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IN THE CIRCUIT COURT OF THE 15" JUDICIAL
CIRCUIT IN AND FOR PALM BEACH COUNTY,
FLORIDA.
CASE NO. 2008-CA 002138 XXXX MB AO
TERESA MARIA CORTINAS, M.D., P.A.,
Plaintiff,
v.
ADVANCED IMAGING ASSOCIATES, LLC,
ROBERT D. BURKE, M.D., P.L., ROBERT D.
BURKE, and DIAGNOSTIC ANCILLARY
SERVICES, LLC,
Defendants/Third Party Plaintiffs,
v.
WALTER E. WOJCICKI, M.D., Ph.D., P.A.,
WALTER E. WOJCICKI, TERESA MARIA
CORTINAS, M.D., P.A. and TERESA MARIA
CORTINAS,
Third Party Defendants.
/
FILED
omnes
cunt TION R. BOCK
cine oO cling MPT; Meee LER
AMENDED THIRD PARTY COMPLAINT
Defendant, ADVANCED IMAGING ASSOCIATES, LLC, files this Amended
Third Party Complaint against Third Party Defendants, WALTER E. WOJCICKI, M.D., Ph.D., P.A.,
WALTER E . WOJCICKI, TERESA MARIA CORTINAS, M.D., P.A. and TERESA MARIA
CORTINAS and states as follows:
INTRODUCTION
1. Plaintiff, Teresa Maria Cortinas, M.D., P.A. and Third Party Defendant, Walter E.
Wojcicki, M.D., Ph.D., P.A. filed a Second Amended Complaint and Third Party Defendant’sRE: Defendant/Third Party Plaintiff's Amended Third Party Complaint
Case No. 2008-CA 002138 XXXX MB AO
Page 2
Counterclaim Answer and Affirmative Defenses attached hereto as Exhibit “1.”
2. Defendant, Robert D. Burke, Defendants/Third Party Plaintiffs, Advanced Imaging
Associates, LLC and Robert D. Burke, M.D., P.L., filed their Answer to Plaintiff's Second
Amended Complaint, Third Party Defendant’s Counterclaim, and Counterclaim attached hereto and
incorporated herein as Exhibit ”2.”
3. This is a business litigation action between three of the four members and principles
of Advanced Imaging Associates, LLC, Teresa Maria Cortinas, M.D., P.A. (TCPA), Teresa
Maria Cortinas (Cortinas), Walter E. Wojcicki, M.D., Ph.D., P.A. (WWPA), Walter E. Wojcicki
(Wojcicki), Robert D. Burke, M.D., P.L. (RBPL), Robert D. Burke (Burke), and Advanced Imaging
Associates, LLC (AIA) to recover various damage amounts claimed to be due to both AIA and the
individual members. The fourth member of AIA, Bradley M. Cohen, M.D., P.A. (BCPA) is not a
party to the present action.
PARTIES
4. TCPA is a Florida professional corporation that was an equity member of AIA
through December 31, 2007. TCPA’s sole principle and shareholder is Cortinas.
5. WWPA is a Florida professional corporation that was an equity member of
AIA through January 18, 2008. WWPA’s sole principle and shareholder is Wojcicki.
6. RBPL is a Florida professional limited liability company that is an equity
member of AIA. RBPL’s sole principle and shareholder is Burke.
7. AIA is a Florida limited liability company that operates as a radiology practice
group.RE: Defendany/Third Party Plaintiff's Amended Third Party Complaint
Case No. 2008-CA 002138 XXXX MB AO
Page 3
8. The Restated Operating Agreement (ROA) was the written operating agreement
between the four members of AIA attached hereto as part of Exhibit “1.”
JURISDICTION AND VENUE
9. This matter has an amount in controversy that exceeds Fifteen Thousand Dollars
($15,000.00) exclusive of attorneys fees, costs, and interest. Jurisdiction and venue are proper in
Palm Beach County because the acts giving rise to all causes of action arose in Palm Beach County.
GENERAL ALLEGATIONS
10. AIA adopts and incorporates the allegations found within Exhibit “2".
11. The ROA was executed by Burke as principle on behalf of member RBPL;
Cortinas as principle on behalf of member TCPA; Wojcicki as principle on behalf of member
WWPA,; and Bradley M. Cohen (Cohen) as principle on behalf of member Bradley M. Cohen,
M.D., P.A. (BCPA).
12. At the time of the execution of the ROA on January 1, 2007 and at all times
material hereto, each of the four members had only one principle.
13. The ROA held that the founding members shall mean Robert D. Burke, M.D.
and Teresa Cortinas, M.D.
14. The ROA specifically states that if the member is an entity, such member
Shall be that entity acting through its principle and all rights and obligations of any member
shall also be binding upon its principle.
15. All rights and obligations of member TCPA are binding upon Cortinas and all
rights and obligations of WWPA are binding on Wojcicki pursuant to the clear language of the ROA.RE: Defendant/Third Party Plaintiff's Amended Third Party Complaint
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16. On October 19, 2007 Wojcicki by and through WWPA provided written notice
that he was resigning and did resign from AIA effective as of January 18, 2008.
17. Cortinas by and through TCPA gave various notices of her resignation from
AIA and resigned at the beginning of January 2008.
18. While the members a part of AIA, were compensated by being paid a percentage of
net collected revenue from an entity known as Midtown Imaging, LLC (Midtown). The individual
members of AIA were compensated by splitting the balance of their monthly compensation payment
for Midtown after the payment of certain financial obligations of AIA including but not limited to
temporary physicians hired by AIA to provide radiologic reading services from a company known
as Staff Care. The use of the Staff Care temporary physicians, known as locum tenens, allowed
members and principles of AIA to enjoy time off and prevented a severe decrease in revenue to AIA.
19. Invoices from Staff Care to AIA clearly stated they were “due upon receipt” and are
billed twice a month. After Cortinas and Wojcicki resigned and had been paid all compensation due,
except for a portion of their last checks, it was discovered that through intent or neglect that
approximately three months of billing for Staff Care locum tenens of approximately Three Hundred
Twenty Six Thousand Two Hundred Sixty One Dollars ($326,261.00) had been accrued and left
unpaid by the three principles of AIA, Cortinas, Wojcicki and Cohen. Burke had resigned and did
not discover the unpaid billing until he returned in January of 2008.
20. At the time of the discovery of the unpaid Staff Care bills both Cortinas and
Wojcicki had resigned and left AIA on the verge of bankruptcy by their departure and the unpaid
bills.RE: Defendant/Third Party Plaintiff's Amended Third Party Complaint
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21. Locum tenens physicians provided primarily through Staff Care were crucial
to AIA in servicing its contractual obligations to Midtown to provide radiographic reading services.
Faced with the loss of two members, the remaining two members of AIA, RBPL and BCPA were
in desperate need to continue hiring locum tenens through Staff Care and had a contractual
obligation to Staff Care on behalf of AIA to pay the past due bills.
22. — Cortinas and Wojcicki also left an unpaid bill for the “fair market” survey done
at their insistence which they had agreed to pay for. This amount remained due and owing
in the amount of Seven Thousand Five Hundred Ninety Eight Dollars ($7,598.00).
23. | AlAhad past due staff radiologist insurance premiums totaling Ten Thousand Six
Hundred Eighty Dollars ($10,680.00) which remained unpaid at the time of the resignation of
Cortinas and Wojcicki.
24. All compensation due from AIA to TCPA and WWPA was paid directly to the
principles, Cortinas and Wojcicki essentially alter egos of their professional associations.
25. All other benefits went to Cortinas and Wojcicki either directly or
through TCPA and WWPA.
26. All obligations of TCPA and WWPA to AIA were also obligations of Cortinas and
Wojcicki pursuant to the ROA.
CAUSES OF ACTION
COUNT I
UNJUST ENRICHMENT OF TCPA AND CORTINAS
27. _ AJA realleges paragraphs | through 25.RE: Defendant/Third Party Plaintiff's Amended Third Party Complaint
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Page 6
28. | TCPA and Cortinas unjustly enriched themselves to the detriment of AIA by
accepting the benefits of the Staff Care locum physicians without their payment, the benefit of the
fair market valuation without payment and the failure to make the insurance payments due for the
Staff Care physicians. She failed to pay her pro-rata payment to AIA for any of these monies
although contractually obligated to do so as a member and a principle pursuant to the ROA. All of
the debts were due and owing at the time Cortinas resigned from AIA.
29. It would be unjust and inequitable for TCPA and Cortinas to retain these
benefits without having to reimburse AIA for her pro-rata share of these member owed expenses.
As a result of TCPA and Cortinas unjust enrichment, AIA has suffered damages.
WHEREFORE, AIA requests a judgement that awards damages, costs and interest against
TCPA and Cortinas and any other relief the Court may deem just including attorneys fees if
appropriate.
COUNT II
BREACH OF FIDUCIARY DUTY TO AIA
30. ATA realleges paragraphs | through 25.
31. TCPA and Cortinas owed fiduciary duties to AIA as a member and principle
pursuant to the ROA and the FLLCA and Florida Statute § 608.462. These fiduciary duties required
TCPA and Cortinas to act in the best interest of AIA and its members.
32. TCPA and Cortinas breached the fiduciary duties owed to AIA and its
members by resigning and failing to repay and reimburse AIA for the unpaid locum tenens bills from
Staff Care, the fair market valuation bill, and the malpractice insurance and other costs and expensesRE: Defendant/Third Party Plaintiff's Amended Third Party Complaint
Case No. 2008-CA 002138 XXXX MB AO
Page 7
accrued prior to her resignation of AIA.
33. | TCPA and Cortinas breach of their duties has caused damages to AIA and
placed its very existence in jeopardy.
WHEREFORE, AIA requests a judgement that awards damages, costs and interest against
TCPA and Cortinas and any other relief the Court may deem just including attorneys fees if
appropriate.
COUNT Ill
BREACH OF CONTRACT
34. AIA realleges paragraphs 1 through 25.
35. | TCPA and Cortinas as its principle signed the ROA which contained a non-
competition covenant set forth in section 5.6. This restricted TCPA and Cortinas from directly or
indirectly engaging in any business which is in competition with AIA, in any manner, including the
provision of services related to radiology and any other related services within a fifteen mile radius
of any facility served by AIA for a period of two years. TCPA and Cortinas agreed that a violation
of this covenant not to compete would cause irreputable injury to AIA and that AIA is a highly
referral based practice and the referral sources available to AIA were protectable business interests.
It was further agreed by TCPA and Cortinas by executing the ROA that the restricted covenant was
intended to protect AIA’s legitimate business interests and this restricted covenant was reasonable
in both time and geographic area.
36. TCPA and Cortinas agreed, by executing the ROA, that a breach of the non-
competition covenant would subject TCPA and Cortinas to damages equal to twice TCPA’s
compensation of the highest of any of the three previous employment years including all bonuses andRE: Defendant/Third Party Plaintiff's Amended Third Party Complaint
‘Case No. 2008-CA 002138 XXXX MB AQ
Page 8
fringe benefits.
37. | TCPAand Cortinas have breached this non-competition covenant by engaging in the
practice of radiology within the fifteen mile radius of a facility owned by AIA through various means
including but not limited to the operation of a tele-radiology practice from her home in Palm Beach
Gardens, Florida.
WHEREFORE, AIA requests a judgement that awards damages, costs and interest against
TCPA and Cortinas and any other relief the Court may deem just including attorneys fees if
appropriate.
COUNT IV
UNJUST ENRICHMENT OF WWPA AND WOJCICKI
38. ATA realleges paragraphs | through 25.
39. | WWPA and Wojcicki unjustly enriched themselves to the detriment of AIA
by accepting the benefits of the Staff Care locum physicians without their payment, the benefit of
the fair market valuation without payment and the failure to make the insurance payments due for
the Staff Care physicians. He failed to pay his pro-rata payment to AIA for any of these monies
although contractually obligated to do so as a member and a principle pursuant to the ROA. All
of the debts were due and owing at the time Wojcicki resigned from AIA.
40. It would be unjust and inequitable for WWPA and Wojcicki to retain these
benefits without having to reimburse AIA for his pro-rata share of these member owed expenses.
As a result of WWPA and Wojcicki unjust enrichment, AIA has suffered damages.
WHEREFORE, AIA requests a judgement that awards damages, costs and interestRE: DefendanyThird Party Plaintiff's Amended Third Party Complaint
Case No. 2008-CA 002138 XXXX MB AO
Page 9
against WWPA and Wojcicki and any other relief the Court may deem just including attorneys
fees if appropriate.
COUNT V
REACH OF. Y TO
41. AlA realleges paragraphs 1 through 25.
42. WWPA and Wojcicki owed fiduciary duties to AIA as a member and principle
pursuant to the ROA, the FLLCA and Florida Statute § 608.462. These fiduciary duties required
WWPA and Wojcicki to act in the best interest of AIA and its members.
43. | WWPA and Wojcicki breached the fiduciary duties owed to AIA and its members
by resigning and failing to repay and reimburse AIA for the unpaid locum tenens bills from Staff
Care, the fair market valuation bill, and the malpractice insurance and other costs and expenses
accrued prior to his resignation of AIA.
44. | WWPA and Wojcicki breach of their duties has caused damages to AIA and
placed its very existence in jeopardy.
WHEREFORE, AIA requests a judgement that awards damages, costs and interest against
WWPA and Wojcicki and any other relief the Court may deem just including attorneys fees if
appropriate.
JURY DEMAND
AIA demands a jury trial on all issues that may be decided by a jury.RE: Defendan/Third Party Plaintiff's Amended Third Party Complaint
‘Case No. 2008-CA 002138 XXXX MB AO
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I HEREBY C. that a true and correct copy of the foregoing was furnished by mail
and facsimile on this day of April 2009 to:
Adam Rabin, Esq.
McCabe Rabin, P.A.
1601 Forum Place, Suite 301
West Palm Beach, FL 33401
Attorney for Plaintiff and
Third Party Defendants
Telephone: 561-659-7878
Facsimile: 561-659-7876
LAW OFFICE OF DAVID W. SPICER, P.A.
Counsel for Defendants/Third Party Plaintiffs
11000 Prosperity Farms Road, Suite 104
Palm Beach Gardens, FL 33410-3477
(561) 625-6066-Telepho
(561) 625-6016-PacsimileIN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO. 502008CA002138XXXXMB AO
TERESA MARIA CORTINAS, M.D., P.A.,
Plaintiff,
ve
x
t
ADVANCED IMAGING ASSOCIATES, LLC,
ROBERT D. BURKE, M.D., P.L. AND
ROBERT D. BURKE,
Defendants,
ve
WALTER E. WOIJCICKI, MD., PH.D., P.A.
Third-Party Defendant,
——— ae |
PLAINTIFF’S SECOND AMENDED COMPLAINT AND THIRD-PARTY DEFENDANT’S
COUNTERCLAIM, ANSWER, AND AFFIRMATIVE DEFENSES
Plaintiff, Teresa Maria Cortinas, M.D., P.A. (“TCPA”) and Third-Party Defendant,
Walter E. Wojcicki, M.D., Ph.D, P.A. (“WWPA”), hereby serve TCPA’s Second Amended
Complaint and Third-Party Defendant’s Counterclaim, Answer, and Affirmative Defenses, and
state:
TCPA’s SECOND AMENDED COMPLAINT AND WWPA’s COUNTERCLAIM
TCPA and WWPA jointly allege their claims against Advanced Imaging Associates, LLC
(“AIA”), Robert D. Burke, M.D., P.L. (“RBPL”), and Robert D. Burke (“Burke”), and state as
follows:
DEFENDANT'S
‘ae am iIntroduction
1 This is a business litigation action brought by Teresa M. Cortinas, M.D.
(“Cortinas”) and Walter E. Wojcicki, M.D., PhD. (“Wojcicki”), through their respective
professional corporations, TCPA and WWPA, to recover for the following:
a. unpaid compensation against AIA, their former radiology practice; and
be breach of the duties of loyalty, care, and good faith and fair dealing against
Burke and RBPL.
The Parties
2. TCPA is a Florida professional corporation that was an equity member of AIA
through December 31, 2007. TCPA’s sole principal and shareholder is Cortinas.
3. WWPA is a Florida professional corporation that was an equity member of AIA
through January 18, 2008. WWPA’s sole principal and shareholder is Wojcicki.
4. AIA is a Florida limited liability company that operates as a radiology practice
group. TCPA and WWPA are former members of AIA.
5. RBPL is Burke’s professional limited liability company that is an equity member
of AIA. Burke and/or RBPL, at all material times, served as the manager of AIA.
6. Burke, individually or through RBPL, is the following:
a. the manager of AIA;
b. a founding member of AIA;
c the president, co-managing member, and 40% interest holder (individually
or through an entity controlled by him) in Midtown Imaging, LLC
(“Midtown”);d. the sole owner and principal of Midtown Imaging, P.A. (“MTPA”); and
e. individually responsible to fully comply with duties imposed by the AIA
Restated Operating Agreement (“ROA”).
7. Midtown is a Florida limited liability company. Palm Beach Capital Partners
(“PBCP”), through an entity that it owns or controls, is co-managing member and 60% owner of
Midtown. Midtown provides radiology imaging services to medical patients and has an
arrangement with AIA whereby AJA’s radiologists provide professional reading services for the
majority of Midtown’s patients (the “Radiology Services”).
iw ‘tion and Venue
8. This matter has an amount in controversy that exceeds $15,000 exclusive of
attorneys’ fees, costs, and interest. Jurisdiction and venue are proper in Palm Beach County
because the acts giving rise to TCPA and WWPA’s causes of action arose in Palm Beach County. .
General Allegations
9 In 2002, Cortinas helped found AIA with Burke. In 2004, Wojcicki joined AIA’s
practice as an associate radiologist and, in 2006, became an equity member of AIA.
10. From 2004 through the present, AIA has served as the major provider of the
Radiology Services for Midtown, which is co-managed and co-owned by Burke. Therefore,
Burke wears at least “two hats” as manager and owner of both AIA and Midtown, which is a
conflict of interest that puts Burke’s personal interests over that of TCPA and WWPA. Burke’s
conflicts of interest and breaches of duties of loyalty, care, and good faith and fair dealing caused
harm directly to TCPA and WWPA.
11. During these years, AIA’s practice was busy but not competitive in compensatingits physicians at market rate. Burke’s conflicts of interest and refusal to demand that Midtown
compensate TCPA and WWPA at fair market value for radiology services left ALA under-
compensated and unable to retain radiologists. High radiologist turnover rates substantially were
due to the excessive workloads required of ATA’s radiologists and staffing shortages. Burke
benefitted from this turmoil as associate radiologists would not stay long enough to make
“partner” and receive equity in AIA.
12. Burke further collaborated with Midtown to arrange for AIA’s radiologists to
provide professional Radiology Services to other business entities besides Midtown (‘Outside
Reads”). AIA physicians provided reading services to the following, among others:
e Innovative Diagnostic Imaging;
e Center for Bone and Joint;
Jupiter Hematology-Oncology; and
° Abacoa Imaging.
13. Burke hid his compensation arrangements with these and other entities from TCPA.
and WWPA, causing them direct harm. Hundreds of thousands of dollars of professional services
were provided for these and other entities for which TCPA and WWPA were uncompensated or
under-compensated because Burke funneled their compensation to himself.
14. In 2004, two equity members, Dr. Randy Sag and Dr. David Feldman, left AIA’s
practice because of Burke’s conflicts of interest, refusal to pay them at fair market value, and
refusal to pay them for the Outside Reads.
15. Inearly 2006, an Operating Agreement for AIA (the “Original OA”) was signed by
AIA, WWPA and RBPL. The Original OA designated Burke as AIA’s manager. See OriginalOA, {1 1.9(n) and 3.1. The Original OA is attached as Exhibit 1.
16. By early 2007, AIA’s founders, Cortinas and Burke, had invited their associate
radiologists Drs. Bradley Cohen (“Cohen”) and Wojcicki to participate as equity members of AIA
and agreed to revise AIA’s ownership structure so that all four equity members owned a 25%
interest.
17. As part of the plan for AIA’s revised ownership structure, Cortinas, Wojcicki and
Cohen also communicated to Burke their dissatisfaction with AIA’s compensation for the
Radiology Services, which was well below fair market value. AIA had been getting paid 13% and
then 14% of Midtown’s net collected revenues, while fair market value for the Radiology Services
is estimated at between 16.6% and 22.6%.
18. ‘It was in Burke’s self-interest as the president, co-manager and co-owner of
Midtown to pay AJA as little as possible for the Radiology Services. The less that AIA was paid,
the more Burke earned from Midtown, i.e., any profits eamed by AIA were split between AIA’s
four members, while the profits earned by Midtown were only split between Burke and PBCP. As
such, Burke’s role as manager and a principal owner in both AIA and Midtown presented a
conflict of interest.
19. By March 2007, tensions between Burke, Cortinas, Wojcicki and Cohen had risen
to the level of a near mutiny. This prompted Burke in March 2007 to write an e-mail to his ALA
partners indicating that he was withdrawing from all management responsibilities with AIA and
planning to minimize his reading duties going forward.
20. On the heels of Burke’s purported withdrawal, on March 27, 2007, Cortinas,
Wojcicki, and Cohen were successful in compelling a “sit down” with Midtown to increase AIA’scompensation. Richard Schlanger and Nathan Ward of PBCP, and Kevin Johnson (“Johnson”),
Midtown’s Chief Financial Officer, attended the meeting.
21. At this meeting, the AIA members demanded fair market value compensation for
the Radiology Services provided to Midtown. The compensation figures were memorialized in a
chart (the “Chart”) prepared by Midtown and agreed to by AIA, which is attached as Exhibit 3.
22. The Chart projected Midtown’s 2007 revenues as $28,163,963 and created a
compensation floor of 14% of Midtown’s net collected revenues, plus some additional outside
fees, as compensation for ALA’s Radiology Services. Pursuant to the Chart, AIA’s projected 2007
revenues were $4,302,955, and Midtown agreed to pay AIA a minimum monthly payment of
$366,667 for the remainder of 2007.
23. . Pursuant to the Chart, Midtown also agreed that at the end of 2007, Midtown
would review what “actually came through [Midtown] and apply the above formula paying any
overage that may have occurred.” As such, the parties agreed that the $366,667 would serve as
the minimum compensation to be paid to AIA and any “overage” that Midtown received would be
distributed to AJA at year end. The Chast only referenced paying an overage above the
compensation floor; it did not reference any true-up for revenues that came in below projections.
24. Following the “sit down” meeting that resulted in the Chart, in April 2007, Burke,
Cortinas, Cohen, and Wojcicki executed the ROA, which provided a 25% interest to each
physician’s professional corporation and made the ROA retroactive to January 1, 2007. The ROA
is attached as Exhibit 2. The ROA reiterated Burke’s designation as manager of AIA. See ROA,
99 1.9(n) and 3.1.
25. The ROA further imposed individual liability upon Burke for all duties that heperformed in the name of RBPL as follows:
If a Member is an entity, such Member shall be that entity acting
through. its principal (i.e. General Partner, Managing Member,
President, etc.). All rights and obligations of any Member shall
also be binding upon its principal.
ROA, 9 1.9(0) (Emphasis added).
26. The ROA further broadens the otherwise limited statutory duties imposed upon
AIA’s managing member in that the “Managing Member shall be under a fiduciary duty to
conduct the affairs of the Company at arm[’]s length and in the best interests of the Company and
of the Members.” These expanded duties apply to both RBPL and Burke pursuant to paragraph
1.9(0) of the ROA.
27. Between the spring and late summer of 2007, Midtown continued to pay AIA in
accordance with the agreement set forth in the Chart, i.e., $366,667 monthly.
28. But by September 2007, Burke had continued his involvement in AIA’s
management, proving false his March 2007 announcement that he would withdraw from his
management duties. As such, the working conditions at AIA continued to worsen, which led to
the ongoing resignations of AIA’s physicians and made the working environment intolerable for
Cortinas and Wojcicki.
29. On September 11, 2007, Cortinas, on behalf of WWPA, provided written notice to
AIA that she was resigning from AIA effective as of December 31, 2007. On October 19, 2007,
Wojcicki, on behalf of his professional corporation, provided written notice that he was resigning
effective as of January 18, 2008.
30. After Cortinas and Wojcicki’s notices of resignation, Midtown paid AIA only$300,000 for November and December 2007, creating a two month shortfall of the monies due to
AIA of $66,667 per month.
31. TCPA and WWPA are entitled to compensation from AIA pursuant to section 5.5
of the ROA. That section provides that TCPA and WWPA are entitled to their share of “any
technical revenues paid to and received by [AIA] or any Member on behalf of [ALA].” (Emphasis
added). This means that TCPA and WWPA are entitled to their share of any direct or indirect
income flowing to AIA, Burke, RBPL, MTPA, or Midtown as a result of technical revenues or
global fees for imaging services.
32. As a result of the various breaches and wrongful conduct committed by AJA,
RBPL and Burke, as set forth in the causes of action below, TCPA and WWPA have suffered
damages.
33. Any necessary condition precedent has been performed.
TCPA’s CLAIMS
Count 1
Breach of Contract - TCPA Against AIA
34. | TCPA realleges paragraphs 1 through 33.
35. | TCPA had a contract with AIA to pay certain compensation to TCPA in 2007, the
terms of which were memorialized in the Chart.
36. AIA materially breached its contract with TCPA by:
a. failing to pay TCPA its compensation of $52,480 for December 2007;
b. failing to pay TCPA approximately $22,000 per month for November and
December 2007, totaling $44,000; andc. failing to pay TCPA for its share of any overage that was owed to AIA by
Midtown.
37. AJA’s breaches have caused damages to TCPA.
WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest
against AIA and any other relief that the Court deems just.
Count II
Breach of Contract — TCPA Against AJA, Burke and RBPL
38. TCPA realleges paragraphs 1 through 33.
39. TCPA entered into the ROA with AIA, Burke and RBPL.
40. Section 5.5 of the ROA provides that TCPA is entitled to its share of “any
technical revenues paid to and received by [AIA] or any Member on behalf of [AIA].” (Emphasis
added). This means that TCPA is entitled to its share of any direct or indirect income flowing to
AIA, Burke, RBPL, MTPA, or Midtown as a result of technical revenues or global fees for
imaging services.
41. | TCPA has given notice of withdrawal of its membership in AJA and has not
received its share of any direct or indirect income received by Burke for technical revenues or
global fees received by AIA, Burke, RBPL, MTPA, or Midtown.
42. AJA, Burke, and RBPL, therefore, have breached Section 5.5 of the ROA by
failing to pay TCPA.
43. AJA, Burke, and RBPL’s breaches have caused damages to TCPA.
WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest
against AJA and any other relief that the Court deems just._Count IIT
Breach of Contract - TCPA Against AIA
44. | TCPA realleges paragraphs 1 through 33.
45. | TCPA entered into an oral contract with ALA whereby TCPA and Burke and/or
RBPL in 2006 were, as the 50% equity members of AIA, entitled to the same number of months
of paid vacation.
46. In 2006, Burke took four months of paid vacation from AIA.
47. Tn 2006, Cortinas likewise took four months vacation — three of which were used
for her maternity leave. But AIA, at Burke’s direction, paid TCPA only for three months and
refused to pay for the fourth month. Burke expressed to Cortinas that he was angry that she had
taken maternity leave.
48. AJA’s failure to provide TCPA its compensation for December 2006 constituted a
breach of the parties’ oral contract.
49. Asaresult of AIA’s breach, TCPA has suffered damages in the amount of
approximately $60,000.
WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest
against AIA and any other relief that the Court deems just.
Count IV
Unjust Enrichment —TCPA Against AIA
50. TCPA realleges paragraphs 1 through 33.
51. AIA has unjustly enriched itself to the detriment of TCPA by doing the following:
a. failing to pay TCPA its compensation for December 2007 in the amount of
10$52,480;
b. failing to pay TCPA approximately $22,000 per month for November and
December 2007, totaling $44,000; and
c. refusing to provide TCPA vacation pay for December 2006 in an
approximate amount of $60,000.
52. It'would be inequitable for AIA to retain the benefit conferred upon it by TCPA.
53. Asa result of AIA’s unjust enrichment, TCPA has suffered damages.
WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest
against AIA and any other relief that the Court deems just.
Count V
Breach of Statutory Duties Under Fla. Stat. Ch. 608 -- [CPA Against RBPL and Burke
54. | TCPA realleges paragraphs 1 through 33.
55. In their capacities as managing member or manager of AIA, RBPL and/or Burke
owed duties of loyalty, care, and good faith and fair dealing to TCPA. See Fla. Stat. §§ 608.4225
and 608.4226.
56. The ROA further extends to Burke individually all duties that apply to RBPL as a
member: “All rights and obligations of any Member shall also be binding upon its principal.”
ROA, 1 1.9(0).
57. Burke and/or RBPL breached their duties of loyalty to TCPA by:
a. failing to account to TCPA for the following:
i. the profit and benefit that RBPL and Burke received by refusing to
pay TCPA fair market value for its Radiology Services;
peii. retaining profit and benefit from a disproportionate share of the
revenues derived from Outside Reads; and
iii. the portion of the technical revenues or global fees received by
Burke, RBPL, MTPA, Midtown or any entity owned or controlled
by Burke.
b. dealing with AIA on behalf of parties -- Midtown, MTPA, and Neuro-
Imaging Associates, LLC -- that have interests adverse to AIA and/or
compete with AIA.
58. | RBPL and Burke breached their duty of care to TCPA by engaging in illegal or
improper splitting of fees with Midtown and outside physicians that deprived TCPA of its share of
profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional
misconduct and knowing violations of the law.
59. All of the above allegations also violate a manager’s duty of good faith and fair
dealing to act in TCPA’s best interests.
60. | RBPL and Burke’s breaches of their duties have caused damages to TCPA.
WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest
against Burke and RBPL and any other relief that the Court deems just.
Count VI
Breach of Fiduciary Duty Under ROA -- TCPA Against RBPL and Burke
61. TCPA realleges paragraphs 1 through 33.
62. The ROA broadens the otherwise limited statutory duties that RBPL and Burke, as
AIA’s managing member or manager, owed to TCPA. Specifically, the ROA provides that “{t]he
12Managing Member shall be under a fiduciary duty to conduct the affairs of the Company at
arm{(’]s length and in the best interests of the Company and of the Members.” ROA, 13.1
63. The ROA further extends to Burke individually all duties that apply to RBPL as a
member: “All rights and obligations of any Member shall also be binding upon its principal.”
ROA, 11.9(0).
64. | RBPL and Burke breached their fiduciary duties to conduct the affairs of AJA at
arm(’Js length and in TCPA’s best interests by:
a. failing to account to TCPA for the following:
i. the profit and benefit that RBPL and Burke received by refusing to
pay TCPA fair market value for its Radiology Services;
ii. retaining profit and benefit from a disproportionate share of the
revenues derived from Outside Reads; and
iii. the portion of the technical revenues or global fees received by
Burke, RBPL, MTPA, Midtown or any entity owned or controlled
by Burke.
b. dealing with AIA on behalf of parties -- Midtown, MTPA, and Neuro-
Imaging Associates, LLC -- that have interests adverse to AIA and/or
compete with AIA.
65. | RBPLand Burke breached their duty of care to TCPA by engaging in illegal or
improper splitting of fees with Midtown and outside physicians that deprived TCPA of its share of
profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional
misconduct and knowing violations of the law.
1366. All of the above allegations also violate RBPL and Burke’s fiduciary duties under
the ROA to act at arm’s length with TCPA and to act in TCPA’s best interests.
67. | RBPL and Burke’s breaches of their duties have caused damages to TCPA.
WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest
against Burke and RBPL and any other relief that the Court deems just.
Count VII
Breach of Contract - TCPA Against AIA, RBPL and Burke
68. TCPA realleges paragraphs 1 through 33.
69. TCPA withdrew as a member of AIA effective as of December 31, 2007.
70. Section 6.7 of the ROA provides, in pertinent part, that in the event that a member
of AIA leaves the company for any reason, that member’s percentage interest shall be purchased
for the sum of:
a. such member’s prorata portion of the monthly draw due to AIA from
Neuro-Imaging Associates, Inc. (“NIA”); and
b. each member’s prorata portion of the bonus pool which has not been paid
as determined by AIA’s managing member.
71. AIA, RBPL, and Burke have breached the ROA by:
a. failing to pay TCPA its prorata portion of the monthly draw due to AIA
from NIA, or to the extent that AIA received its monthly draw from
Midtown directly instead of through NIA, its prorata portion of that
monthly draw; and
b. failing to pay TCPA its portion of the bonus pool.
1472. As AJA’s manager or managing member and pursuant to ROA sections 1.9(n) and
3.1, Burke and/or RBPL have abused the discretion assigned to them under the ROA by failing to
pay TCPA its portion of the bonus pool; not creating a bonus pool to avoid payment; and making
improper self-payments of marketing fees and monthly draws to which RBPL and Burke were not
entitled.
73. AIA, RBPL, and Burke’s breaches of the ROA have caused damages to TCPA.
WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest
against ALA, RBPL, and Burke and any other relief that the Court deems just.
Count VI
Declaratory Judgment ~ TCPA Against RBPL and Burke
74. TCPA realleges paragraphs 1 through 33.
75. Pursuant to the non-competition covenant set forth in section 5.6 of the ROA,
TCPA is restricted from working at any facility within fifteen (15) miles of any facility served by
AIA for a period of two (2) years.
76. Because of AIA, Burke and/or RBPL’s breaches of its duties with TCPA, including
but not limited to failure to pay owed compensation to TCPA, TCPA is excused from complying
with the non-competition covenant.
77. TCPA asserts that, among other bases for the unenforceability of the non-
competition covenant, AIA, Burke and/or RBPL have no legitimate business interest required to
enforce such covenant and that enforcement of the covenant would be counter to public policy.
78. Acontroversy exists over TCPA’s rights and TCPA seeks a declaration that the
non-competition covenant is unenforceable.
15WHEREFORE, TCPA requests a judgment that declares that the non-competition
covenant in section 5.6 of the ROA is unenforceable. TCPA further requests an award of costs
and any other relief that the Court deems just.
WWPA’s COUNTERCLAIMS
Count IX
Breach of Contract - WWPA Against AIA
79. WWPA realleges paragraphs 1 through 33.
80. | WWPA had a contract with AIA to pay certain compensation to WWPA, the terms
of which were memorialized in the Chart.
81. ATA materially breached its contract with WWPA by:
a. failing to pay WWPA its compensation of approximately $37,000 for
services performed in January 2008;
b. failing to pay WWPA approximately $22,000 per month for November and
December 2007, totaling $44,000;
c. failing to reimburse $9,800 for his malpractice insurance premium; and
d. failing to pay WWPA for its share of any overages that were owed to AJA
by Midtown.
82. — AJA’s breaches have caused damages to WWPA.
WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest
against AIA and any other relief that the Court deems just.
Count X
Breach of Contract - WWPA
83. | WWPA realleges paragraphs 1 through 33.
1684. | WWPA had a Radiology Services Agreement (“RSA”) with AIA, a copy of which
is attached as Exhibit 4.
85. | WWPA was promoted from an associate radiologist to a shareholder as of
September 30, 2006. Pursuant to the RSA, upon becoming a shareholder, WWPA was entitled to
the same compensation paid to other shareholders of AIA.
86. AJA did not begin paying WWPA compensation commensurate with the other
shareholders as of September 30, 2006. Instead, AIA continued to pay WWPA its associate’s
compensation rate until December 2006.
87. _ AJA’s failure to pay WWPA the shareholder’s compensation rate as of September
30, 2006 created a compensation shortfall of approximately $37,000.
88. AJA further failed to pay WWPA its shareholder’s share of AIA’s bonus pool paid
to the other shareholders in or around year end 2006.
89. ATA materially breached its contract with WWPA by failing to pay WWPA
compensation to which it was entitled.
WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest
against AIA and any other relief that the Court deems just.
Count XI
Breach of Contract — WWPA Against AIA, Burke and RBPL
90. | WWPA realleges paragraphs 1 through 33.
91. WWPA entered into the ROA with AIA, Burke and RBPL.
92. Section 5.5 of the ROA provides that WWPA is entitled to its share of “any
technical revenues paid to and received by [AIA] or any Member on behalf of [AIA].” (Emphasis
7added). This means that WWPA is entitled to its share of any direct or indirect income flowing to
AIA, Burke, RBPL, MTPA, or Midtown as a result of technical revenues or global fees for
imaging services.
93. | WWPA has given notice of withdrawal of its membership in ALA and has not
received its share of any direct or indirect income received by Burke, including technical revenues
or global fees received by AIA, Burke, RBPL, MTPA, or Midtown.
94. AJA, Burke, and RBPL, therefore, have breached Section 5.5 of the ROA by
failing to pay WWPA.
95. AIA, Burke, and RBPL’s breaches have caused damages to WWPA.
WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest
against AIA and any other relief that the Court deems just.
Count XII
Unjust Enrichment ~ WWPA Against ATA
96. WWPA tealleges paragraphs 1 through 33.
97. AIA has unjustly enriched itself to the detriment of WWPA by doing the
following:
a. failing to pay WWPA its compensation for January 2008 in the amount of
approximately $37,000;
b. failing to pay WWPA approximately $22,000 per month for November and
December 2007, totaling $44,000;
c. failing to pay WWPA approximately $37,000 by not paying WWPA at the
shareholder’s compensation rate as of September 30, 2006;
18d. failing to pay WWPA its shareholder’s share of AIA’s bonus pool at year
end 2006. ,
98. It would be inequitable for AJA to retain the benefit conferred upon it by WWPA.
99. Asaresult of AIA’s unjust enrichment, WWPA has suffered damages.
WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest
against ALA and any other relief that the Court deems just.
Count XM
Breach of Statutory Duties Under Fla. Stat. Ch. 608 -- WWPA Against RBPL and Burke
100. WWPA realleges paragraphs 1 through 33.
101. In their capacities as managing member or manager of AJA, RBPL and/or Burke
owed duties of loyalty, care, and good faith and fair dealing to WWPA. See Fla. Stat. §§
608.4225 and 608.4226.
102. The ROA further extends to Burke individually all duties that apply to RBPL as a
member: “All rights and obligations of any Member shal] also be binding upon its principal.”
ROA, 1 1.9(0).
103. Burke and/or RBPL breached their duties of loyalty to WWPA by:
a. failing to account to WWPA for the following:
i. the profit and benefit that RBPL and Burke received by refusing to
pay WWPA fair market value for its Radiology Services;
ii. retaining profit and benefit from a disproportionate share of the
revenues derived from Outside Reads; and
iii. the portion of the technical revenues or global fees received by
19Burke, RBPL, MTPA, Midtown or any entity owned or controlled
by. Burke.
b. dealing with AIA on behalf of parties -- Midtown, MTPA, and Neuro-
Imaging Associates, LLC -- that have interests adverse to AJA and/or
compete with AIA.
104. RBPLand Burke breached their duty of care to WWPA by engaging in illegal or
improper splitting of fees with Midtown and outside physicians that deprived WWPA of its share
of profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional
misconduct and knowing violations of the law.
105. All of the above allegations also violate a manager’s duty of good faith and fair
dealing to act in WWPA’s best interests.
106. RBPL and Burke’s breaches of their duties have caused damages to WWPA.
WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest
against Burke and RBPL and any other relief that the Court deems just.
Count XIV
Breach of Fiduciary Duty Under ROA -- WWPA Against RBPL and Burke
107. WWPA realleges paragraphs 1 through 33.
108. The ROA broadens the otherwise limited statutory duties that RBPL and Burke, as
AIA’s managing member or manager, owed to WWPA. Specifically, the ROA provides that
“[t}he Managing Member shall be under a fiduciary duty to conduct the affairs of the Company at
arm{’]s length and in the best interests of the Company and of the Members.” ROA, {3.1
109. The ROA further extends to Burke individually all duties that apply to RBPL as a
20member: “All rights and obligations of any Member shall also be binding upon its principal.”
ROA, 11.9(0).
110. RBPL and Burke breached their fiduciary duties to conduct the affairs of AIA at
arm(’]s length and in WWPA’s best interests by:
a. failing to account to WWPA for the following:
i. the profit and benefit that RBPL and Burke received by refusing to
pay WWPA fair market value for its Radiology Services;
ii. retaining profit and benefit from a disproportionate share of the
revenues derived from Outside Reads; and
iii. the portion of the technical revenues or global fees received by
Burke, RBPL, MTPA, Midtown or any entity owned or controlled
by Burke.
b. dealing with AJA on behalf of parties -- Midtown, MTPA, and Neuro-
Imaging Associates, LLC -- that have interests adverse to AIA and/or
compete with AIA.
111. RBPL and Burke breached their duty of care to WWPA by engaging in illegal or
improper splitting of fees with Midtown and outside physicians that deprived WWPA of its share
of profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional
misconduct and knowing violations of the law.
112. All of the above allegations also violate RBPL and Burke’s fiduciary duties under
the ROA to act at arm’s length with WWPA and to act in WWPA’s best interests.
113. RBPL and Burke’s breaches of their duties have caused damages to WWPA.
21WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest
against Burke and RBPL and any other relief that the Court deems just.
Count XV
Breach of Contract - WWPA Against RBPL and Burke
114. WWPA realleges paragraphs 1 through 33.
115. WWPA withdrew as a member of AIA effective as of January 18, 2008.
116. Section 6.7 of the ROA provides, in pertinent part, that in the event that a member
of AIA leaves the company for any reason, that member’s percentage interest shall be purchased
for the sum of:
a. such member’s prorata portion of the monthly draw due to AIA from
Neuro-Imaging Associates, Inc. (“NIA”); and
b. each member’s prorata portion of the bonus pool which has not been paid
as determined by AIA’s managing member.
117. AJA, RBPL, and Burke have breached the ROA by:
a. failing to pay WWPA its prorata portion of the monthly draw due to AIA
from NIA, or to the extent that AIA received its monthly draw from
Midtown directly instead of through NIA, its prorata portion of that
monthly draw; and
b. failing to pay WWPA its portion of the bonus pool.
118. As AIJA’s manager or managing member and pursuant to ROA sections 1.9(n) and
3.1, Burke and/or RBPL have abused the discretion assigned to them under the ROA by failing to
pay WWPA its portion of the bonus pool; not creating a bonus pool to avoid payment; andimproper self-payments of marketing fees and monthly draws to which RBPL and Burke were not
entitled.
119. AIA, RBPL, and Burke’s breaches of the ROA have caused damages to WWPA,
WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest
against ALA, RBPL, and Burke and any other relief that the Court deems just.
WWPA’s ANSWER TO THIRD-PARTY COMPLAINT
1. In response to paragraph 1, WWPA admits that this is a business litigation action,
but denies the remaining allegations of paragraph 1.
2. In response to paragraph 2, WWPA admits the allegations.
3. In response to paragraph 3, WWPA admits the allegations.
4. In response to paragraph 4, WWPA admits the allegations for jurisdictional
purposes only.
5. In response to paragraph 5, WWPA admits the allegations.
6. In response to paragraph 6, WWPA denies the allegations.
7. In response to paragraph 7, WWPA denies the allegations.
Count I
Breach of Fiduciary Duty to AIA
8. In response to paragraph 8, WWPA realleges its responses to paragraphs 1 through
7 above.
9. In response to paragraph 9, WWPA admits that it owed certain fiduciary duties to
AIA. WWPA denies the remaining allegations of paragraph 9.
10. In response to paragraph 10, WWPA denies the allegations.11. In response to paragraph 11, WWPA denies the allegations.
; Count II
’ Breach of Fiduciary Duty to AIA
12. In response to paragraph 12, WWPA realleges its responses to paragraphs 1
through 7.
13. In response to paragraph 13, WWPA admits that it owed certain fiduciary duties to
WWPA. WWPA denies the remaining allegations of paragraph 13.
14. — Inresponse to paragraph 14, WWPA denies the allegations.
15. In response to paragraph 15, WWPA denies the allegations.
WHEREFORE, WWPA requests that judgment be entered in its favor on all of AIA’s claims,
attorneys’ fees under Fla. Stat. § 57.105(7), costs, interest, and all other relief that the Court
deems just or equitable.
WWPA’S AFFIRMATIVE DEFENSES TO THIRD-PARTY COMPLAINT
1. As to Counts I and II, WWPA did not owe AIA a fiduciary duty for the matters on
which AIA has sued WWPA.
2. As to Counts I and I, WWPA did not breach any duties of loyalty to AIA.
3. As to Counts I and II, AIA has failed to allege actions that meet the standards of
liability set forth in Fla. Stat. Ch. 608 et seq.
4. As to Counts I and II, AIA is equitably estopped from bringing its claims against
WWPA. AIA, through Burke, made representations to WWPA, including not limited to
statements about the income he should expect to generate by joining AIA and becoming a member
in ALA. WWPA relied upon these statements in joining AIA as an associate and member,
24including incurring moving expenses, selling his homes, and leaving the income of his prior
Position based upon these representations. AJA also attempted to force WWPA to take positions
that were flatly false to avoid being sued in this action.
5. As to Counts I and J, AIA has waived its claims against WWPA.
6. As to Counts I and IJ, AIA has no statutory or contractual basis to claim attorneys’
fees. But to the extent that such basis exists, WWPA claims it is entitled to attorneys’ fees under
Fla. Stat. § 57.105(7).
7. As to Counts | and Ill, any liability of WWPA should be apportioned or reduced by
the percentage of liability of the other members of AIA during the relevant time period.
8. As to Counts I and II, sections 1.9(i), 2.7, and 2.9 of the ROA preclude AlA’s
claims.
9. As to Counts J and I], there is no claim against WWPA because AIA intentionally,
willfully or wantonly caused or contributed to the damages that it claims.
10. As to Counts J and II, AIA’s claims are set off by its liabilities to WWPA.
11. ATA’s claims are barred by the economic loss rule.
12. | WWPA is entitled to arbitrate any claims asserted by AIA per the terms of the
RSA.
Jury DEMAND
TCPA and WWPA demand a jury trial on all issues available.CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S.
Mail to David W. Spicer, Esquire, Law Office of David W. Spicer, P.A., 11000 Prosperity Faims
Road, Suite 104, Palm Beach Gardens, Florida 33410 on July 21, 2008.
McCabe RaBIN, P.A.
Attomeys for Teresa Maria Cortinas, MD., P.A.
and Walter E. Wojcicki, M-D., Ph.D, P-A.
525 S. Flagler Drive, Suite 200
West Palm Beach, FL 33401
Tel: 561-659-7878
Fax: 561-659;7876
By: Mtttii1i1ttty
Adam T. Rabin
Fla. Bar No. 985635EXHIBIT |OPERATING AGREEMENT OF
ADVANCED IMAGING ASSOCIATES, LLCTABLE OF CONTENTS
ARTICLEI
INTRODUCTION...
1.1. Formation of Limited Liabilit
Preview
IN THE CIRCUIT COURT OF THE 15" JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO. 2008-CA 002138 XXXX MB AO TERESA MARIA CORTINAS, M.D., P.A., Plaintiff, v. ADVANCED IMAGING ASSOCIATES, LLC, ROBERT D. BURKE, M.D., P.L., ROBERT D. BURKE, and DIAGNOSTIC ANCILLARY SERVICES, LLC, Defendants/Third Party Plaintiffs, v. WALTER E. WOJCICKI, M.D., Ph.D., P.A., WALTER E. WOJCICKI, TERESA MARIA CORTINAS, M.D., P.A. and TERESA MARIA CORTINAS, Third Party Defendants. / FILED omnes cunt TION R. BOCK cine oO cling MPT; Meee LER AMENDED THIRD PARTY COMPLAINT Defendant, ADVANCED IMAGING ASSOCIATES, LLC, files this Amended Third Party Complaint against Third Party Defendants, WALTER E. WOJCICKI, M.D., Ph.D., P.A., WALTER E . WOJCICKI, TERESA MARIA CORTINAS, M.D., P.A. and TERESA MARIA CORTINAS and states as follows: INTRODUCTION 1. Plaintiff, Teresa Maria Cortinas, M.D., P.A. and Third Party Defendant, Walter E. Wojcicki, M.D., Ph.D., P.A. filed a Second Amended Complaint and Third Party Defendant’sRE: Defendant/Third Party Plaintiff's Amended Third Party Complaint Case No. 2008-CA 002138 XXXX MB AO Page 2 Counterclaim Answer and Affirmative Defenses attached hereto as Exhibit “1.” 2. Defendant, Robert D. Burke, Defendants/Third Party Plaintiffs, Advanced Imaging Associates, LLC and Robert D. Burke, M.D., P.L., filed their Answer to Plaintiff's Second Amended Complaint, Third Party Defendant’s Counterclaim, and Counterclaim attached hereto and incorporated herein as Exhibit ”2.” 3. This is a business litigation action between three of the four members and principles of Advanced Imaging Associates, LLC, Teresa Maria Cortinas, M.D., P.A. (TCPA), Teresa Maria Cortinas (Cortinas), Walter E. Wojcicki, M.D., Ph.D., P.A. (WWPA), Walter E. Wojcicki (Wojcicki), Robert D. Burke, M.D., P.L. (RBPL), Robert D. Burke (Burke), and Advanced Imaging Associates, LLC (AIA) to recover various damage amounts claimed to be due to both AIA and the individual members. The fourth member of AIA, Bradley M. Cohen, M.D., P.A. (BCPA) is not a party to the present action. PARTIES 4. TCPA is a Florida professional corporation that was an equity member of AIA through December 31, 2007. TCPA’s sole principle and shareholder is Cortinas. 5. WWPA is a Florida professional corporation that was an equity member of AIA through January 18, 2008. WWPA’s sole principle and shareholder is Wojcicki. 6. RBPL is a Florida professional limited liability company that is an equity member of AIA. RBPL’s sole principle and shareholder is Burke. 7. AIA is a Florida limited liability company that operates as a radiology practice group.RE: Defendany/Third Party Plaintiff's Amended Third Party Complaint Case No. 2008-CA 002138 XXXX MB AO Page 3 8. The Restated Operating Agreement (ROA) was the written operating agreement between the four members of AIA attached hereto as part of Exhibit “1.” JURISDICTION AND VENUE 9. This matter has an amount in controversy that exceeds Fifteen Thousand Dollars ($15,000.00) exclusive of attorneys fees, costs, and interest. Jurisdiction and venue are proper in Palm Beach County because the acts giving rise to all causes of action arose in Palm Beach County. GENERAL ALLEGATIONS 10. AIA adopts and incorporates the allegations found within Exhibit “2". 11. The ROA was executed by Burke as principle on behalf of member RBPL; Cortinas as principle on behalf of member TCPA; Wojcicki as principle on behalf of member WWPA,; and Bradley M. Cohen (Cohen) as principle on behalf of member Bradley M. Cohen, M.D., P.A. (BCPA). 12. At the time of the execution of the ROA on January 1, 2007 and at all times material hereto, each of the four members had only one principle. 13. The ROA held that the founding members shall mean Robert D. Burke, M.D. and Teresa Cortinas, M.D. 14. The ROA specifically states that if the member is an entity, such member Shall be that entity acting through its principle and all rights and obligations of any member shall also be binding upon its principle. 15. All rights and obligations of member TCPA are binding upon Cortinas and all rights and obligations of WWPA are binding on Wojcicki pursuant to the clear language of the ROA.RE: Defendant/Third Party Plaintiff's Amended Third Party Complaint Case No. 2008-CA 002138 XXXX MB AQ Page 4 16. On October 19, 2007 Wojcicki by and through WWPA provided written notice that he was resigning and did resign from AIA effective as of January 18, 2008. 17. Cortinas by and through TCPA gave various notices of her resignation from AIA and resigned at the beginning of January 2008. 18. While the members a part of AIA, were compensated by being paid a percentage of net collected revenue from an entity known as Midtown Imaging, LLC (Midtown). The individual members of AIA were compensated by splitting the balance of their monthly compensation payment for Midtown after the payment of certain financial obligations of AIA including but not limited to temporary physicians hired by AIA to provide radiologic reading services from a company known as Staff Care. The use of the Staff Care temporary physicians, known as locum tenens, allowed members and principles of AIA to enjoy time off and prevented a severe decrease in revenue to AIA. 19. Invoices from Staff Care to AIA clearly stated they were “due upon receipt” and are billed twice a month. After Cortinas and Wojcicki resigned and had been paid all compensation due, except for a portion of their last checks, it was discovered that through intent or neglect that approximately three months of billing for Staff Care locum tenens of approximately Three Hundred Twenty Six Thousand Two Hundred Sixty One Dollars ($326,261.00) had been accrued and left unpaid by the three principles of AIA, Cortinas, Wojcicki and Cohen. Burke had resigned and did not discover the unpaid billing until he returned in January of 2008. 20. At the time of the discovery of the unpaid Staff Care bills both Cortinas and Wojcicki had resigned and left AIA on the verge of bankruptcy by their departure and the unpaid bills.RE: Defendant/Third Party Plaintiff's Amended Third Party Complaint Case No. 2008-CA 002138 XXXX MB AO Page 5 21. Locum tenens physicians provided primarily through Staff Care were crucial to AIA in servicing its contractual obligations to Midtown to provide radiographic reading services. Faced with the loss of two members, the remaining two members of AIA, RBPL and BCPA were in desperate need to continue hiring locum tenens through Staff Care and had a contractual obligation to Staff Care on behalf of AIA to pay the past due bills. 22. — Cortinas and Wojcicki also left an unpaid bill for the “fair market” survey done at their insistence which they had agreed to pay for. This amount remained due and owing in the amount of Seven Thousand Five Hundred Ninety Eight Dollars ($7,598.00). 23. | AlAhad past due staff radiologist insurance premiums totaling Ten Thousand Six Hundred Eighty Dollars ($10,680.00) which remained unpaid at the time of the resignation of Cortinas and Wojcicki. 24. All compensation due from AIA to TCPA and WWPA was paid directly to the principles, Cortinas and Wojcicki essentially alter egos of their professional associations. 25. All other benefits went to Cortinas and Wojcicki either directly or through TCPA and WWPA. 26. All obligations of TCPA and WWPA to AIA were also obligations of Cortinas and Wojcicki pursuant to the ROA. CAUSES OF ACTION COUNT I UNJUST ENRICHMENT OF TCPA AND CORTINAS 27. _ AJA realleges paragraphs | through 25.RE: Defendant/Third Party Plaintiff's Amended Third Party Complaint Case No. 2008-CA 002138 XXXX MB AO Page 6 28. | TCPA and Cortinas unjustly enriched themselves to the detriment of AIA by accepting the benefits of the Staff Care locum physicians without their payment, the benefit of the fair market valuation without payment and the failure to make the insurance payments due for the Staff Care physicians. She failed to pay her pro-rata payment to AIA for any of these monies although contractually obligated to do so as a member and a principle pursuant to the ROA. All of the debts were due and owing at the time Cortinas resigned from AIA. 29. It would be unjust and inequitable for TCPA and Cortinas to retain these benefits without having to reimburse AIA for her pro-rata share of these member owed expenses. As a result of TCPA and Cortinas unjust enrichment, AIA has suffered damages. WHEREFORE, AIA requests a judgement that awards damages, costs and interest against TCPA and Cortinas and any other relief the Court may deem just including attorneys fees if appropriate. COUNT II BREACH OF FIDUCIARY DUTY TO AIA 30. ATA realleges paragraphs | through 25. 31. TCPA and Cortinas owed fiduciary duties to AIA as a member and principle pursuant to the ROA and the FLLCA and Florida Statute § 608.462. These fiduciary duties required TCPA and Cortinas to act in the best interest of AIA and its members. 32. TCPA and Cortinas breached the fiduciary duties owed to AIA and its members by resigning and failing to repay and reimburse AIA for the unpaid locum tenens bills from Staff Care, the fair market valuation bill, and the malpractice insurance and other costs and expensesRE: Defendant/Third Party Plaintiff's Amended Third Party Complaint Case No. 2008-CA 002138 XXXX MB AO Page 7 accrued prior to her resignation of AIA. 33. | TCPA and Cortinas breach of their duties has caused damages to AIA and placed its very existence in jeopardy. WHEREFORE, AIA requests a judgement that awards damages, costs and interest against TCPA and Cortinas and any other relief the Court may deem just including attorneys fees if appropriate. COUNT Ill BREACH OF CONTRACT 34. AIA realleges paragraphs 1 through 25. 35. | TCPA and Cortinas as its principle signed the ROA which contained a non- competition covenant set forth in section 5.6. This restricted TCPA and Cortinas from directly or indirectly engaging in any business which is in competition with AIA, in any manner, including the provision of services related to radiology and any other related services within a fifteen mile radius of any facility served by AIA for a period of two years. TCPA and Cortinas agreed that a violation of this covenant not to compete would cause irreputable injury to AIA and that AIA is a highly referral based practice and the referral sources available to AIA were protectable business interests. It was further agreed by TCPA and Cortinas by executing the ROA that the restricted covenant was intended to protect AIA’s legitimate business interests and this restricted covenant was reasonable in both time and geographic area. 36. TCPA and Cortinas agreed, by executing the ROA, that a breach of the non- competition covenant would subject TCPA and Cortinas to damages equal to twice TCPA’s compensation of the highest of any of the three previous employment years including all bonuses andRE: Defendant/Third Party Plaintiff's Amended Third Party Complaint ‘Case No. 2008-CA 002138 XXXX MB AQ Page 8 fringe benefits. 37. | TCPAand Cortinas have breached this non-competition covenant by engaging in the practice of radiology within the fifteen mile radius of a facility owned by AIA through various means including but not limited to the operation of a tele-radiology practice from her home in Palm Beach Gardens, Florida. WHEREFORE, AIA requests a judgement that awards damages, costs and interest against TCPA and Cortinas and any other relief the Court may deem just including attorneys fees if appropriate. COUNT IV UNJUST ENRICHMENT OF WWPA AND WOJCICKI 38. ATA realleges paragraphs | through 25. 39. | WWPA and Wojcicki unjustly enriched themselves to the detriment of AIA by accepting the benefits of the Staff Care locum physicians without their payment, the benefit of the fair market valuation without payment and the failure to make the insurance payments due for the Staff Care physicians. He failed to pay his pro-rata payment to AIA for any of these monies although contractually obligated to do so as a member and a principle pursuant to the ROA. All of the debts were due and owing at the time Wojcicki resigned from AIA. 40. It would be unjust and inequitable for WWPA and Wojcicki to retain these benefits without having to reimburse AIA for his pro-rata share of these member owed expenses. As a result of WWPA and Wojcicki unjust enrichment, AIA has suffered damages. WHEREFORE, AIA requests a judgement that awards damages, costs and interestRE: DefendanyThird Party Plaintiff's Amended Third Party Complaint Case No. 2008-CA 002138 XXXX MB AO Page 9 against WWPA and Wojcicki and any other relief the Court may deem just including attorneys fees if appropriate. COUNT V REACH OF. Y TO 41. AlA realleges paragraphs 1 through 25. 42. WWPA and Wojcicki owed fiduciary duties to AIA as a member and principle pursuant to the ROA, the FLLCA and Florida Statute § 608.462. These fiduciary duties required WWPA and Wojcicki to act in the best interest of AIA and its members. 43. | WWPA and Wojcicki breached the fiduciary duties owed to AIA and its members by resigning and failing to repay and reimburse AIA for the unpaid locum tenens bills from Staff Care, the fair market valuation bill, and the malpractice insurance and other costs and expenses accrued prior to his resignation of AIA. 44. | WWPA and Wojcicki breach of their duties has caused damages to AIA and placed its very existence in jeopardy. WHEREFORE, AIA requests a judgement that awards damages, costs and interest against WWPA and Wojcicki and any other relief the Court may deem just including attorneys fees if appropriate. JURY DEMAND AIA demands a jury trial on all issues that may be decided by a jury.RE: Defendan/Third Party Plaintiff's Amended Third Party Complaint ‘Case No. 2008-CA 002138 XXXX MB AO Page 10 I HEREBY C. that a true and correct copy of the foregoing was furnished by mail and facsimile on this day of April 2009 to: Adam Rabin, Esq. McCabe Rabin, P.A. 1601 Forum Place, Suite 301 West Palm Beach, FL 33401 Attorney for Plaintiff and Third Party Defendants Telephone: 561-659-7878 Facsimile: 561-659-7876 LAW OFFICE OF DAVID W. SPICER, P.A. Counsel for Defendants/Third Party Plaintiffs 11000 Prosperity Farms Road, Suite 104 Palm Beach Gardens, FL 33410-3477 (561) 625-6066-Telepho (561) 625-6016-PacsimileIN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502008CA002138XXXXMB AO TERESA MARIA CORTINAS, M.D., P.A., Plaintiff, ve x t ADVANCED IMAGING ASSOCIATES, LLC, ROBERT D. BURKE, M.D., P.L. AND ROBERT D. BURKE, Defendants, ve WALTER E. WOIJCICKI, MD., PH.D., P.A. Third-Party Defendant, ——— ae | PLAINTIFF’S SECOND AMENDED COMPLAINT AND THIRD-PARTY DEFENDANT’S COUNTERCLAIM, ANSWER, AND AFFIRMATIVE DEFENSES Plaintiff, Teresa Maria Cortinas, M.D., P.A. (“TCPA”) and Third-Party Defendant, Walter E. Wojcicki, M.D., Ph.D, P.A. (“WWPA”), hereby serve TCPA’s Second Amended Complaint and Third-Party Defendant’s Counterclaim, Answer, and Affirmative Defenses, and state: TCPA’s SECOND AMENDED COMPLAINT AND WWPA’s COUNTERCLAIM TCPA and WWPA jointly allege their claims against Advanced Imaging Associates, LLC (“AIA”), Robert D. Burke, M.D., P.L. (“RBPL”), and Robert D. Burke (“Burke”), and state as follows: DEFENDANT'S ‘ae am iIntroduction 1 This is a business litigation action brought by Teresa M. Cortinas, M.D. (“Cortinas”) and Walter E. Wojcicki, M.D., PhD. (“Wojcicki”), through their respective professional corporations, TCPA and WWPA, to recover for the following: a. unpaid compensation against AIA, their former radiology practice; and be breach of the duties of loyalty, care, and good faith and fair dealing against Burke and RBPL. The Parties 2. TCPA is a Florida professional corporation that was an equity member of AIA through December 31, 2007. TCPA’s sole principal and shareholder is Cortinas. 3. WWPA is a Florida professional corporation that was an equity member of AIA through January 18, 2008. WWPA’s sole principal and shareholder is Wojcicki. 4. AIA is a Florida limited liability company that operates as a radiology practice group. TCPA and WWPA are former members of AIA. 5. RBPL is Burke’s professional limited liability company that is an equity member of AIA. Burke and/or RBPL, at all material times, served as the manager of AIA. 6. Burke, individually or through RBPL, is the following: a. the manager of AIA; b. a founding member of AIA; c the president, co-managing member, and 40% interest holder (individually or through an entity controlled by him) in Midtown Imaging, LLC (“Midtown”);d. the sole owner and principal of Midtown Imaging, P.A. (“MTPA”); and e. individually responsible to fully comply with duties imposed by the AIA Restated Operating Agreement (“ROA”). 7. Midtown is a Florida limited liability company. Palm Beach Capital Partners (“PBCP”), through an entity that it owns or controls, is co-managing member and 60% owner of Midtown. Midtown provides radiology imaging services to medical patients and has an arrangement with AIA whereby AJA’s radiologists provide professional reading services for the majority of Midtown’s patients (the “Radiology Services”). iw ‘tion and Venue 8. This matter has an amount in controversy that exceeds $15,000 exclusive of attorneys’ fees, costs, and interest. Jurisdiction and venue are proper in Palm Beach County because the acts giving rise to TCPA and WWPA’s causes of action arose in Palm Beach County. . General Allegations 9 In 2002, Cortinas helped found AIA with Burke. In 2004, Wojcicki joined AIA’s practice as an associate radiologist and, in 2006, became an equity member of AIA. 10. From 2004 through the present, AIA has served as the major provider of the Radiology Services for Midtown, which is co-managed and co-owned by Burke. Therefore, Burke wears at least “two hats” as manager and owner of both AIA and Midtown, which is a conflict of interest that puts Burke’s personal interests over that of TCPA and WWPA. Burke’s conflicts of interest and breaches of duties of loyalty, care, and good faith and fair dealing caused harm directly to TCPA and WWPA. 11. During these years, AIA’s practice was busy but not competitive in compensatingits physicians at market rate. Burke’s conflicts of interest and refusal to demand that Midtown compensate TCPA and WWPA at fair market value for radiology services left ALA under- compensated and unable to retain radiologists. High radiologist turnover rates substantially were due to the excessive workloads required of ATA’s radiologists and staffing shortages. Burke benefitted from this turmoil as associate radiologists would not stay long enough to make “partner” and receive equity in AIA. 12. Burke further collaborated with Midtown to arrange for AIA’s radiologists to provide professional Radiology Services to other business entities besides Midtown (‘Outside Reads”). AIA physicians provided reading services to the following, among others: e Innovative Diagnostic Imaging; e Center for Bone and Joint; Jupiter Hematology-Oncology; and ° Abacoa Imaging. 13. Burke hid his compensation arrangements with these and other entities from TCPA. and WWPA, causing them direct harm. Hundreds of thousands of dollars of professional services were provided for these and other entities for which TCPA and WWPA were uncompensated or under-compensated because Burke funneled their compensation to himself. 14. In 2004, two equity members, Dr. Randy Sag and Dr. David Feldman, left AIA’s practice because of Burke’s conflicts of interest, refusal to pay them at fair market value, and refusal to pay them for the Outside Reads. 15. Inearly 2006, an Operating Agreement for AIA (the “Original OA”) was signed by AIA, WWPA and RBPL. The Original OA designated Burke as AIA’s manager. See OriginalOA, {1 1.9(n) and 3.1. The Original OA is attached as Exhibit 1. 16. By early 2007, AIA’s founders, Cortinas and Burke, had invited their associate radiologists Drs. Bradley Cohen (“Cohen”) and Wojcicki to participate as equity members of AIA and agreed to revise AIA’s ownership structure so that all four equity members owned a 25% interest. 17. As part of the plan for AIA’s revised ownership structure, Cortinas, Wojcicki and Cohen also communicated to Burke their dissatisfaction with AIA’s compensation for the Radiology Services, which was well below fair market value. AIA had been getting paid 13% and then 14% of Midtown’s net collected revenues, while fair market value for the Radiology Services is estimated at between 16.6% and 22.6%. 18. ‘It was in Burke’s self-interest as the president, co-manager and co-owner of Midtown to pay AJA as little as possible for the Radiology Services. The less that AIA was paid, the more Burke earned from Midtown, i.e., any profits eamed by AIA were split between AIA’s four members, while the profits earned by Midtown were only split between Burke and PBCP. As such, Burke’s role as manager and a principal owner in both AIA and Midtown presented a conflict of interest. 19. By March 2007, tensions between Burke, Cortinas, Wojcicki and Cohen had risen to the level of a near mutiny. This prompted Burke in March 2007 to write an e-mail to his ALA partners indicating that he was withdrawing from all management responsibilities with AIA and planning to minimize his reading duties going forward. 20. On the heels of Burke’s purported withdrawal, on March 27, 2007, Cortinas, Wojcicki, and Cohen were successful in compelling a “sit down” with Midtown to increase AIA’scompensation. Richard Schlanger and Nathan Ward of PBCP, and Kevin Johnson (“Johnson”), Midtown’s Chief Financial Officer, attended the meeting. 21. At this meeting, the AIA members demanded fair market value compensation for the Radiology Services provided to Midtown. The compensation figures were memorialized in a chart (the “Chart”) prepared by Midtown and agreed to by AIA, which is attached as Exhibit 3. 22. The Chart projected Midtown’s 2007 revenues as $28,163,963 and created a compensation floor of 14% of Midtown’s net collected revenues, plus some additional outside fees, as compensation for ALA’s Radiology Services. Pursuant to the Chart, AIA’s projected 2007 revenues were $4,302,955, and Midtown agreed to pay AIA a minimum monthly payment of $366,667 for the remainder of 2007. 23. . Pursuant to the Chart, Midtown also agreed that at the end of 2007, Midtown would review what “actually came through [Midtown] and apply the above formula paying any overage that may have occurred.” As such, the parties agreed that the $366,667 would serve as the minimum compensation to be paid to AIA and any “overage” that Midtown received would be distributed to AJA at year end. The Chast only referenced paying an overage above the compensation floor; it did not reference any true-up for revenues that came in below projections. 24. Following the “sit down” meeting that resulted in the Chart, in April 2007, Burke, Cortinas, Cohen, and Wojcicki executed the ROA, which provided a 25% interest to each physician’s professional corporation and made the ROA retroactive to January 1, 2007. The ROA is attached as Exhibit 2. The ROA reiterated Burke’s designation as manager of AIA. See ROA, 99 1.9(n) and 3.1. 25. The ROA further imposed individual liability upon Burke for all duties that heperformed in the name of RBPL as follows: If a Member is an entity, such Member shall be that entity acting through. its principal (i.e. General Partner, Managing Member, President, etc.). All rights and obligations of any Member shall also be binding upon its principal. ROA, 9 1.9(0) (Emphasis added). 26. The ROA further broadens the otherwise limited statutory duties imposed upon AIA’s managing member in that the “Managing Member shall be under a fiduciary duty to conduct the affairs of the Company at arm[’]s length and in the best interests of the Company and of the Members.” These expanded duties apply to both RBPL and Burke pursuant to paragraph 1.9(0) of the ROA. 27. Between the spring and late summer of 2007, Midtown continued to pay AIA in accordance with the agreement set forth in the Chart, i.e., $366,667 monthly. 28. But by September 2007, Burke had continued his involvement in AIA’s management, proving false his March 2007 announcement that he would withdraw from his management duties. As such, the working conditions at AIA continued to worsen, which led to the ongoing resignations of AIA’s physicians and made the working environment intolerable for Cortinas and Wojcicki. 29. On September 11, 2007, Cortinas, on behalf of WWPA, provided written notice to AIA that she was resigning from AIA effective as of December 31, 2007. On October 19, 2007, Wojcicki, on behalf of his professional corporation, provided written notice that he was resigning effective as of January 18, 2008. 30. After Cortinas and Wojcicki’s notices of resignation, Midtown paid AIA only$300,000 for November and December 2007, creating a two month shortfall of the monies due to AIA of $66,667 per month. 31. TCPA and WWPA are entitled to compensation from AIA pursuant to section 5.5 of the ROA. That section provides that TCPA and WWPA are entitled to their share of “any technical revenues paid to and received by [AIA] or any Member on behalf of [ALA].” (Emphasis added). This means that TCPA and WWPA are entitled to their share of any direct or indirect income flowing to AIA, Burke, RBPL, MTPA, or Midtown as a result of technical revenues or global fees for imaging services. 32. As a result of the various breaches and wrongful conduct committed by AJA, RBPL and Burke, as set forth in the causes of action below, TCPA and WWPA have suffered damages. 33. Any necessary condition precedent has been performed. TCPA’s CLAIMS Count 1 Breach of Contract - TCPA Against AIA 34. | TCPA realleges paragraphs 1 through 33. 35. | TCPA had a contract with AIA to pay certain compensation to TCPA in 2007, the terms of which were memorialized in the Chart. 36. AIA materially breached its contract with TCPA by: a. failing to pay TCPA its compensation of $52,480 for December 2007; b. failing to pay TCPA approximately $22,000 per month for November and December 2007, totaling $44,000; andc. failing to pay TCPA for its share of any overage that was owed to AIA by Midtown. 37. AJA’s breaches have caused damages to TCPA. WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest against AIA and any other relief that the Court deems just. Count II Breach of Contract — TCPA Against AJA, Burke and RBPL 38. TCPA realleges paragraphs 1 through 33. 39. TCPA entered into the ROA with AIA, Burke and RBPL. 40. Section 5.5 of the ROA provides that TCPA is entitled to its share of “any technical revenues paid to and received by [AIA] or any Member on behalf of [AIA].” (Emphasis added). This means that TCPA is entitled to its share of any direct or indirect income flowing to AIA, Burke, RBPL, MTPA, or Midtown as a result of technical revenues or global fees for imaging services. 41. | TCPA has given notice of withdrawal of its membership in AJA and has not received its share of any direct or indirect income received by Burke for technical revenues or global fees received by AIA, Burke, RBPL, MTPA, or Midtown. 42. AJA, Burke, and RBPL, therefore, have breached Section 5.5 of the ROA by failing to pay TCPA. 43. AJA, Burke, and RBPL’s breaches have caused damages to TCPA. WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest against AJA and any other relief that the Court deems just._Count IIT Breach of Contract - TCPA Against AIA 44. | TCPA realleges paragraphs 1 through 33. 45. | TCPA entered into an oral contract with ALA whereby TCPA and Burke and/or RBPL in 2006 were, as the 50% equity members of AIA, entitled to the same number of months of paid vacation. 46. In 2006, Burke took four months of paid vacation from AIA. 47. Tn 2006, Cortinas likewise took four months vacation — three of which were used for her maternity leave. But AIA, at Burke’s direction, paid TCPA only for three months and refused to pay for the fourth month. Burke expressed to Cortinas that he was angry that she had taken maternity leave. 48. AJA’s failure to provide TCPA its compensation for December 2006 constituted a breach of the parties’ oral contract. 49. Asaresult of AIA’s breach, TCPA has suffered damages in the amount of approximately $60,000. WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest against AIA and any other relief that the Court deems just. Count IV Unjust Enrichment —TCPA Against AIA 50. TCPA realleges paragraphs 1 through 33. 51. AIA has unjustly enriched itself to the detriment of TCPA by doing the following: a. failing to pay TCPA its compensation for December 2007 in the amount of 10$52,480; b. failing to pay TCPA approximately $22,000 per month for November and December 2007, totaling $44,000; and c. refusing to provide TCPA vacation pay for December 2006 in an approximate amount of $60,000. 52. It'would be inequitable for AIA to retain the benefit conferred upon it by TCPA. 53. Asa result of AIA’s unjust enrichment, TCPA has suffered damages. WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest against AIA and any other relief that the Court deems just. Count V Breach of Statutory Duties Under Fla. Stat. Ch. 608 -- [CPA Against RBPL and Burke 54. | TCPA realleges paragraphs 1 through 33. 55. In their capacities as managing member or manager of AIA, RBPL and/or Burke owed duties of loyalty, care, and good faith and fair dealing to TCPA. See Fla. Stat. §§ 608.4225 and 608.4226. 56. The ROA further extends to Burke individually all duties that apply to RBPL as a member: “All rights and obligations of any Member shall also be binding upon its principal.” ROA, 1 1.9(0). 57. Burke and/or RBPL breached their duties of loyalty to TCPA by: a. failing to account to TCPA for the following: i. the profit and benefit that RBPL and Burke received by refusing to pay TCPA fair market value for its Radiology Services; peii. retaining profit and benefit from a disproportionate share of the revenues derived from Outside Reads; and iii. the portion of the technical revenues or global fees received by Burke, RBPL, MTPA, Midtown or any entity owned or controlled by Burke. b. dealing with AIA on behalf of parties -- Midtown, MTPA, and Neuro- Imaging Associates, LLC -- that have interests adverse to AIA and/or compete with AIA. 58. | RBPL and Burke breached their duty of care to TCPA by engaging in illegal or improper splitting of fees with Midtown and outside physicians that deprived TCPA of its share of profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional misconduct and knowing violations of the law. 59. All of the above allegations also violate a manager’s duty of good faith and fair dealing to act in TCPA’s best interests. 60. | RBPL and Burke’s breaches of their duties have caused damages to TCPA. WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest against Burke and RBPL and any other relief that the Court deems just. Count VI Breach of Fiduciary Duty Under ROA -- TCPA Against RBPL and Burke 61. TCPA realleges paragraphs 1 through 33. 62. The ROA broadens the otherwise limited statutory duties that RBPL and Burke, as AIA’s managing member or manager, owed to TCPA. Specifically, the ROA provides that “{t]he 12Managing Member shall be under a fiduciary duty to conduct the affairs of the Company at arm{(’]s length and in the best interests of the Company and of the Members.” ROA, 13.1 63. The ROA further extends to Burke individually all duties that apply to RBPL as a member: “All rights and obligations of any Member shall also be binding upon its principal.” ROA, 11.9(0). 64. | RBPL and Burke breached their fiduciary duties to conduct the affairs of AJA at arm(’Js length and in TCPA’s best interests by: a. failing to account to TCPA for the following: i. the profit and benefit that RBPL and Burke received by refusing to pay TCPA fair market value for its Radiology Services; ii. retaining profit and benefit from a disproportionate share of the revenues derived from Outside Reads; and iii. the portion of the technical revenues or global fees received by Burke, RBPL, MTPA, Midtown or any entity owned or controlled by Burke. b. dealing with AIA on behalf of parties -- Midtown, MTPA, and Neuro- Imaging Associates, LLC -- that have interests adverse to AIA and/or compete with AIA. 65. | RBPLand Burke breached their duty of care to TCPA by engaging in illegal or improper splitting of fees with Midtown and outside physicians that deprived TCPA of its share of profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional misconduct and knowing violations of the law. 1366. All of the above allegations also violate RBPL and Burke’s fiduciary duties under the ROA to act at arm’s length with TCPA and to act in TCPA’s best interests. 67. | RBPL and Burke’s breaches of their duties have caused damages to TCPA. WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest against Burke and RBPL and any other relief that the Court deems just. Count VII Breach of Contract - TCPA Against AIA, RBPL and Burke 68. TCPA realleges paragraphs 1 through 33. 69. TCPA withdrew as a member of AIA effective as of December 31, 2007. 70. Section 6.7 of the ROA provides, in pertinent part, that in the event that a member of AIA leaves the company for any reason, that member’s percentage interest shall be purchased for the sum of: a. such member’s prorata portion of the monthly draw due to AIA from Neuro-Imaging Associates, Inc. (“NIA”); and b. each member’s prorata portion of the bonus pool which has not been paid as determined by AIA’s managing member. 71. AIA, RBPL, and Burke have breached the ROA by: a. failing to pay TCPA its prorata portion of the monthly draw due to AIA from NIA, or to the extent that AIA received its monthly draw from Midtown directly instead of through NIA, its prorata portion of that monthly draw; and b. failing to pay TCPA its portion of the bonus pool. 1472. As AJA’s manager or managing member and pursuant to ROA sections 1.9(n) and 3.1, Burke and/or RBPL have abused the discretion assigned to them under the ROA by failing to pay TCPA its portion of the bonus pool; not creating a bonus pool to avoid payment; and making improper self-payments of marketing fees and monthly draws to which RBPL and Burke were not entitled. 73. AIA, RBPL, and Burke’s breaches of the ROA have caused damages to TCPA. WHEREFORE, TCPA requests a judgment that awards damages, costs, and interest against ALA, RBPL, and Burke and any other relief that the Court deems just. Count VI Declaratory Judgment ~ TCPA Against RBPL and Burke 74. TCPA realleges paragraphs 1 through 33. 75. Pursuant to the non-competition covenant set forth in section 5.6 of the ROA, TCPA is restricted from working at any facility within fifteen (15) miles of any facility served by AIA for a period of two (2) years. 76. Because of AIA, Burke and/or RBPL’s breaches of its duties with TCPA, including but not limited to failure to pay owed compensation to TCPA, TCPA is excused from complying with the non-competition covenant. 77. TCPA asserts that, among other bases for the unenforceability of the non- competition covenant, AIA, Burke and/or RBPL have no legitimate business interest required to enforce such covenant and that enforcement of the covenant would be counter to public policy. 78. Acontroversy exists over TCPA’s rights and TCPA seeks a declaration that the non-competition covenant is unenforceable. 15WHEREFORE, TCPA requests a judgment that declares that the non-competition covenant in section 5.6 of the ROA is unenforceable. TCPA further requests an award of costs and any other relief that the Court deems just. WWPA’s COUNTERCLAIMS Count IX Breach of Contract - WWPA Against AIA 79. WWPA realleges paragraphs 1 through 33. 80. | WWPA had a contract with AIA to pay certain compensation to WWPA, the terms of which were memorialized in the Chart. 81. ATA materially breached its contract with WWPA by: a. failing to pay WWPA its compensation of approximately $37,000 for services performed in January 2008; b. failing to pay WWPA approximately $22,000 per month for November and December 2007, totaling $44,000; c. failing to reimburse $9,800 for his malpractice insurance premium; and d. failing to pay WWPA for its share of any overages that were owed to AJA by Midtown. 82. — AJA’s breaches have caused damages to WWPA. WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest against AIA and any other relief that the Court deems just. Count X Breach of Contract - WWPA 83. | WWPA realleges paragraphs 1 through 33. 1684. | WWPA had a Radiology Services Agreement (“RSA”) with AIA, a copy of which is attached as Exhibit 4. 85. | WWPA was promoted from an associate radiologist to a shareholder as of September 30, 2006. Pursuant to the RSA, upon becoming a shareholder, WWPA was entitled to the same compensation paid to other shareholders of AIA. 86. AJA did not begin paying WWPA compensation commensurate with the other shareholders as of September 30, 2006. Instead, AIA continued to pay WWPA its associate’s compensation rate until December 2006. 87. _ AJA’s failure to pay WWPA the shareholder’s compensation rate as of September 30, 2006 created a compensation shortfall of approximately $37,000. 88. AJA further failed to pay WWPA its shareholder’s share of AIA’s bonus pool paid to the other shareholders in or around year end 2006. 89. ATA materially breached its contract with WWPA by failing to pay WWPA compensation to which it was entitled. WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest against AIA and any other relief that the Court deems just. Count XI Breach of Contract — WWPA Against AIA, Burke and RBPL 90. | WWPA realleges paragraphs 1 through 33. 91. WWPA entered into the ROA with AIA, Burke and RBPL. 92. Section 5.5 of the ROA provides that WWPA is entitled to its share of “any technical revenues paid to and received by [AIA] or any Member on behalf of [AIA].” (Emphasis 7added). This means that WWPA is entitled to its share of any direct or indirect income flowing to AIA, Burke, RBPL, MTPA, or Midtown as a result of technical revenues or global fees for imaging services. 93. | WWPA has given notice of withdrawal of its membership in ALA and has not received its share of any direct or indirect income received by Burke, including technical revenues or global fees received by AIA, Burke, RBPL, MTPA, or Midtown. 94. AJA, Burke, and RBPL, therefore, have breached Section 5.5 of the ROA by failing to pay WWPA. 95. AIA, Burke, and RBPL’s breaches have caused damages to WWPA. WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest against AIA and any other relief that the Court deems just. Count XII Unjust Enrichment ~ WWPA Against ATA 96. WWPA tealleges paragraphs 1 through 33. 97. AIA has unjustly enriched itself to the detriment of WWPA by doing the following: a. failing to pay WWPA its compensation for January 2008 in the amount of approximately $37,000; b. failing to pay WWPA approximately $22,000 per month for November and December 2007, totaling $44,000; c. failing to pay WWPA approximately $37,000 by not paying WWPA at the shareholder’s compensation rate as of September 30, 2006; 18d. failing to pay WWPA its shareholder’s share of AIA’s bonus pool at year end 2006. , 98. It would be inequitable for AJA to retain the benefit conferred upon it by WWPA. 99. Asaresult of AIA’s unjust enrichment, WWPA has suffered damages. WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest against ALA and any other relief that the Court deems just. Count XM Breach of Statutory Duties Under Fla. Stat. Ch. 608 -- WWPA Against RBPL and Burke 100. WWPA realleges paragraphs 1 through 33. 101. In their capacities as managing member or manager of AJA, RBPL and/or Burke owed duties of loyalty, care, and good faith and fair dealing to WWPA. See Fla. Stat. §§ 608.4225 and 608.4226. 102. The ROA further extends to Burke individually all duties that apply to RBPL as a member: “All rights and obligations of any Member shal] also be binding upon its principal.” ROA, 1 1.9(0). 103. Burke and/or RBPL breached their duties of loyalty to WWPA by: a. failing to account to WWPA for the following: i. the profit and benefit that RBPL and Burke received by refusing to pay WWPA fair market value for its Radiology Services; ii. retaining profit and benefit from a disproportionate share of the revenues derived from Outside Reads; and iii. the portion of the technical revenues or global fees received by 19Burke, RBPL, MTPA, Midtown or any entity owned or controlled by. Burke. b. dealing with AIA on behalf of parties -- Midtown, MTPA, and Neuro- Imaging Associates, LLC -- that have interests adverse to AJA and/or compete with AIA. 104. RBPLand Burke breached their duty of care to WWPA by engaging in illegal or improper splitting of fees with Midtown and outside physicians that deprived WWPA of its share of profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional misconduct and knowing violations of the law. 105. All of the above allegations also violate a manager’s duty of good faith and fair dealing to act in WWPA’s best interests. 106. RBPL and Burke’s breaches of their duties have caused damages to WWPA. WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest against Burke and RBPL and any other relief that the Court deems just. Count XIV Breach of Fiduciary Duty Under ROA -- WWPA Against RBPL and Burke 107. WWPA realleges paragraphs 1 through 33. 108. The ROA broadens the otherwise limited statutory duties that RBPL and Burke, as AIA’s managing member or manager, owed to WWPA. Specifically, the ROA provides that “[t}he Managing Member shall be under a fiduciary duty to conduct the affairs of the Company at arm{’]s length and in the best interests of the Company and of the Members.” ROA, {3.1 109. The ROA further extends to Burke individually all duties that apply to RBPL as a 20member: “All rights and obligations of any Member shall also be binding upon its principal.” ROA, 11.9(0). 110. RBPL and Burke breached their fiduciary duties to conduct the affairs of AIA at arm(’]s length and in WWPA’s best interests by: a. failing to account to WWPA for the following: i. the profit and benefit that RBPL and Burke received by refusing to pay WWPA fair market value for its Radiology Services; ii. retaining profit and benefit from a disproportionate share of the revenues derived from Outside Reads; and iii. the portion of the technical revenues or global fees received by Burke, RBPL, MTPA, Midtown or any entity owned or controlled by Burke. b. dealing with AJA on behalf of parties -- Midtown, MTPA, and Neuro- Imaging Associates, LLC -- that have interests adverse to AIA and/or compete with AIA. 111. RBPL and Burke breached their duty of care to WWPA by engaging in illegal or improper splitting of fees with Midtown and outside physicians that deprived WWPA of its share of profits that it otherwise was due. These acts were grossly negligent, reckless, or intentional misconduct and knowing violations of the law. 112. All of the above allegations also violate RBPL and Burke’s fiduciary duties under the ROA to act at arm’s length with WWPA and to act in WWPA’s best interests. 113. RBPL and Burke’s breaches of their duties have caused damages to WWPA. 21WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest against Burke and RBPL and any other relief that the Court deems just. Count XV Breach of Contract - WWPA Against RBPL and Burke 114. WWPA realleges paragraphs 1 through 33. 115. WWPA withdrew as a member of AIA effective as of January 18, 2008. 116. Section 6.7 of the ROA provides, in pertinent part, that in the event that a member of AIA leaves the company for any reason, that member’s percentage interest shall be purchased for the sum of: a. such member’s prorata portion of the monthly draw due to AIA from Neuro-Imaging Associates, Inc. (“NIA”); and b. each member’s prorata portion of the bonus pool which has not been paid as determined by AIA’s managing member. 117. AJA, RBPL, and Burke have breached the ROA by: a. failing to pay WWPA its prorata portion of the monthly draw due to AIA from NIA, or to the extent that AIA received its monthly draw from Midtown directly instead of through NIA, its prorata portion of that monthly draw; and b. failing to pay WWPA its portion of the bonus pool. 118. As AIJA’s manager or managing member and pursuant to ROA sections 1.9(n) and 3.1, Burke and/or RBPL have abused the discretion assigned to them under the ROA by failing to pay WWPA its portion of the bonus pool; not creating a bonus pool to avoid payment; andimproper self-payments of marketing fees and monthly draws to which RBPL and Burke were not entitled. 119. AIA, RBPL, and Burke’s breaches of the ROA have caused damages to WWPA, WHEREFORE, WWPA requests a judgment that awards damages, costs, and interest against ALA, RBPL, and Burke and any other relief that the Court deems just. WWPA’s ANSWER TO THIRD-PARTY COMPLAINT 1. In response to paragraph 1, WWPA admits that this is a business litigation action, but denies the remaining allegations of paragraph 1. 2. In response to paragraph 2, WWPA admits the allegations. 3. In response to paragraph 3, WWPA admits the allegations. 4. In response to paragraph 4, WWPA admits the allegations for jurisdictional purposes only. 5. In response to paragraph 5, WWPA admits the allegations. 6. In response to paragraph 6, WWPA denies the allegations. 7. In response to paragraph 7, WWPA denies the allegations. Count I Breach of Fiduciary Duty to AIA 8. In response to paragraph 8, WWPA realleges its responses to paragraphs 1 through 7 above. 9. In response to paragraph 9, WWPA admits that it owed certain fiduciary duties to AIA. WWPA denies the remaining allegations of paragraph 9. 10. In response to paragraph 10, WWPA denies the allegations.11. In response to paragraph 11, WWPA denies the allegations. ; Count II ’ Breach of Fiduciary Duty to AIA 12. In response to paragraph 12, WWPA realleges its responses to paragraphs 1 through 7. 13. In response to paragraph 13, WWPA admits that it owed certain fiduciary duties to WWPA. WWPA denies the remaining allegations of paragraph 13. 14. — Inresponse to paragraph 14, WWPA denies the allegations. 15. In response to paragraph 15, WWPA denies the allegations. WHEREFORE, WWPA requests that judgment be entered in its favor on all of AIA’s claims, attorneys’ fees under Fla. Stat. § 57.105(7), costs, interest, and all other relief that the Court deems just or equitable. WWPA’S AFFIRMATIVE DEFENSES TO THIRD-PARTY COMPLAINT 1. As to Counts I and II, WWPA did not owe AIA a fiduciary duty for the matters on which AIA has sued WWPA. 2. As to Counts I and I, WWPA did not breach any duties of loyalty to AIA. 3. As to Counts I and II, AIA has failed to allege actions that meet the standards of liability set forth in Fla. Stat. Ch. 608 et seq. 4. As to Counts I and II, AIA is equitably estopped from bringing its claims against WWPA. AIA, through Burke, made representations to WWPA, including not limited to statements about the income he should expect to generate by joining AIA and becoming a member in ALA. WWPA relied upon these statements in joining AIA as an associate and member, 24including incurring moving expenses, selling his homes, and leaving the income of his prior Position based upon these representations. AJA also attempted to force WWPA to take positions that were flatly false to avoid being sued in this action. 5. As to Counts I and J, AIA has waived its claims against WWPA. 6. As to Counts I and IJ, AIA has no statutory or contractual basis to claim attorneys’ fees. But to the extent that such basis exists, WWPA claims it is entitled to attorneys’ fees under Fla. Stat. § 57.105(7). 7. As to Counts | and Ill, any liability of WWPA should be apportioned or reduced by the percentage of liability of the other members of AIA during the relevant time period. 8. As to Counts I and II, sections 1.9(i), 2.7, and 2.9 of the ROA preclude AlA’s claims. 9. As to Counts J and I], there is no claim against WWPA because AIA intentionally, willfully or wantonly caused or contributed to the damages that it claims. 10. As to Counts J and II, AIA’s claims are set off by its liabilities to WWPA. 11. ATA’s claims are barred by the economic loss rule. 12. | WWPA is entitled to arbitrate any claims asserted by AIA per the terms of the RSA. Jury DEMAND TCPA and WWPA demand a jury trial on all issues available.CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail to David W. Spicer, Esquire, Law Office of David W. Spicer, P.A., 11000 Prosperity Faims Road, Suite 104, Palm Beach Gardens, Florida 33410 on July 21, 2008. McCabe RaBIN, P.A. Attomeys for Teresa Maria Cortinas, MD., P.A. and Walter E. Wojcicki, M-D., Ph.D, P-A. 525 S. Flagler Drive, Suite 200 West Palm Beach, FL 33401 Tel: 561-659-7878 Fax: 561-659;7876 By: Mtttii1i1ttty Adam T. Rabin Fla. Bar No. 985635EXHIBIT |OPERATING AGREEMENT OF ADVANCED IMAGING ASSOCIATES, LLCTABLE OF CONTENTS ARTICLEI INTRODUCTION... 1.1. Formation of Limited Liabilit