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Filing# 169570910 E-Filed 03/24/2023 11:49:49 AM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY,
BEST GLOBAL PARTNERS, LLC, FLORIDA
a Florida limited liability
company,
CIVIL DIVISION
plaintiff, CASE NO- CACE 2021-10072
VS.
DANIEL MILA DE LA ROCA,
an individual,JORGE ROMERO,
an individual,and MARISELA
TORRES MARQUEZ, an individual,
Defendants.
'
DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT
Defendants Daniel Mila de la Roca ("Mila"),Jorge Romero ("Romero"), and Marisela
the "Defendants"), by and through the
Torres Marquez ("Torres Marquez") (collectively
undersignedcounsel, and pursuant to the Florida Rules of Civil Procedure, hereby
applicable file
this Answer Best Global Partners,
to Plaintiff, LLC's, Complaint, and in support thereof state as
follows:
INTRODUCTION
1. Admit that Plaintiff claims to bring this action for breach of fiduciaryduties,tortious
interference,civil theft and civil conspiracy but denied Plaintiff's claims have any
merit.
PARTIES, JURISDICTION, AND VENUE
2. Admit.
3. Admit that Mila is over the age 18 and resides in Florida. All other allegations
are
denied.
1
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/24/2023 11:49:49 AM.****
4. Admit that Romero is over the age 18 and resides in Florida. All other allegations
are
denied.
5. Admit that Torres Marquez is over the age 18 and resides in Florida. All other
are denied.
allegations
6. Admitted for jurisdictional
purposes only.
7. Admitted for jurisdictional
purposes only.
GENERAL ALLEGATIONS
BACKGROUND FACTS
8. Admit.
9. Admit.
10. Admit.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Admit that BG Insurance is a licensed entityunder the laws of Barbados. All other
are denied.
allegations
20. Denied.
21. Denied.
22. Denied.
2
MILA/MGR SIPHONS FUNDS FROM BGP
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
29. Denied.
MISAPROPRIATION OF BGP'S ASSETS AND TORTIOUS INTERFERENCE
WITH BGP'S ADVANTEGEOUS BUSINESS RELATIONSHIPS
30. Denied.
31. Denied
32. Denied
33. Denied
34. Denied.
35. Denied
36. Denied.
37. Denied.
38. Denied.
39. Denied.
40. Denied.
41. Denied.
42. Denied.
43. Denied.
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44. Denied.
45. Denied.
46. Denied.
47. Denied
48. Denied.
49. Admit.
50. Denied.
51. Denied.
52. Denied.
53. Denied.
54. Denied.
55. Denied.
56. Denied.
57. Denied.
58. Denied.
59. Denied.
60. Denied.
61. Denied.
62. Denied.
63. Denied.
64. Denied.
65. Denied.
66. Denied.
4
67. Denied.
MILA/MGR AND ROMERO/MGR'S WRONGFUL, DISSOCIATION FROM BGP AND
DEFENDANTS' ATTEMPT TO FORCE THE DISSOLUTION OF BGP
68. Admit.
69. Denied.
70. Admit.
71. Admit.
72. Denied.
73. Denied.
74. Denied.
75. Denied.
76. Denied.
77. Denied.
78. Denied.
79. Denied.
BREACHES OF FIDUCIARY DUTIES AND OTHER MISCONDUCT
80. Denied.
81. Denied.
82. Admit that members owe fiduciaryduties. The remainder ofthis paragraph are
denied as stated.
83. Denied.
84. Denied.
85. Denied.
5
86. Denied.
87. Denied.
88. Denied.
89. Denied.
90. Denied.
91. Denied.
CAUSES OF ACTION
COUNT 1 - BREACH OF STATUTORY DUTIES OF LOYALTY AND CARE
(againstMila/MGR and Romero/MGR)
92. Defendants incorporateeach and every response set forth in paragraphs 1 through 91
as if fullyset forth herein.
93. Admit that Plaintiff claims to assert a claim for breach of fiduciaryduty. Denied
Plaintiff is entitled to the relief sought.
94. Denied.
95. Denied.
96. Denied.
97. Denied.
COUNT II - COMMON LAW BREACH OF FIDUCIARY DUTY
(againstall Defendants)
98. Defendants incorporateeach and every response set forth in paragraphs 1 through 91
as if fullyset forth herein.
99. Admit that Plaintiff claims to assert a claim for breach o f common law fiduciary.
Denied Plaintiff is entitled to the relief sought.
100. Denied.
101. Denied.
6
102. Denied.
COUNT III - TORTIOUS INTERFERENCE WITH A
BUSINESS RELATIONSHIP
(againstMila/MGR and Romero/MGR)
103. Defendants incorporateeach and every response set forth in paragraphs 1 through
91 as if fullyset forth herein.
104. Denied.
105. Denied.
106. Denied.
107. Denied.
108. Denied.
COUNT IV - CIVIL THEFT
(againstMila/MGR)
109. each and every response
Defendants incorporate set forth in paragraphs1 through
91 as if fullyset forth herein.
110. Denied.
111. Denied.
112. Denied.
113. Denied.
114. Denied.
115. Denied.
116. Denied.
117. Denied.
118. Denied.
119. Denied.
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COUNT V - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY
(againstall Defendants)
120. Defendants incorporateeach and every response set forth in paragraphs 1 through
91 as if fullyset forth herein.
121. Admit that Plaintiff claims to assert an action for aidingand abettingon or more
breaches of fiduciaryduties. Denied Plaintiff is entitled to this relief.
122. Denied.
123. Denied.
124. Denied.
125. Denied.
126. Denied.
COUNT VI - CIVIL CONSPIRACY
(againstall Defendants)
127. Defendants incorporateeach and every response set forth in paragraphs 1 through
91 as if fullyset forth herein.
128. Denied.
129. Denied.
130. Denied.
131. Denied.
COUNT VII - UNJUST ENRICHMENT
(againstMila/MGR and Romero/MGR)
132. each and every response
Defendants incorporate set forth in paragraphs1 through
91 as if fullyset forth herein.
133. Denied.
134. Denied.
8
135. Denied.
RESERVATION OF CLAIM FOR PUNITIVE DAMAGES
136. Plaintiff's reservation of a "right"to plead a claim or claims for punitivedamages
should be stricken. Florida Statute 768.72 sets forth the appropriateprocedure to
seek punitivedamages and this attempt to reserve this rightis not appropriate.
PRAYER FOR RELIEF
WHEREFORE, Defendants request this Court deny all the relief sought in Plaintiff's
Complaint including but not limited to denying all the relief sought in paragraph i-vi in the
Complaint.
AFFIRMATIVE DEFENSES
First Affirmative Defense: Unclean Hands
Plaintiff's claims are barred because Plaintiff comes to the Court in equity with unclean
Plaintiff has committed a Fraud on the
hands by committing a fraud on the Court. Specifically,
Court by intentionallywithholding documents that are relevant to the Complaint. In the
failed to include the 2019 Operating Agreement,
Complaint, Plaintiff's Counsel intentionally
which establishes Mila and Marcano equally share ownersh* of the Company. This 2019
Agreement was agreed upon after the dissolution ofthe 2017 OperatingAgreement that is attached
to the Complaint as purportedlythe current operatingagreement of the Company. Plaintiff's
Counsel also excluded the document showing dissolution of the 2017 Agreement on which the
Complaint is based upon. Plaintiff's Counsel has knowledge of the dissolution of the 2017
Agreement and the existence ofthe 2019 Agreement. Plaintiff's Counsel's failure to disclose this
information to the Court, is tantamount to fraud on the Court because with the attachment of the
2017 Agreement to the Complaint, exclusion ofthe 2019 Agreement, and the erroneous allegation
9
that Mila disassociated as member o f the Company, Plaintiff's Counsel is wrongfully leadingthe
Court to believe Marcano has majoritycontrol of the Company or is the sole owner. Fraud on the
court occurs where "it can be demonstrated, clearlyand convincingly,that a party has sentiently
set in motion some unconscionable scheme calculated to interfere with the judicialsystem'sability
to adjudicatea matter by improperlyinfluencing
impartially the trier of fact or unfairlyhampering
the presentationof the opposing party'sclaim or defense." Cox v. Burke, 706 So. 2d 43,46 (Fla.
5th DCA the
1998)(finding trial court did not abuse its discretion when it dismissed a complaint
as a sanction for committing fraud on the court).A trial court possesses the discretion to dismiss
a complaint when there is clear and convincing evidence that the has committed fraud
plaintiff
upon the court. Bass v. Pembroke Pines, 991 So. 2d 1008 (4th DCA 2008). The integrity
of the
civil process depends on truthful disclosure facts; a system that depends on an
litigation
to uncover falsehoods
adversary'sability is doomed which is
to failure, why this kind of conduct
must be discouragedin the strongest possibleway. Bass, 991 So. 2d at 1012 (affirmingdismissal
of complaint for fraud on the court based on passenger's failure to disclose the identities of her
priormedical providers,or her priortreatment for migraine headaches). The trial court has the
in the exercise of
inherent authority, its sound judicialdiscretion,to dismiss an action when the
has perpetrateda fraud on the
plaintiff court. Herman v. Intracoastal Cardiology Center, 121 So.
3d 583, 588-89 (4th DCA 2013) (affirmingdismissal of the complaint because the appellant
"sentientlyset in motion a scheme to defraud that was calculated to interfere with the judicial
system's ability the matter impartially").
to adjudicate Here, it is evident that Plaintiff's Counsel
and Marcano intentionally
withheld documents from the Court to "interfere with the judicial
system's abilityimpartiallyto adjudicatea matter by improperly influencingthe trier of fact or
unfairlyhampering the presentationofthe opposing party'sclaim or defense." Cox, 706 So. 2d at
10
46. The documents omitted from the Complaint not only are necessary to properlyadjudicatethe
case on its merits, but also indispensablefor the Court to consider the proprietyo f Plaintiff' s
The intentional exclusion of the documents was solely intended to
Counsel's representation.
prejudiceDefendant and unfairlyinterfere with their ability
to defend againstthe claims asserted
from representing
by Marcano. Therefore, Plaintiff' s Counsel should be disqualified the Company
and the Complaint should be dismissed.
Second Affirmative Defense: Fraud
Plaintiff's claims are barred by his own fraud. Specifically,
Plaintiffhas committed a fraud
withholding documents
by intentionally that are relevant to the Complaint. In the Complaint,
Plaintiff's Counsel intentionallyfailed to include the 2019 Operating Agreement, which
establishes Mila and Marcano equally share ownership of the Company. This 2019 Agreement
was agreed upon after the dissolution of the 2017 Operating Agreement that is attached to the
Complaint as purportedlythe current operatingagreement of the Company. Plaintiff's Counsel
also excluded the document showing dissolution of the 2017 Agreement on which the Complaint
is based upon. Plaintiff's Counsel has knowledge of the dissolution of the 2017 Agreement and
the existence of the 2019 Agreement. Plaintiff's is fraudulentlyclaiming that Marcano has
majoritycontrol ofthe Company or is the sole owner. Here, it is evident that Plaintiffintentionally
withheld documents from the Court to "interfere with the judicialsystem's ability to
impartially
adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the
of the opposing party'sclaim or defense." Cox, 706 So. 2d
presentation at 46.
Third Affirmative Defense: Failure to Attach Documents
Plaintiff's claims fail because Plaintiff failed to attach required documents that are
necessary to the prosecutionof his claim. The documents omitted from the Complaint not only
11
are necessary to properlyadjudicatethe case on its merits,but also indispensablefor the Court to
The intentional exclusion of the
consider the proprietyof Plaintiff's Counsel's representation.
documents was solelyintended to prejudiceDefendant and unfairlyinterfere with their abilityto
defend againstthe claims asserted by Marcano.
Fourth Affirmative Defense: Plaintiff's Claims are Not Personal Claims
Plaintiff's claims fail because the causes o f actions asserted are not personalto the Plaintiff
but if they existed,which they do not, would only be appropriate on
to be brought derivatively
behalf of the Company. Plaintiff claims that Defendants breached their fiduciary
Specifically,
duty to the Company. Although, Plaintiff purports to be bringing this claim on behalf of the
Company this is a fiction as it is Marcano, who at best is a 50% member, who has singledhandedly
decided to take corporate action that is not authorized by the remaining members of the entity.
Fifth Affirmative Defense: Waiver
The Plaintiff waived his claims. "Waiver" is the voluntaryand intentional relinquishment
of a known right.Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005);
Bueno v. Workman, 20 So.3d 993,998 (Fla.4th DCA 2009). The Plaintiffwas fullyaware of and
agreed to all actions undertaken by the Defendants. As a result,Plaintiff has waived any claims
againstthe Defendants for actions which he knowingly agreed to and accepted. Further, the
Plaintiff waived any claim of fraud when he knew or should have discovered the allegedfraud.
Hurner v. Mut. Bankers Corp., 191 So. 831 (Fla.1939);Zurstrassen v. Stonier,786 So.2d 65 (Fla.
4thDCA 2001).
Sixth Affirmative Defense: In Pari Delicto
The Plaintiffhimself engaged in what he knows claims is a fraudulent scheme. As a result,
in the actions that he asserts were fraudulent and pursue the Defendants
he cannot both participate
12
for same claims. One who himself engages in a fraudulent scheme, that is,acts in pari delicto,
may forfeit his rightto any legalremedy againsta co-perpetrator. Kulla v. E.F. Hutton & Co.,
ird
Inc.,426 So.2d 1055 (Fla.3? DCA 1983).
Seventh Affirmative Defense: Full Disclosure
The Plaintiff' s causes of action fail because the Defendants fullydisclosed all actions that
are the subjectof the Complaint. As a result of Defendants full disclosure,they are not liable to
the Plaintiff for acts as members of the entity.Avila South Condominium Assoc. Inc. v. Kappa
Com., 347 So.2d 599 (Fla.1977); First Union Nat. Bank v. Tumey, 824 So.2d 172 (Fla.ls1DCA
2001), rev. denied, 828 So.2d 385 (Fla.2002).
Eighth Affirmative Defense: Lack of Interference
The Plaintiff' s claim for interference fails because any decision by the third partiesalleged
to have been interfered with was unrelated to any conduct by the Defendants. As a result Plaintiff
cannot prevailin an action for tortious interference with contractual rightsbecause the third party,
not the Defendants, was the proximate cause of the dissociation. Farah v. Canada, 740 So.2d 560
(Fla.5
-th
DCA 1999).
Ninth Affirmative Defense: Own Business Interest
The Defendants are not liable to the Plaintiff because the Defendants were entitled to
conduct their business and legalaffairs in the manner determined to be in their own best interest
without regard to the effects on the Plaintiff. Paparone v. Bankers Life & Casualty Co., 496 So.2d
865 (Fla.2nd DCA 1986). Under Florida law, a party is privilegedto act, and his actions are non-
actionable,if the actions are taken to safeguardor promote the party'sown financial interest.
Horizons Rehabilitation, Inc. v. Health Care and Retirement Corp., 810 So.2d 958 (Fla-5thDCA
2002).
13
Reservation of Rights
Defendants reserve the rightto seek leave of Court to amend, modify or add additional
affirmative defenses as may be necessary as this case develops.
Respectfullysubmitted,
DORTA & ORTEGA, P.A.
/s/ Omar Ortega
Omar Ortega, Esq.
Florida Bar No. 0095117
Rosdaisy Rodriguez, Esq.
Florida Bar No. 0112710
3860 S.W. 8 Street,Suite PH
Coral Gables, Florida 33134
Telephone: (305) 461-5454
Facsimile:(305)461-5226
Email: oortega@dortaandortega.com
Email: rrodriguez@dortaandortega.com
Email: ybuergo@dortaandortega.com
Email: dkoch@dortaandortega.com
Counsel for Defendants.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy ofthe foregoingwas sent via electronic
correspondence on March-2,2023 to: Leon F. Hirzel, Esq., Hirzel Dreyfuss & Dempsey PLLC,
Attorney for Plaintiff, 2333 Brickell Avenue, Suite A-1, Miami, FL 33129,
hirzel@hddlawfirm.com, com.
/s/ Omar Ortega
Omar Ortega
15
Preview
Filing# 169570910 E-Filed 03/24/2023 11:49:49 AM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, BEST GLOBAL PARTNERS, LLC, FLORIDA a Florida limited liability company, CIVIL DIVISION plaintiff, CASE NO- CACE 2021-10072 VS. DANIEL MILA DE LA ROCA, an individual,JORGE ROMERO, an individual,and MARISELA TORRES MARQUEZ, an individual, Defendants. ' DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT Defendants Daniel Mila de la Roca ("Mila"),Jorge Romero ("Romero"), and Marisela the "Defendants"), by and through the Torres Marquez ("Torres Marquez") (collectively undersignedcounsel, and pursuant to the Florida Rules of Civil Procedure, hereby applicable file this Answer Best Global Partners, to Plaintiff, LLC's, Complaint, and in support thereof state as follows: INTRODUCTION 1. Admit that Plaintiff claims to bring this action for breach of fiduciaryduties,tortious interference,civil theft and civil conspiracy but denied Plaintiff's claims have any merit. PARTIES, JURISDICTION, AND VENUE 2. Admit. 3. Admit that Mila is over the age 18 and resides in Florida. All other allegations are denied. 1 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/24/2023 11:49:49 AM.**** 4. Admit that Romero is over the age 18 and resides in Florida. All other allegations are denied. 5. Admit that Torres Marquez is over the age 18 and resides in Florida. All other are denied. allegations 6. Admitted for jurisdictional purposes only. 7. Admitted for jurisdictional purposes only. GENERAL ALLEGATIONS BACKGROUND FACTS 8. Admit. 9. Admit. 10. Admit. 11. Denied. 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. 18. Denied. 19. Admit that BG Insurance is a licensed entityunder the laws of Barbados. All other are denied. allegations 20. Denied. 21. Denied. 22. Denied. 2 MILA/MGR SIPHONS FUNDS FROM BGP 23. Denied. 24. Denied. 25. Denied. 26. Denied. 27. Denied. 28. Denied. 29. Denied. MISAPROPRIATION OF BGP'S ASSETS AND TORTIOUS INTERFERENCE WITH BGP'S ADVANTEGEOUS BUSINESS RELATIONSHIPS 30. Denied. 31. Denied 32. Denied 33. Denied 34. Denied. 35. Denied 36. Denied. 37. Denied. 38. Denied. 39. Denied. 40. Denied. 41. Denied. 42. Denied. 43. Denied. 3 44. Denied. 45. Denied. 46. Denied. 47. Denied 48. Denied. 49. Admit. 50. Denied. 51. Denied. 52. Denied. 53. Denied. 54. Denied. 55. Denied. 56. Denied. 57. Denied. 58. Denied. 59. Denied. 60. Denied. 61. Denied. 62. Denied. 63. Denied. 64. Denied. 65. Denied. 66. Denied. 4 67. Denied. MILA/MGR AND ROMERO/MGR'S WRONGFUL, DISSOCIATION FROM BGP AND DEFENDANTS' ATTEMPT TO FORCE THE DISSOLUTION OF BGP 68. Admit. 69. Denied. 70. Admit. 71. Admit. 72. Denied. 73. Denied. 74. Denied. 75. Denied. 76. Denied. 77. Denied. 78. Denied. 79. Denied. BREACHES OF FIDUCIARY DUTIES AND OTHER MISCONDUCT 80. Denied. 81. Denied. 82. Admit that members owe fiduciaryduties. The remainder ofthis paragraph are denied as stated. 83. Denied. 84. Denied. 85. Denied. 5 86. Denied. 87. Denied. 88. Denied. 89. Denied. 90. Denied. 91. Denied. CAUSES OF ACTION COUNT 1 - BREACH OF STATUTORY DUTIES OF LOYALTY AND CARE (againstMila/MGR and Romero/MGR) 92. Defendants incorporateeach and every response set forth in paragraphs 1 through 91 as if fullyset forth herein. 93. Admit that Plaintiff claims to assert a claim for breach of fiduciaryduty. Denied Plaintiff is entitled to the relief sought. 94. Denied. 95. Denied. 96. Denied. 97. Denied. COUNT II - COMMON LAW BREACH OF FIDUCIARY DUTY (againstall Defendants) 98. Defendants incorporateeach and every response set forth in paragraphs 1 through 91 as if fullyset forth herein. 99. Admit that Plaintiff claims to assert a claim for breach o f common law fiduciary. Denied Plaintiff is entitled to the relief sought. 100. Denied. 101. Denied. 6 102. Denied. COUNT III - TORTIOUS INTERFERENCE WITH A BUSINESS RELATIONSHIP (againstMila/MGR and Romero/MGR) 103. Defendants incorporateeach and every response set forth in paragraphs 1 through 91 as if fullyset forth herein. 104. Denied. 105. Denied. 106. Denied. 107. Denied. 108. Denied. COUNT IV - CIVIL THEFT (againstMila/MGR) 109. each and every response Defendants incorporate set forth in paragraphs1 through 91 as if fullyset forth herein. 110. Denied. 111. Denied. 112. Denied. 113. Denied. 114. Denied. 115. Denied. 116. Denied. 117. Denied. 118. Denied. 119. Denied. 7 COUNT V - AIDING AND ABETTING BREACH OF FIDUCIARY DUTY (againstall Defendants) 120. Defendants incorporateeach and every response set forth in paragraphs 1 through 91 as if fullyset forth herein. 121. Admit that Plaintiff claims to assert an action for aidingand abettingon or more breaches of fiduciaryduties. Denied Plaintiff is entitled to this relief. 122. Denied. 123. Denied. 124. Denied. 125. Denied. 126. Denied. COUNT VI - CIVIL CONSPIRACY (againstall Defendants) 127. Defendants incorporateeach and every response set forth in paragraphs 1 through 91 as if fullyset forth herein. 128. Denied. 129. Denied. 130. Denied. 131. Denied. COUNT VII - UNJUST ENRICHMENT (againstMila/MGR and Romero/MGR) 132. each and every response Defendants incorporate set forth in paragraphs1 through 91 as if fullyset forth herein. 133. Denied. 134. Denied. 8 135. Denied. RESERVATION OF CLAIM FOR PUNITIVE DAMAGES 136. Plaintiff's reservation of a "right"to plead a claim or claims for punitivedamages should be stricken. Florida Statute 768.72 sets forth the appropriateprocedure to seek punitivedamages and this attempt to reserve this rightis not appropriate. PRAYER FOR RELIEF WHEREFORE, Defendants request this Court deny all the relief sought in Plaintiff's Complaint including but not limited to denying all the relief sought in paragraph i-vi in the Complaint. AFFIRMATIVE DEFENSES First Affirmative Defense: Unclean Hands Plaintiff's claims are barred because Plaintiff comes to the Court in equity with unclean Plaintiff has committed a Fraud on the hands by committing a fraud on the Court. Specifically, Court by intentionallywithholding documents that are relevant to the Complaint. In the failed to include the 2019 Operating Agreement, Complaint, Plaintiff's Counsel intentionally which establishes Mila and Marcano equally share ownersh* of the Company. This 2019 Agreement was agreed upon after the dissolution ofthe 2017 OperatingAgreement that is attached to the Complaint as purportedlythe current operatingagreement of the Company. Plaintiff's Counsel also excluded the document showing dissolution of the 2017 Agreement on which the Complaint is based upon. Plaintiff's Counsel has knowledge of the dissolution of the 2017 Agreement and the existence ofthe 2019 Agreement. Plaintiff's Counsel's failure to disclose this information to the Court, is tantamount to fraud on the Court because with the attachment of the 2017 Agreement to the Complaint, exclusion ofthe 2019 Agreement, and the erroneous allegation 9 that Mila disassociated as member o f the Company, Plaintiff's Counsel is wrongfully leadingthe Court to believe Marcano has majoritycontrol of the Company or is the sole owner. Fraud on the court occurs where "it can be demonstrated, clearlyand convincingly,that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicialsystem'sability to adjudicatea matter by improperlyinfluencing impartially the trier of fact or unfairlyhampering the presentationof the opposing party'sclaim or defense." Cox v. Burke, 706 So. 2d 43,46 (Fla. 5th DCA the 1998)(finding trial court did not abuse its discretion when it dismissed a complaint as a sanction for committing fraud on the court).A trial court possesses the discretion to dismiss a complaint when there is clear and convincing evidence that the has committed fraud plaintiff upon the court. Bass v. Pembroke Pines, 991 So. 2d 1008 (4th DCA 2008). The integrity of the civil process depends on truthful disclosure facts; a system that depends on an litigation to uncover falsehoods adversary'sability is doomed which is to failure, why this kind of conduct must be discouragedin the strongest possibleway. Bass, 991 So. 2d at 1012 (affirmingdismissal of complaint for fraud on the court based on passenger's failure to disclose the identities of her priormedical providers,or her priortreatment for migraine headaches). The trial court has the in the exercise of inherent authority, its sound judicialdiscretion,to dismiss an action when the has perpetrateda fraud on the plaintiff court. Herman v. Intracoastal Cardiology Center, 121 So. 3d 583, 588-89 (4th DCA 2013) (affirmingdismissal of the complaint because the appellant "sentientlyset in motion a scheme to defraud that was calculated to interfere with the judicial system's ability the matter impartially"). to adjudicate Here, it is evident that Plaintiff's Counsel and Marcano intentionally withheld documents from the Court to "interfere with the judicial system's abilityimpartiallyto adjudicatea matter by improperly influencingthe trier of fact or unfairlyhampering the presentationofthe opposing party'sclaim or defense." Cox, 706 So. 2d at 10 46. The documents omitted from the Complaint not only are necessary to properlyadjudicatethe case on its merits, but also indispensablefor the Court to consider the proprietyo f Plaintiff' s The intentional exclusion of the documents was solely intended to Counsel's representation. prejudiceDefendant and unfairlyinterfere with their ability to defend againstthe claims asserted from representing by Marcano. Therefore, Plaintiff' s Counsel should be disqualified the Company and the Complaint should be dismissed. Second Affirmative Defense: Fraud Plaintiff's claims are barred by his own fraud. Specifically, Plaintiffhas committed a fraud withholding documents by intentionally that are relevant to the Complaint. In the Complaint, Plaintiff's Counsel intentionallyfailed to include the 2019 Operating Agreement, which establishes Mila and Marcano equally share ownership of the Company. This 2019 Agreement was agreed upon after the dissolution of the 2017 Operating Agreement that is attached to the Complaint as purportedlythe current operatingagreement of the Company. Plaintiff's Counsel also excluded the document showing dissolution of the 2017 Agreement on which the Complaint is based upon. Plaintiff's Counsel has knowledge of the dissolution of the 2017 Agreement and the existence of the 2019 Agreement. Plaintiff's is fraudulentlyclaiming that Marcano has majoritycontrol ofthe Company or is the sole owner. Here, it is evident that Plaintiffintentionally withheld documents from the Court to "interfere with the judicialsystem's ability to impartially adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the of the opposing party'sclaim or defense." Cox, 706 So. 2d presentation at 46. Third Affirmative Defense: Failure to Attach Documents Plaintiff's claims fail because Plaintiff failed to attach required documents that are necessary to the prosecutionof his claim. The documents omitted from the Complaint not only 11 are necessary to properlyadjudicatethe case on its merits,but also indispensablefor the Court to The intentional exclusion of the consider the proprietyof Plaintiff's Counsel's representation. documents was solelyintended to prejudiceDefendant and unfairlyinterfere with their abilityto defend againstthe claims asserted by Marcano. Fourth Affirmative Defense: Plaintiff's Claims are Not Personal Claims Plaintiff's claims fail because the causes o f actions asserted are not personalto the Plaintiff but if they existed,which they do not, would only be appropriate on to be brought derivatively behalf of the Company. Plaintiff claims that Defendants breached their fiduciary Specifically, duty to the Company. Although, Plaintiff purports to be bringing this claim on behalf of the Company this is a fiction as it is Marcano, who at best is a 50% member, who has singledhandedly decided to take corporate action that is not authorized by the remaining members of the entity. Fifth Affirmative Defense: Waiver The Plaintiff waived his claims. "Waiver" is the voluntaryand intentional relinquishment of a known right.Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005); Bueno v. Workman, 20 So.3d 993,998 (Fla.4th DCA 2009). The Plaintiffwas fullyaware of and agreed to all actions undertaken by the Defendants. As a result,Plaintiff has waived any claims againstthe Defendants for actions which he knowingly agreed to and accepted. Further, the Plaintiff waived any claim of fraud when he knew or should have discovered the allegedfraud. Hurner v. Mut. Bankers Corp., 191 So. 831 (Fla.1939);Zurstrassen v. Stonier,786 So.2d 65 (Fla. 4thDCA 2001). Sixth Affirmative Defense: In Pari Delicto The Plaintiffhimself engaged in what he knows claims is a fraudulent scheme. As a result, in the actions that he asserts were fraudulent and pursue the Defendants he cannot both participate 12 for same claims. One who himself engages in a fraudulent scheme, that is,acts in pari delicto, may forfeit his rightto any legalremedy againsta co-perpetrator. Kulla v. E.F. Hutton & Co., ird Inc.,426 So.2d 1055 (Fla.3? DCA 1983). Seventh Affirmative Defense: Full Disclosure The Plaintiff' s causes of action fail because the Defendants fullydisclosed all actions that are the subjectof the Complaint. As a result of Defendants full disclosure,they are not liable to the Plaintiff for acts as members of the entity.Avila South Condominium Assoc. Inc. v. Kappa Com., 347 So.2d 599 (Fla.1977); First Union Nat. Bank v. Tumey, 824 So.2d 172 (Fla.ls1DCA 2001), rev. denied, 828 So.2d 385 (Fla.2002). Eighth Affirmative Defense: Lack of Interference The Plaintiff' s claim for interference fails because any decision by the third partiesalleged to have been interfered with was unrelated to any conduct by the Defendants. As a result Plaintiff cannot prevailin an action for tortious interference with contractual rightsbecause the third party, not the Defendants, was the proximate cause of the dissociation. Farah v. Canada, 740 So.2d 560 (Fla.5 -th DCA 1999). Ninth Affirmative Defense: Own Business Interest The Defendants are not liable to the Plaintiff because the Defendants were entitled to conduct their business and legalaffairs in the manner determined to be in their own best interest without regard to the effects on the Plaintiff. Paparone v. Bankers Life & Casualty Co., 496 So.2d 865 (Fla.2nd DCA 1986). Under Florida law, a party is privilegedto act, and his actions are non- actionable,if the actions are taken to safeguardor promote the party'sown financial interest. Horizons Rehabilitation, Inc. v. Health Care and Retirement Corp., 810 So.2d 958 (Fla-5thDCA 2002). 13 Reservation of Rights Defendants reserve the rightto seek leave of Court to amend, modify or add additional affirmative defenses as may be necessary as this case develops. Respectfullysubmitted, DORTA & ORTEGA, P.A. /s/ Omar Ortega Omar Ortega, Esq. Florida Bar No. 0095117 Rosdaisy Rodriguez, Esq. Florida Bar No. 0112710 3860 S.W. 8 Street,Suite PH Coral Gables, Florida 33134 Telephone: (305) 461-5454 Facsimile:(305)461-5226 Email: oortega@dortaandortega.com Email: rrodriguez@dortaandortega.com Email: ybuergo@dortaandortega.com Email: dkoch@dortaandortega.com Counsel for Defendants. 14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe foregoingwas sent via electronic correspondence on March-2,2023 to: Leon F. Hirzel, Esq., Hirzel Dreyfuss & Dempsey PLLC, Attorney for Plaintiff, 2333 Brickell Avenue, Suite A-1, Miami, FL 33129, hirzel@hddlawfirm.com, com. /s/ Omar Ortega Omar Ortega 15