020, Tyler Peters told Roxroy Barrett, the authorized representative of FHS, before and in the Agreement itself, that MSA would ship “medical masks” to VA Hospitals throughout the country. In addition, before the Agreement was executed by FHS, Mr. Peters represented by photograph that the medical masks were being shipped in 50-unit boxes. Mr. Peters is an authorized representative of MSA. b. After Mr. Barrett signed the Agreement, he learned that MSA would not ship any goods on May 26 as agreed. Mr. Peters and Adam Michael Risolia then stated the Goods would be shipped on May 27, 2020. Upon information and belief, Mr. Risolia is an authorized representative of MSA. c. After Mr. Barrett learned that MSA would not ship any goods on May 27, 2020, Mr. Risolia stated that all shipments would be made by 12:000 noon on May 28, 2020, for arrival at the VA hospitals by 5:00 p.m. on June 1, 2020. Mr. Barrett later learned that MSA would not ship by 12:00 noon or make arrangements that ensured delivery by 5:00 p.m. on June 1, 2020. d. After the VA questioned the Goods, Mr. Peters represented that the Goods would pass independent testing to determine if they were actually medical masks as represented by MSA. The above statements were false when made. The goods shipped were not medical masks; instead, they were non-medical masks. Mr. Peters knew or should have known this when he sold them and represented to Mr. Barrett that the Goods would pass independent testing. Likewise, he knew or should have known the Goods were not being shipped in fifty-unit boxes. Each time that Mr. Peters and Mr. Risolia made a representation to Mr. Barrett about when the Goods would be shipped or would arrive, they knew that their representations were false. 7 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 The false representations were before the Agreement was executed, in the Agreement and after the Agreement, in writing, including texts or electronic mail and the Agreement itself, to induce FHS to execute the Agreement or to induce FHS to not cancel the Agreement and make arrangements with another supplier. In fact, FHS actually relied upon the misrepresentations to its detriment. As a result, MSA cannot enforce the Agreement against FHS. 3. Waiver: As its third affirmative defense, FHS alleges that after the VA refused to pay for the late/haphazard shipment of the masks, MSA, through its authorized representative, intentionally and expressly waived or relinquished any alleged claim or right under the Agreement, writing to FHS that “I absolutely understand. I am mortified at what I say today and I 100% agree that is not an acceptable way to do business. . . . the fault of how those goods arrived is on my companies [sic] shoulders alone . . ..” 4. Estoppel and Failure to Mitigate: As its fourth affirmative defense, FHS alleges that MSA is estopped to assert any claims for damages under the Agreement. After the VA refused under any circumstance to pay for the Goods, FHS, in reliance upon statements of MSA, believed that MSA would resell the Goods and not sue under the Agreement if FHS cooperated in the return of the Goods to MSA and the efforts of MSA to resell the Goods. Only after MSA knew that FHS had made arrangements for return of the Goods did MSA begin to threaten to sue FHS. MSA should be estopped from asserting any claims for damages against FHS. Further, to the extent that MSA has failed to mitigate its damages, any alleged damages of MSA must be reduced accordingly. 5. Set-off, Recoupment, Resales, and Returns to Manufacturer: As its fifth affirmative defense, FHS alleges that any award in favor of MSA must be reduced by all amounts 8 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 owed by MSA to FHS, by way of either set-off or recoupment, including, without limitation, any damages proven by FHS in its Counterclaim, any resales of the Goods made by MSA after the Goods were returned by FHS, and any subsequent returns of the Goods by MSA to the manufacturer(s). REQUEST FOR ATTORNEYS’ FEES Pursuant to Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) and its progeny, FHS hereby gives notice to MSA that FHS, according to the Agreement and any statute, rule, or case law that may become applicable to these proceedings, will seek to recover all fees and costs incurred by FHS to the undersigned firm of attorneys in defense of the claims asserted in the Complaint. COUNTERCLAIM Pursuant to Rule 1.170 of the Florida Rules of Civil Procedure, FHS hereby asserts claims that FHS has against MSA. The Parties, Jurisdiction & Venue 1. FHS is the counter-plaintiff, and MSA is the counter-defendant. As MSA filed this action, the Court has personal jurisdiction over the counter-defendant, and no initial process need issue. 2. As this Court has subject matter jurisdiction and venue over the claims asserted in the Complaint, this Court has jurisdiction and venue over the claims asserted in this Counterclaim. General Allegations 3. Since in or about March 2020, MSA advertised itself to be a supplier of medical masks and other medical supplies. 9 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 4. In May 2020, FHS was looking to obtain medical masks to meet purchase requirements of the VA, including those in a written contract (the “VA Contract”) for over one million disposable medical masks. 5. Roxroy Barrett, an authorized representative of FHS, inquired of Tyler Peters, an authorized representative of MSA, if MSA held this number of medical masks in inventory. 6. Mr. Peters told Mr. Barrett that MSA had this quantity of medical masks, and requested information about the medical supplies sought by the VA. 7. Mr. Barrett provided Mr. Peters with a copy of the VA Contract, including two modifications thereof. 8. Thereafter, MSA, through Mr. Peters, represented in writing that MSA would sell 1,016,050 “three-ply medical masks” to FHS for a total price of $445,341, inclusive of shipping. 9. On May 26, 2020, Mr. Peters presented Mr. Barrett with a written sales agreement between MSA and FHS (the “Agreement”), which document was drafted by attorneys for MSA and executed by Mr. Peters on behalf of MSA. A copy of the Agreement is attached to the Complaint as Exhibit A and, therefore, is not unnecessarily attached to this pleading. In addition, Mr. Peter represented to Mr. Barrett, in a photograph provided before the Agreement was executed by FHS, that the medical masks being shipped were contained in fifty-unit boxes. 10. Consistent with these representations made by Mr. Peters to Mr. Barrett, the Agreement also expressly represented that MSA would sell and FHS would purchase 1,016,050 “3-ply Disposable Medical Masks” (the “Goods”) for the price of $445,341.00,” which Goods would be shipped by MSA to the VA Hospitals no later than “May 26, 2020.” 10 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 11. Based upon the representations made before and in the Agreement, Mr. Barrett signed the Agreement on behalf of MSA and returned the Agreement to MSA on May 26. 12. On May 27, 2020, Mr. Peters then revealed to Mr. Barrett that the Goods had not been shipped by MSA to FHS on May 26, 2020 as represented. 13. Mr. Peters and Adam Michael Risolia, another authorized representative of MSA, then represented in writing to Mr. Barrett that the medical masks would be shipped on May 27, 2020. 14. However, at the day’s end, Mr. Risolia, then revealed that the Goods had not yet been shipped. 15. Mr. Risolia then represented that all of the Goods would be shipped by 12:00 noon, the following day, for arrival at the VA Hospitals before 5:00 p.m. on June 1, 2020. 16. Though MSA was not entitled to payment under the Agreement by FHS until VA wired funds to FHS, Mr. Risolia, on May 28, 2020, demanded that FHS front $15,000 in freight charges from Miami to the VA Hospitals. 17. As there was no longer sufficient time to obtain the Goods from another supplier, Mr. Barrett acceded to the FHS’ demand and advanced the freight charges by personal credit card transaction, even though FHS was under no obligation to do so.2 2 The old saying that, “no good deed goes unpunished,” comes to mind upon review of texts sent months later to Mr. Barrett about this credit card transaction. Adam Michael Risolia (AMR): “We filed our lawsuit today and served the registered agent of your business. Just a heads up. Weather is a bit stormy in Florida where we filed also something to keep in mind for you if you make it down here for the court case. I’ll have a judgment on you in no time and that will preclude you from ever getting another gov’t contract. I’m well aware of how this works. Also as far as me ‘crying’ suck my d—k. You had to put the shipping charges on your wife’s credit card and it got declined. I’ll f---ing decimate you in court. They don’t give you public defenders for ripping people off.” Roxroy Barrett (RB): “Free advice Lawyer’s get paid to take your money. You seem to have 11 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 18. In fact, the Goods eventually shipped by MSA were not medical masks; (b) the Goods were not shipped by MSA on May 26, May 27 or even before 12:00 noon on May 28; (c) due to the late shipment, the Goods were not delivered on June 1, 2020; and (d) the masks were not shipped in boxes of fifty (50) units. 19. Because of the late and haphazard shipment of the masks, the VA refused to accept the Goods when they eventually arrived at the VA’s hospitals. 20. On or about June 8, 2020, due to the manner of shipment, the VA demanded the Goods be independently tested by a third party or removed from the VA Hospitals. 21. FHS notified MSA of the VA’s refusal to accept the Goods due to manner in which they were shipped and the VA’s demand for removal of the Goods from its facilities or testing. 22. MSA, through Mr. Peters, admitted to FHS that MSA was to blame for the manner in which the Goods were received at the VA Hospitals, but represented that the Goods would pass independent testing. 23. At MSA’s request, FHS arranged for independent testing of the Goods to salvage the VA Contract so that the VA would pay FSA, which, in turn, would then pay MSA. 24. Contrary to the representation of Mr. Peters, independent testing verified that the Goods shipped by MSA to FHS could not be sold much less used as “medical masks.” a lot to give.” AMR: “You don’t lol. Maybe your wife can spot you again you broke old loser. . . At least I pay not only my bills but I take care of my family. I hope your wife doesn’t get tired of paying for your broke a-s. Maybe once I sue the f—k out of you she will.” RB: “Is that what your partner [Tyler Phillips] told you that my wife’s Credit card got declined. I have the receipts. . . .” AMR: “Bc you’re broke. You paid 15k out of 26k lol. We had to cover the rest. Nice. If I were 70 years old and didn’t have 26k I would just shoot myself. . . . It got declined first. We ran it twice. Then a whopping 15k went through. Congrats you’re still broke.” 12 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 25. As a result of these negative test results, the VA insisted that the Goods be immediately removed from the VA Hospitals. 26. FHS so advised MSA, which then requested that FHS return the masks to Miami, Florida, stating that MSA would look to sell the masks to someone else if FHS would return the Goods and agree to help MSA resell the goods. 27. Though without any obligation to do so, in an effort to resolve any dispute with MSA and comply with the demand of the VA that the Goods be immediately removed, FHS paid the freight expense to return the goods to Miami. 28. Within days of FHS’ payment of the freight expense to return the Goods, MSA reneged on what MSA had said to Mr. Barrett to induce MSA to return the Goods. 29. Once the Goods safely arrived in Miami, MSA began sending threatening and later demeaning messages to MSA and its managing member, Mr. Barrett, himself a veteran of the United States Navy. 30. MSA breached all of its representations, warranties, and obligations relating to the Goods, the shipment of the Goods, and the packaging of the Goods. 31. All conditions precedent to the assertion of claims by FHS against MSA and the imposition of liability upon MSA in favor of FHS have been performed, have occurred, or have been waived by MSA. Count One Breach of the Agreement 32. The general allegations are incorporated here. 33. MSA has committed a total breach of the Agreement or breaches that go to the whole contract or to terms of the bargain so essential that FHS had the right to cancel the entire 13 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 contract and recover all of its damages under Section 672.711 of the Florida Statutes, including, without limitation, all incidental damages in accordance with Section 672.715 of the Florida Statutes. 34. The Goods were not shipped timely under the Agreement or in a reasonable manner. The fifty-unit boxes were not used; instead, the Goods were shipped in a manner that was utterly disorganized and haphazard. 35. The VA demanded third-party testing to be assured the late-arriving Goods in complete disarray were legitimate. 36. After third-party testing, it was determined that the Goods were not medical masks as warranted in the Agreement. 37. MSA is entitled to recover the freight expense paid on May 28, 2020 and other monetary damages, including, without limitation, incidental damages for testing the Goods and then the freight expense to return the Goods to Miami. 38. In accordance with the Agreement, FHS is also entitled to recover all of its attorneys’ fees in connection with the prosecution of this counterclaim. Count Two Misrepresentation 39. The general allegations are incorporated here. 40. As alleged above, the following representations were made by authorized representatives of MSA as follows: a. Mr. Peters represented that the Goods were medical masks. b. Mr. Peters represented that the Goods would be shipped in fifty-unit boxes. 14 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 c. Mr. Peters and Mr. Risolia represented that the Goods would be shipped on May 26, May 27, and before 5:00 p.m. on May 28. d. Mr. Risolia represented that the Goods would arrive at the VA hospitals before 5:00 p.m. on June 1. e. Mr. Peters represented that the Goods would pass independent testing to determine if they were medical masks. 41. Each of the above representations were false when made: a. The Goods were not medical masks, nor were the masks even remotely capable of passing independent testing. b. MSA had no intention of shipping the Goods in 50-unit boxes when this misrepresentation was made. Instead, to save packing and/or freight costs, MSA knew it would ship the Goods in plastic bags. c. MSA had no intention of shipping all of the Goods on May 26, May 27, or before 12:00 noon on May 28, and these representations about when shipping would occur and the shipments would be received by the VA hospitals were made to conceal MSA’s inability to perform in accordance with the deadline in the Agreement or any extension of the deadline that FHS generously permitted. 42. MSA at all times material, knew or should have known that MSA was not selling medical masks, that the masks could not pass independent testing, and that the masks were not being shipped in fifty-unit boxes. Further, MSA at all times knew that the representations about when the Goods would be shipped and the representation about when the goods would be received were false when made. 15 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 43. MSA intended that Mr. Barrett would rely upon the misrepresentations. a. MSA intended that Mr. Barrett would rely upon the misrepresentations before the Agreement to execute the Agreement. b. MSA intended that Mr. Barrett would rely upon the misrepresentations after the Agreement to not cancel the Agreement when FHS had a right to do so based upon the failure of MSA to ship the Goods on time or package them in fifty-unit boxes rather than plastic bags. c. MSA intended that Mr. Barrett would rely upon misrepresentations made after the VA rejected the Goods to induce FHS to incur expenses for independent testing and return shipping, which expenses should have been paid by MSA. 44. FHS actually relied upon the false representations in that Mr. Barrett would not have signed the Agreement on behalf of FHS nor authorized shipment under the Agreement on behalf of FHS nor incurred freight, testing, and other expenses on behalf of FHS if Mr. Barrett would have known of the falsity of the representations made by MSA. 45. As a result of FHS’s actual reliance upon the misrepresentations of MSA, FHS is entitled to rescind or cancel the Agreement and/or recover actual damages from MSA. Prayer for Relief WHEREFORE, the defendant/counter-plaintiff requests that the Court enter a judgment that awards the plaintiff/counter-defendant nothing on the Complaint and awards the defendant/counter-plaintiff on the Amended Counterclaim (a) the remedy of rescission, (b) damages, (b) pre-judgment interest on all damages, (c) attorneys’ fees and court costs incurred in the defense of the Complaint and prosecution of the Amended Counterclaim, (d) post-judgment 16 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida CASE NO.: 2020-022556-CA-01 interest, and/or (e) such other and further relief to which the defendant/counter-plaintiff shows itself to be entitled, including, without limitation, nominal damages, if appropriate. DEMAND FOR JURY TRIAL Pursuant to Rule 1.430, defendant/counter-plaintiff demands a trial by jury on all issues triable by right to a jury. Respectfully submitted, Attorneys for Defendant/Counter-Plaintiff, Firm Healthcare System LLC BENNETT & AIELLO Temporary Address for Mail 3471 Main Highway, Suite 206 Coconut Grove, Florida 33133-5929 Phone: (305) 358-9011 Facsimile: (305) 358-9012 By: /s Paul Aiello_____________ Paul Aiello, FBN 0909033 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, pursuant to Rule 2.516 of Fla. R. Jud. Admin, on the 29th day of November, 2020, this document was filed with the Florida Courts e-filing Portal, which system served the document upon all attorneys and parties who have requested service pursuant to Rule 2.516. By: /s Paul Aiello E-mail addresses designated for service: paiello@bennettaiello.com lvargas@bennettaiello.com 17 BENNETT AIELLO • (305) 358-9011 • Coconut Grove, Florida