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Filing # 42205358 E-Filed 06/01/2016 04:10:50 PM
IN THE CIRCUIT COURT OF THE 17th
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
Case No. CACE15-021427
TWO AND TWO, LLC d/b/a COMPLETE
REHAB AND MEDICAL CENTER OF
HOLLYWOOD, TWO AND TWO, LLC
d/b/a COMPLETE REHAB AND
MEDICAL CENTER OF DEERFIELD,
ORTHOPEDIC AND SPINE CENTER OF
SOUTH FLORIDA d/b/a
NEUROSURGICAL ASSOCIATES OF
SOUTH FLORIDA, ORTHOPEDIC AND
SPINE CENTER OF SOUTH FLORIDA,
LLC, and UNIVERSAL MEDIQUIP, LLC.,,
Plaintiff,
Vv.
TODD CASH ALOFS d/b/a THE ALOFS
LAW FIRM, TODD CASH ALOFS, P.A.,
KAPLAN & SCONZO, P.A., and DAVID
GUNTER,,
Defendant.
/
DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS
SECOND AMENDED COMPLAINT
COMES NOW, the Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and
TODD CASH ALOFS, P.A., by and through its undersigned attorney, and pursuant to Fla, Stat. § 1.420
hereby moves Court to Dismiss Counts I, II, and III of Plaintiff's Second Amended Complaint as pled
against Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH
ALOFS, P.A., for the reasons set forth herein. In support thereof, Defendants, TODD CASH ALOFS
d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., states as follows:
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 6/1/2016 4:10:48 PM.****lL. On or about February 16, 2016, Plaintiffs filed an Amended Complaint adding
Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS,
P.A., as a Defendant to the action. On March 21, 2016, Defendants, TODD CASH ALOFS d/b/a
THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., filed a Motion to Dismiss the counts
pled against TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS,
P.A. titled “Tortious Interference with Advantageous Business Relationship”; “Negligence”; and
“Breach of Fiduciary Duty.”
2. On April 21, 2016, Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW
FIRM, and TODD CASH ALOFS, P.A.’s, Motion to Dismiss was heard by this court and this court
dismissed the “Tortious Interference with Advantageous Business Relationship” counts, and gave the
Plaintiffs twenty (20) days to amend.’
3. On May 11, 2016, Plaintiffs served their Second Amended Complaint wherein they
re-pled the “Tortious Interference with Advantageous Business Relationship” counts. However,
Plaintiffs have once again failed to state a cause of action for “Tortious Interference with
Advantageous Business Relationship” and said counts should be dismissed for the same reasons
such counts were previously dismissed from the Amended Complaint.
4. Under Florida law, the elements of tortious interference are: (1) the existence of a
business relationship, even if not evinced in a formal written agreement; (2) that the defendant knew
'The court permitted the counts pled for “Negligence”; and “Breach of Fiduciary Duty” to stand despite the fact that
Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., had no
knowledge of any “letters or protection” between Plaintiffs and GUNTER; despite the fact that Defendant, never
signed any “letters of protection” to any of the Plaintiffs; despite the fact that Defendant, TODD CASH ALOFS
d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., never made any representations of gave any
assurances to any of the Plaintiffs with reference to any of Plaintiffs’ outstanding medical balances; and despite the
fact that there is no common law legal duty for Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM,
and TODD CASH ALOFS, P.A,, to withhold any settlement funds from its client, GUNTER, and pay such to a third
party (namely the Plaintiffs) when Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD
CASH ALOFS, P.A., had no contract with Plaintiffs to do so, nor made any assurances to Plaintiffs that it would do
so, Without a contractual obligation to withhold such funds, Defendant, TODD CASH ALOFS d/b/a THE ALOFS
LAW FIRM, and TODD CASH ALOFS, P.A., was required to disburse all funds to its client, GUNTER, upon
demand from GUNTER to do so. To do otherwise, Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW
FIRM, and TODD CASH ALOFS, P.A., would be breaching its legal and ethical duties to its client, GUNTER.of the relationship; (3) the defendant intentionally and unjustifiedly interfered with the relationship; and
(4) damage to the plaintiff as a result of the breach of the relationship. Ethan Allen, Inc. v. Georgetown
Manor, Inc., 647 So.2d 812, 814 (Fla.1994). (Emphasis supplied.)
5. In Counts I, II, and IIT of the Second Amended Complaint, Plaintiffs fail to state that
Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS,
P.A., had actual knowledge of any “business relationship” between Defendant, GUNTER, and
Plaintiffs as is required. Instead, Plaintiffs plead “Defendants, TODD CASH ALOFS d/b/a THE
ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., knew or should have known of the business
relationship...” Plaintiff must plead that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW
FIRM, and TODD CASH ALOFS, P.A., had actual knowledge, not merely that they “should have
known” as pled by Plaintiffs. See: Ethan Allen, Inc. v. Georgetown Manor, Inc., supra.
6. The alleged “business relationship” that Plaintiff's alleged Defendants “knew or should
have known of” are “letters of protection” that Plaintiffs claim that Defendant, GUNTER, signed. There
are no allegations pled in the Second Amended Complaint that Defendants, TODD CASH ALOFS
d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., had any knowledge of these
“letters of protection.” It is axiomatic that, in order for Defendants, TODD CASH ALOFS d/b/a THE
ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., to be able to “intentionally and unjustifiably
interfere” with the alleged “business relationship,” Defendants, TODD CASH ALOFS d/b/a THE
ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., would have to have knowledge of such. How
can Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS,
P.A., possibly “intentionally and unjustifiably interfere” with the alleged “business relationship” if
TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A. did not
have actual knowledge of such?7. Further, with reference to Counts I, II, and III of the Second Amended Complaint,
Plaintiffs fail to plead any allegations of how Defendants, TODD CASH ALOFS d/b/a THE ALOFS
LAW FIRM, and TODD CASH ALOFS, P.A., “intentionally and unjustifiably interfered” with this
alleged business relationship and there are no facts pled to alleged that Defendants, TODD CASH
ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., did anything to
“intentionally and unjustifiably interfere” with GUNTER’S obligation to pay Plaintiffs. In fact, there are
no facts pled demonstrating that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM,
and TODD CASH ALOFS, P.A., took any actions whatsoever to, in any way, prevent Defendant,
GUNTER, from paying Plaintiffs or otherwise honor his [GUNTER’ S] obligations to Plaintiffs. Instead,
Plaintiffs merely state the bare, unsupported allegation that “Defendants, TODD CASH ALOFS d/b/a
THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., intentionally and/or unjustifiably
interfered with the relationship and/or contract.” There are no facts pled to support this bare allegation.
The only facts pled are that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and
TODD CASH ALOFS, P.A., paid the settlement funds from the underlying injury action to other
persons or entities. This does not amount to actions necessary to “intentionally and unjustifiably
interfere” with GUNTER’S obligation to pay Plaintiffs so that it may support a claim for “Tortious
Interference with an Advantageous Business Relationship.”
8. While Florida has adopted the more liberal “notice pleading” requirements, Plaintiffs
are still charged with the duty to plead the ultimate facts to support the claims they bring and not simply
state bare, unsupported legal conclusions as the Plaintiffs have done in the Second Amended Complaint.
“Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that
the claims and ultimate facts supporting same must be alleged. The reason for the rule is to appraise [sic]
the other party of the nature of the contentions that he will be called upon to meet, and to enable the court
to decide whether same are sufficient.” Rios v, McDermott, Will & Emery, 613 So.2d 544, 545 (Fla. 3DCA 1993), citing Brown v. Gardens by the Sea South Condominium Ass'n, 424 So.2d 181, 183 (Fla.
4th DCA 1983). Accordingly, Counts I, I, and Ill of the Second Amended Complaint should be
dismissed.
WHEREFORE, Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and
TODD CASH ALOFS, P.A., respectfully requests that this Honorable Court dismiss Counts I, II, and
II] in Plaintiff's Second Amended Complaint for failure to state a cause of action, and grant such other
relief that this Court feels is just and proper.
I HEREBY CERTIFY that a copy of the foregoing has been furnished by e-service, this
E
S
7 day of June, 2016, to the following: Anastasios Tom Spyredes, Spyredes Law Firm,
P.A., 4400 North Federal Highway, Suite 408, Boca Raton, FL 33431,
ServiceDocuments@spylaw.net;monica@spylaw.net;Tom@spylaw.net; Richard K. Slinkman,
Esquire, Slinkman & Slinkman, P.A., 1015 W. Indiantown Road Suite 101A, Jupiter, FL 33458,
rich@sswlawfl.com;jennie@sswlawfl.com.
ADAMS | COOGLER, P.A.
1555 Palm Beach Lakes Blvd., Suite 1600
West Palm Beach, FL 33401-2329
Telephone: (561) 478-4500
Facsimile: (561) 478-7847
E-Mail Address:
SWarburton@adamscoogler.com and
wrivera@adamscoogler.com
Florida Bar No.: 867268
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Filing # 42205358 E-Filed 06/01/2016 04:10:50 PM IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA Case No. CACE15-021427 TWO AND TWO, LLC d/b/a COMPLETE REHAB AND MEDICAL CENTER OF HOLLYWOOD, TWO AND TWO, LLC d/b/a COMPLETE REHAB AND MEDICAL CENTER OF DEERFIELD, ORTHOPEDIC AND SPINE CENTER OF SOUTH FLORIDA d/b/a NEUROSURGICAL ASSOCIATES OF SOUTH FLORIDA, ORTHOPEDIC AND SPINE CENTER OF SOUTH FLORIDA, LLC, and UNIVERSAL MEDIQUIP, LLC.,, Plaintiff, Vv. TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A., KAPLAN & SCONZO, P.A., and DAVID GUNTER,, Defendant. / DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT COMES NOW, the Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., by and through its undersigned attorney, and pursuant to Fla, Stat. § 1.420 hereby moves Court to Dismiss Counts I, II, and III of Plaintiff's Second Amended Complaint as pled against Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., for the reasons set forth herein. In support thereof, Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., states as follows: *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 6/1/2016 4:10:48 PM.****lL. On or about February 16, 2016, Plaintiffs filed an Amended Complaint adding Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., as a Defendant to the action. On March 21, 2016, Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., filed a Motion to Dismiss the counts pled against TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A. titled “Tortious Interference with Advantageous Business Relationship”; “Negligence”; and “Breach of Fiduciary Duty.” 2. On April 21, 2016, Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A.’s, Motion to Dismiss was heard by this court and this court dismissed the “Tortious Interference with Advantageous Business Relationship” counts, and gave the Plaintiffs twenty (20) days to amend.’ 3. On May 11, 2016, Plaintiffs served their Second Amended Complaint wherein they re-pled the “Tortious Interference with Advantageous Business Relationship” counts. However, Plaintiffs have once again failed to state a cause of action for “Tortious Interference with Advantageous Business Relationship” and said counts should be dismissed for the same reasons such counts were previously dismissed from the Amended Complaint. 4. Under Florida law, the elements of tortious interference are: (1) the existence of a business relationship, even if not evinced in a formal written agreement; (2) that the defendant knew 'The court permitted the counts pled for “Negligence”; and “Breach of Fiduciary Duty” to stand despite the fact that Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., had no knowledge of any “letters or protection” between Plaintiffs and GUNTER; despite the fact that Defendant, never signed any “letters of protection” to any of the Plaintiffs; despite the fact that Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., never made any representations of gave any assurances to any of the Plaintiffs with reference to any of Plaintiffs’ outstanding medical balances; and despite the fact that there is no common law legal duty for Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A,, to withhold any settlement funds from its client, GUNTER, and pay such to a third party (namely the Plaintiffs) when Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., had no contract with Plaintiffs to do so, nor made any assurances to Plaintiffs that it would do so, Without a contractual obligation to withhold such funds, Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., was required to disburse all funds to its client, GUNTER, upon demand from GUNTER to do so. To do otherwise, Defendant, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., would be breaching its legal and ethical duties to its client, GUNTER.of the relationship; (3) the defendant intentionally and unjustifiedly interfered with the relationship; and (4) damage to the plaintiff as a result of the breach of the relationship. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 814 (Fla.1994). (Emphasis supplied.) 5. In Counts I, II, and IIT of the Second Amended Complaint, Plaintiffs fail to state that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., had actual knowledge of any “business relationship” between Defendant, GUNTER, and Plaintiffs as is required. Instead, Plaintiffs plead “Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., knew or should have known of the business relationship...” Plaintiff must plead that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., had actual knowledge, not merely that they “should have known” as pled by Plaintiffs. See: Ethan Allen, Inc. v. Georgetown Manor, Inc., supra. 6. The alleged “business relationship” that Plaintiff's alleged Defendants “knew or should have known of” are “letters of protection” that Plaintiffs claim that Defendant, GUNTER, signed. There are no allegations pled in the Second Amended Complaint that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., had any knowledge of these “letters of protection.” It is axiomatic that, in order for Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., to be able to “intentionally and unjustifiably interfere” with the alleged “business relationship,” Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., would have to have knowledge of such. How can Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., possibly “intentionally and unjustifiably interfere” with the alleged “business relationship” if TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A. did not have actual knowledge of such?7. Further, with reference to Counts I, II, and III of the Second Amended Complaint, Plaintiffs fail to plead any allegations of how Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., “intentionally and unjustifiably interfered” with this alleged business relationship and there are no facts pled to alleged that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., did anything to “intentionally and unjustifiably interfere” with GUNTER’S obligation to pay Plaintiffs. In fact, there are no facts pled demonstrating that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., took any actions whatsoever to, in any way, prevent Defendant, GUNTER, from paying Plaintiffs or otherwise honor his [GUNTER’ S] obligations to Plaintiffs. Instead, Plaintiffs merely state the bare, unsupported allegation that “Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., intentionally and/or unjustifiably interfered with the relationship and/or contract.” There are no facts pled to support this bare allegation. The only facts pled are that Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., paid the settlement funds from the underlying injury action to other persons or entities. This does not amount to actions necessary to “intentionally and unjustifiably interfere” with GUNTER’S obligation to pay Plaintiffs so that it may support a claim for “Tortious Interference with an Advantageous Business Relationship.” 8. While Florida has adopted the more liberal “notice pleading” requirements, Plaintiffs are still charged with the duty to plead the ultimate facts to support the claims they bring and not simply state bare, unsupported legal conclusions as the Plaintiffs have done in the Second Amended Complaint. “Florida uses what is commonly considered as a notice pleading concept and it is a fundamental rule that the claims and ultimate facts supporting same must be alleged. The reason for the rule is to appraise [sic] the other party of the nature of the contentions that he will be called upon to meet, and to enable the court to decide whether same are sufficient.” Rios v, McDermott, Will & Emery, 613 So.2d 544, 545 (Fla. 3DCA 1993), citing Brown v. Gardens by the Sea South Condominium Ass'n, 424 So.2d 181, 183 (Fla. 4th DCA 1983). Accordingly, Counts I, I, and Ill of the Second Amended Complaint should be dismissed. WHEREFORE, Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, and TODD CASH ALOFS, P.A., respectfully requests that this Honorable Court dismiss Counts I, II, and II] in Plaintiff's Second Amended Complaint for failure to state a cause of action, and grant such other relief that this Court feels is just and proper. I HEREBY CERTIFY that a copy of the foregoing has been furnished by e-service, this E S 7 day of June, 2016, to the following: Anastasios Tom Spyredes, Spyredes Law Firm, P.A., 4400 North Federal Highway, Suite 408, Boca Raton, FL 33431, ServiceDocuments@spylaw.net;monica@spylaw.net;Tom@spylaw.net; Richard K. Slinkman, Esquire, Slinkman & Slinkman, P.A., 1015 W. Indiantown Road Suite 101A, Jupiter, FL 33458, rich@sswlawfl.com;jennie@sswlawfl.com. ADAMS | COOGLER, P.A. 1555 Palm Beach Lakes Blvd., Suite 1600 West Palm Beach, FL 33401-2329 Telephone: (561) 478-4500 Facsimile: (561) 478-7847 E-Mail Address: SWarburton@adamscoogler.com and wrivera@adamscoogler.com Florida Bar No.: 867268