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Filing # 39258550 E-Filed 03/21/2016 02:07:39 PM
IN THE CIRCUIT COURT OF THE
SEVENTEENTH JUDICIAL CIRCUIT
IN AND FOR BRO WARD COUNTY,
FLORIDA
CASE NO.: CACE15-021427
ONE AND ONE, LLC d/b/a COMPLETE
REHAB AND MEDICAL CENTER OF
HOLLYWOOD, ORTHOPEDIC & SPINE
CENTER OF SOUTH FLORIDA, LLC
d/b/a NEUROSURGICAL ASSOCIATES
OF SOUTH FLORIDA, ORTHOPEDIC &
SPINE CENTER OF SOUTH FLORIDA LLC,
and UNIVERSAL MED IQUIP, LLC,
Plaintiffs,
vs.
TODD CASH ALOFS d/b/a THE ALOFS LAW
FIRM, TODD CASH ALOFS, P.A., KAPLAN &
SCONZO, P.A., and DAVID GUNTER,
Defendants.
DEFENDANT, KAPLAN & SCONZO, P.A.’S MOTION TO DISMISS and
MOTION TO DISMISS OR TRANSFER VENUE
COMES NOW, the Defendant, KAPLAN & SCONZO, P.A., by and through its undersigned
attorney, and pursuant to Fla. Stat. § 1.420 hereby moves Court to Dismiss the counts in the action
pled against Defendant, KAPLAN & SCONZO, P.A., for the reasons set forth herein, and further
moves to dismiss the entire action so it may be filed in the proper venue, or in the alternative, moves
to have the entire action transferred to a more convenient forum pursuant to Fla. Stat. § 47.122. In
support thereof, Defendant, KAPLAN & SCONZO, P.A., states as follows:
Page | of 10
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 3/21/2016 2:07:40 PM.****1) The above styled action was initially filed against Defendants, TODD CASH ALOFS
d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A. and DAVID GUNTER, on or about
December 4, 2015. On or about January 14, 2016, Plaintiff filed a Notice of Dropping Party,
Defendant, DAVID GUNTER,
2) On or about January 15,2016, Defendants, TODD CASH ALOFS d/b/a THE ALOFS
LAW FIRM, TODD CASH ALOFS, P.A., filed a Motion to Dismiss or Transfer Venue in response
to the initial Complaint filed in this action.
3) On or about February 16, 2016, Plaintiff filed an Amended Complaint adding
Defendant, KAPLAN & SCONZO, P.A., to the action and renaming Defendant, DAVID GUNTER,
as a Defendant again.
4) Counts IV, V, VI, X, XI, XII, XXXII, XXXII, and XXXIV are the only counts of the
Amended Complaint pled against Defendant KAPLAN & SCONZO, P.A. Each of these counts fails
to state a cause of action against Defendant, KAPLAN & SCONZO, P.A., and should be dismissed
for the reasons set forth herein infra. Further, the action was filed in Broward county which is an
improper venue and, therefore, the action should be dismissed and filed in the proper venue.
5) Florida’s venue statute, Fla. Stat. § 47.011 states: “Actions shall be brought only in
the county where the defendant resides, where the cause of action accrued, or where the property in
litigation is located.”
6) Paragraph 8 of Plaintiff's Amended Complaint states “At all times material,
KAPLAN & SCONZO, P.A., was a Florida Corporation doing business, inter alia, in Palm Beach
County, Florida.” There are no allegations in the four corners of the Amended Complaint, that
Defendant, KAPLAN & SCONZO, P.A., has a corporate office in Broward county for transaction
Page 2 of 10of its customary business.
7) In Florida Gamco, Inc. v. Fontaine, 68 So.3d 923 (Fla. 4" DCA 2011) the court held:
“the trial court incorrectly found that venue was proper in Broward
because Florida Gamco was doing business in Broward County.
Section 47.051 provides, with regard to a domestic Florida
corporation, that venue is proper “in the county where such
corporation has, or usually keeps, an office for transaction of its
customary business.” This section distinguishes between Florida and
foreign corporations: “A Florida corporation resides where it has an
office for the transaction of its customary business,” while “[a]
foreign corporation doing business in Florida resides where it has an
agent or other representative.” 4/addin Ins. Agency, Inc. y. Jones, 687
So.2d 937,939 (Fla. 3d DCA 1997) (citations omitted). Here, the trial
court erred in finding that venue was proper because there are
sufficient allegations of doing business in Broward County. A
corporation in Florida “resides where it has an office for transaction
of its customary business. ‘Doing business’ is not the test.” /d.
(emphasis added) (citations omitted). See also U_ Haul Co. of N. Fla.,
Inc. v. Fuller, 417 So.2d 1102, 1103 (Fla, 4th DCA 1982) (“Doing
business in a county or having an agent in a county, without more, is
not a sufficient basis for venue in a suit against a domestic, as
opposed to a foreign, corporation.”). Here, it was undisputed that
Florida Gamco has its principal place of business in Leon County.
The trial court's finding that Florida Gamco conducted business in
Broward, and, as such, any breaches occurred in Broward, was an
improper basis for its ruling on venue. Under section 47.051, Leon is
the only proper place for venue.” /d at 929.
8) Likewise, with reference to Defendants, TODD CASH ALOFS d/b/a THE ALOFS
LAW FIRM, TODD CASH ALOFS, P.A., Plaintiff has alleged in paragraphs 6 and 7 of the
Amended Complaint that said corporate Defendants were doing business in “Palm Beach County”
and did not allege that said corporate Defendants had a corporate office in Broward county for
transaction of their customary business.
9) Further, with reference to individual Defendant, DAVID GUNTER, Plaintiff has
alleged in paragraph 9 of the Amended Complaint that Defendant, DAVID GUNTER, was a “Florida
Page 3 of 10resident, residing in Palm Beach County, Florida.” Again, there are no allegations in the four corners
of the Amended Complaint that Defendant, DAVID GUNTER, was a resident of Broward County.
10) Fla. Stat. § 47.021 states “Actions against two or more defendants residing in
different counties may be brought in any county in which any defendant resides.” Here, all
Defendants reside or have their corporate office in Palm Beach County. Accordingly, Broward is
an improper venue for this matter.
11) — A Motion to Dismiss or Transfer Venue was also filed by Co-Defendants, TODD
CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A., on January 27, 2016
due to the fact that Co-Defendants likewise do not reside nor have a corporate office in Broward
county.
12) Though Plaintiff makes the allegation in paragraph 10 of the Amended Complaint that
“Venue is proper in Broward County as the acts or omissions giving rise to the claims occurred in
Broward County,” other than this bare, unsupported assertion, there are no facts pled in the Amended
Complaint to support such, nor can Plaintiff allege any facts to support this bare assertion, as
Defendants committed no “acts or omissions” in Broward county whatsoever.
13) This matter should be dismissed as venue is improper in Broward County.
14) — Alternatively, Florida Statute § 47.122 provides that "for the convenience of the
parties or witnesses or in the interest of justice, any court of record may transfer any civil action to
any other court of record in which it might have been brought." Pep Boys v. Montilla, 62 So.3d
1162, 1165 (Fla. 4" DCA 2011) the Fourth District reversed the trial court for failing to transfer the
action for forum non conveniens and held: ““[T]here are three statutory factors a court considers in
determining whether to grant a motion pursuant to section 47.122:(1) the convenience of the parties;
Page 4 of 10(2) the convenience of the witnesses; and (3) the interest of justice.” The court continued: “Of the
three factors, “[t]he convenience of the witnesses is probably the single most important consideration
of the three statutory factors.” Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. Ist DCA 1983). The
plaintiff's forum selection is no longer the “factor of over-riding importance.” /d. at 1278.” Id at
1165.
15) If this court does not dismiss the above action for improper venue, then the matter
should be transferred to Palm Beach County based upon forum non conveniens grounds.
16) — In addition to the fact that this matter should be dismissed for improper venue, the
counts pled against Defendant, KAPLAN & SCONZO, P.A., should be dismissed for failure to state
a cause of action.
17) | With reference to Counts IV, V, and VI of the Amended Complaint, Plaintiffs attempt
to state a cause of action for what they title “Tortious Interference with Advantageous Business
Relationship.” However, Defendants fail to properly plead such a cause of action against Defendant,
KAPLAN & SCONZO, P.A.
18) 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
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).
19) — In Counts IV, V, and VI of the Amended Complaint, Plaintiffs fail to state that
Defendant, KAPLAN & SCONZO, P.A. had actual knowledge of any “business relationship”
between Defendant, GUNTER, and Plaintiffs. Instead, Plaintiffs plead “Defendant, KAPLAN &
Page 5 of 10SCONZO, P.A., knew or should have known of the business relationship...” Plaintiff must plead that
Defendant, KAPLAN & SCONZO, P.A., had actual knowledge, not merely that the “should have
known.” Further, Plaintiffs must plead that Defendant, KAPLAN & SCONZO, P.A., had actual
knowledge of the business relationship that Plaintiffs allege that Defendant, GUNTER, had with
Plaintiffs, namely a letter of protection. There are no allegations in the Amended Complaint that
Defendant, KAPLAN & SCONZO, P.A., had any knowledge of a letter of protection between
Plaintiffs and Defendant, GUNTER.
20) Further, with reference to Counts IV, V, and VI of the Amended Complaint, Plaintiffs
fail to plead any allegations of how Defendant, KAPLAN & SCONZO, P.A., “tortiously interfered”
with this supposed business relationship. Instead, Plaintiffs merely state the bare, unsupported
allegations that “Defendant, KAPLAN & SCONZO, P.A., intentionally interfered with the
relationship.” 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 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. 3" DCA 1993), citing Brown v. Gardens by the Sea South
Condominium Ass'n, 424 So.2d 181, 183 (Fla. 4th DCA 1983). Accordingly, Counts IV, V, and
VI of the Amended Complaint should be dismissed.
21) With reference to Counts X, XI, and XII of the Amended Complaint, Plaintiffs
Page 6 of 10attempt to state a cause of action for what they title “Negligence.” Each of these counts fails to state
of cause of action in “negligence.” Quite frankly, it is unknown what exactly Plaintiffs are
attempting to plead in counts X, XI, and XII as Plaintiffs plead some sort of improper hybrid of
negligence and breach of contract. Plaintiffs attempt to plead that Defendant, KAPLAN &
SCONZO, P.A., had a “duty to protect its [Plaintiff's] medical bills pursuant to a Letter of
Protection” and Defendant, KAPLAN & SCONZO, P.A., “breached this duty by failing to pay
GUNTER’s outstanding medical bills.” Plaintiffs fail to state under where this alleged “duty to
protect its [Plaintiff's] medical bills” arises other than stating it was “ pursuant to a Letter of
Protection.” If Defendant, KAPLAN & SCONZO, P.A., had a duty to “protect its [Plaintiffs]
medical bills pursuant to a Letter of Protection” then such duty would have arisen due to Defendant,
KAPLAN & SCONZO, having signed a letter of protection to Plaintiffs, which Plaintiffs have failed
to plead. Further, such would be a breach of contract, not “Negligence” as plead by Plaintiffs.
Likewise, if Plaintiffs intend to plead such a duty under a “Negligence” theory, there is no such duty
under Florida law. Accordingly, Counts X, XI, and XII of the Amended Complaint should be
dismissed.
22) With reference to Counts XXXII, XXXII, and XXXIV of the Amended Complaint,
Plaintiffs attempt to state a cause of action for what they title “Breach of Fiduciary Duty Owed by
KAPLAN & SCONZO, P.A.” Again, Plaintiffs fail to state a cause of action upon which relief can
be granted.
23) To state a claim for breach of fiduciary duty under Florida law, a plaintiff must
establish (1) that a fiduciary duty exists, (2) that the defendant breached this duty, and (3) that the
breach of this duty is the proximate cause of the plaintiffs damages. Gracey v. Eaker, 837 So.2d
Page 7 of 10348, 353 (Fla. 2002). Plaintiffs have failed to plead any facts to establish that Defendant, KAPLAN
& SCONZO, P.A., had any fiduciary duty to Plaintiffs. Plaintiffs solely plead the bare, unsupported
legal conclusion that Defendant, KAPLAN & SCONZO, P.A., owed Plaintiffs “an implied fiduciary
duty.” Here there are no facts pled to support an “implied fiduciary duty.”
24) “A fiduciary relationship which is implied in law is based on the specific factual
circumstances surrounding the transaction and the relationship of the parties and may be found when
confidence is reposed by one party and a trust accepted by the other.” First Nat. Bank and Trust Co.
of Treasurer Coast v. Pack, 789 So.2d411, 414 (Fla4" DCA 2001). “A fiduciary relationship exists
when one is under a duty to act, or give advice, for the benefit of another upon matters within the
scope of that relation. Doe v. Evans, 814 So.2d 370, 374 (Fla.2002). ‘An implied fiduciary
relationship will lie when there is a degree of dependency on one side and an undertaking on the
other side to protect and/or benefit the dependent party.” Masztal v. City of Miami, 971 So.2d 803,
809 (Fla. 3d DCA 2007). ‘A fiduciary relation may result from an offer of assistance where the
nature of the proposal is one that is naturally calculated to repose confidence and trust in the one
making the proposal. The relation and correlative duties need not be legal but may be moral, social,
domestic or merely personal.’ Harrell v. Branson, 344 So.2d 604, 607 (Fla. 1st DCA 1977).”
Crusselle v. Mong, 59 So.3d 1178, 1181 (Fla 5" DCA 2011).
25) In the case at hand Plaintiffs have failed to plead any factual allegations to support
any “offer of assistance...that is naturally calculated to repose confidence” by Defendant, KAPLAN
& SCONZO, P.A., on which Plaintiffs could have arguably relied. Plaintiffs have failed to plead any
facts to support any “undertaking” on the part of Defendant, KAPLAN & SCONZO, P.A. “To
benefit or protect” Plaintiffs. In fact, Plaintiffs have failed to plead any ultimate facts whatsoever
Page 8 of 10of any offers, or even communications, by Defendant, KAPLAN & SCONZO, P.A., on which
Plaintiffs could have reasonably relied to support an “implied fiduciary duty.” Accordingly, Counts
XXXII, XXXII, and XXXIV of the Amended Complaint should be dismissed.
WHEREFORE, Defendant, KAPLAN & SCONZO, P.A. respectfully requests that this
Honorable Court dismiss Plaintiff's Amended Complaint for improper venue, or, in the alternative,
transfer venue to Palm Beach County pursuant Fla. Stat. § 47.122, and dismiss Counts IV, V, VI, X,
XI, XI, XXXII, XXXII, and XXXIV of the Amended Complaint for failure to state a cause of
action, and grant such other relief that this Court feels is just.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to:
ANASTASIOS TOM SPYREDES , ESQUIRE, Spyredes Law Firm, P.A., Attorney for Plaintiffs,
(ServiceDocuments(@spylaw.net and monica@spylaw.net),4400 North Federal Highway, Suite 408,
Boca Raton, FL 33431, and SCOTT S. WARBURTON, ESQUIRE, Adams, Coogler, P.A.,
Attorneys for Defendants, Jupiter Outpatient Surgery Center and Jupiter Surgical Partner, Inc.)
(SWarburton@adamscoogler.com, chill@adamscoogler.com, bschultz@adamscoogler.com and
a(wadamscoogler.com), 1555 Palm Beach Lakes Blvd., Suite 1600, West Palm Beach, FL
wriver.
33401, via Electronic Delivery this 21“ day of March, 2016.
RICHARD K. SLINKMAN, ESQUIRE
SLINKMAN, SLINKMAN & WYNNE, P.A.
1015 W. Indiantown Road, Ste. 101A
Jupiter, FL 33458
Telephone: (561) 686-3400
Facsimile: (561) 686-5683
email: rich@sswlawfl.com
Page 9 of 10enne@sswlawfl.com
/'s J Richard Ko Hinkman
FB ye
RICHARD K. SLINKMAN, ESQ.
Florida Bar No.: 0058297
Page 10 of 10
Preview
Filing # 39258550 E-Filed 03/21/2016 02:07:39 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BRO WARD COUNTY, FLORIDA CASE NO.: CACE15-021427 ONE AND ONE, LLC d/b/a COMPLETE REHAB AND MEDICAL CENTER OF HOLLYWOOD, ORTHOPEDIC & SPINE CENTER OF SOUTH FLORIDA, LLC d/b/a NEUROSURGICAL ASSOCIATES OF SOUTH FLORIDA, ORTHOPEDIC & SPINE CENTER OF SOUTH FLORIDA LLC, and UNIVERSAL MED IQUIP, LLC, Plaintiffs, vs. TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A., KAPLAN & SCONZO, P.A., and DAVID GUNTER, Defendants. DEFENDANT, KAPLAN & SCONZO, P.A.’S MOTION TO DISMISS and MOTION TO DISMISS OR TRANSFER VENUE COMES NOW, the Defendant, KAPLAN & SCONZO, P.A., by and through its undersigned attorney, and pursuant to Fla. Stat. § 1.420 hereby moves Court to Dismiss the counts in the action pled against Defendant, KAPLAN & SCONZO, P.A., for the reasons set forth herein, and further moves to dismiss the entire action so it may be filed in the proper venue, or in the alternative, moves to have the entire action transferred to a more convenient forum pursuant to Fla. Stat. § 47.122. In support thereof, Defendant, KAPLAN & SCONZO, P.A., states as follows: Page | of 10 *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 3/21/2016 2:07:40 PM.****1) The above styled action was initially filed against Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A. and DAVID GUNTER, on or about December 4, 2015. On or about January 14, 2016, Plaintiff filed a Notice of Dropping Party, Defendant, DAVID GUNTER, 2) On or about January 15,2016, Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A., filed a Motion to Dismiss or Transfer Venue in response to the initial Complaint filed in this action. 3) On or about February 16, 2016, Plaintiff filed an Amended Complaint adding Defendant, KAPLAN & SCONZO, P.A., to the action and renaming Defendant, DAVID GUNTER, as a Defendant again. 4) Counts IV, V, VI, X, XI, XII, XXXII, XXXII, and XXXIV are the only counts of the Amended Complaint pled against Defendant KAPLAN & SCONZO, P.A. Each of these counts fails to state a cause of action against Defendant, KAPLAN & SCONZO, P.A., and should be dismissed for the reasons set forth herein infra. Further, the action was filed in Broward county which is an improper venue and, therefore, the action should be dismissed and filed in the proper venue. 5) Florida’s venue statute, Fla. Stat. § 47.011 states: “Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located.” 6) Paragraph 8 of Plaintiff's Amended Complaint states “At all times material, KAPLAN & SCONZO, P.A., was a Florida Corporation doing business, inter alia, in Palm Beach County, Florida.” There are no allegations in the four corners of the Amended Complaint, that Defendant, KAPLAN & SCONZO, P.A., has a corporate office in Broward county for transaction Page 2 of 10of its customary business. 7) In Florida Gamco, Inc. v. Fontaine, 68 So.3d 923 (Fla. 4" DCA 2011) the court held: “the trial court incorrectly found that venue was proper in Broward because Florida Gamco was doing business in Broward County. Section 47.051 provides, with regard to a domestic Florida corporation, that venue is proper “in the county where such corporation has, or usually keeps, an office for transaction of its customary business.” This section distinguishes between Florida and foreign corporations: “A Florida corporation resides where it has an office for the transaction of its customary business,” while “[a] foreign corporation doing business in Florida resides where it has an agent or other representative.” 4/addin Ins. Agency, Inc. y. Jones, 687 So.2d 937,939 (Fla. 3d DCA 1997) (citations omitted). Here, the trial court erred in finding that venue was proper because there are sufficient allegations of doing business in Broward County. A corporation in Florida “resides where it has an office for transaction of its customary business. ‘Doing business’ is not the test.” /d. (emphasis added) (citations omitted). See also U_ Haul Co. of N. Fla., Inc. v. Fuller, 417 So.2d 1102, 1103 (Fla, 4th DCA 1982) (“Doing business in a county or having an agent in a county, without more, is not a sufficient basis for venue in a suit against a domestic, as opposed to a foreign, corporation.”). Here, it was undisputed that Florida Gamco has its principal place of business in Leon County. The trial court's finding that Florida Gamco conducted business in Broward, and, as such, any breaches occurred in Broward, was an improper basis for its ruling on venue. Under section 47.051, Leon is the only proper place for venue.” /d at 929. 8) Likewise, with reference to Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A., Plaintiff has alleged in paragraphs 6 and 7 of the Amended Complaint that said corporate Defendants were doing business in “Palm Beach County” and did not allege that said corporate Defendants had a corporate office in Broward county for transaction of their customary business. 9) Further, with reference to individual Defendant, DAVID GUNTER, Plaintiff has alleged in paragraph 9 of the Amended Complaint that Defendant, DAVID GUNTER, was a “Florida Page 3 of 10resident, residing in Palm Beach County, Florida.” Again, there are no allegations in the four corners of the Amended Complaint that Defendant, DAVID GUNTER, was a resident of Broward County. 10) Fla. Stat. § 47.021 states “Actions against two or more defendants residing in different counties may be brought in any county in which any defendant resides.” Here, all Defendants reside or have their corporate office in Palm Beach County. Accordingly, Broward is an improper venue for this matter. 11) — A Motion to Dismiss or Transfer Venue was also filed by Co-Defendants, TODD CASH ALOFS d/b/a THE ALOFS LAW FIRM, TODD CASH ALOFS, P.A., on January 27, 2016 due to the fact that Co-Defendants likewise do not reside nor have a corporate office in Broward county. 12) Though Plaintiff makes the allegation in paragraph 10 of the Amended Complaint that “Venue is proper in Broward County as the acts or omissions giving rise to the claims occurred in Broward County,” other than this bare, unsupported assertion, there are no facts pled in the Amended Complaint to support such, nor can Plaintiff allege any facts to support this bare assertion, as Defendants committed no “acts or omissions” in Broward county whatsoever. 13) This matter should be dismissed as venue is improper in Broward County. 14) — Alternatively, Florida Statute § 47.122 provides that "for the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought." Pep Boys v. Montilla, 62 So.3d 1162, 1165 (Fla. 4" DCA 2011) the Fourth District reversed the trial court for failing to transfer the action for forum non conveniens and held: ““[T]here are three statutory factors a court considers in determining whether to grant a motion pursuant to section 47.122:(1) the convenience of the parties; Page 4 of 10(2) the convenience of the witnesses; and (3) the interest of justice.” The court continued: “Of the three factors, “[t]he convenience of the witnesses is probably the single most important consideration of the three statutory factors.” Hu v. Crockett, 426 So.2d 1275, 1279 (Fla. Ist DCA 1983). The plaintiff's forum selection is no longer the “factor of over-riding importance.” /d. at 1278.” Id at 1165. 15) If this court does not dismiss the above action for improper venue, then the matter should be transferred to Palm Beach County based upon forum non conveniens grounds. 16) — In addition to the fact that this matter should be dismissed for improper venue, the counts pled against Defendant, KAPLAN & SCONZO, P.A., should be dismissed for failure to state a cause of action. 17) | With reference to Counts IV, V, and VI of the Amended Complaint, Plaintiffs attempt to state a cause of action for what they title “Tortious Interference with Advantageous Business Relationship.” However, Defendants fail to properly plead such a cause of action against Defendant, KAPLAN & SCONZO, P.A. 18) 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 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). 19) — In Counts IV, V, and VI of the Amended Complaint, Plaintiffs fail to state that Defendant, KAPLAN & SCONZO, P.A. had actual knowledge of any “business relationship” between Defendant, GUNTER, and Plaintiffs. Instead, Plaintiffs plead “Defendant, KAPLAN & Page 5 of 10SCONZO, P.A., knew or should have known of the business relationship...” Plaintiff must plead that Defendant, KAPLAN & SCONZO, P.A., had actual knowledge, not merely that the “should have known.” Further, Plaintiffs must plead that Defendant, KAPLAN & SCONZO, P.A., had actual knowledge of the business relationship that Plaintiffs allege that Defendant, GUNTER, had with Plaintiffs, namely a letter of protection. There are no allegations in the Amended Complaint that Defendant, KAPLAN & SCONZO, P.A., had any knowledge of a letter of protection between Plaintiffs and Defendant, GUNTER. 20) Further, with reference to Counts IV, V, and VI of the Amended Complaint, Plaintiffs fail to plead any allegations of how Defendant, KAPLAN & SCONZO, P.A., “tortiously interfered” with this supposed business relationship. Instead, Plaintiffs merely state the bare, unsupported allegations that “Defendant, KAPLAN & SCONZO, P.A., intentionally interfered with the relationship.” 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 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. 3" DCA 1993), citing Brown v. Gardens by the Sea South Condominium Ass'n, 424 So.2d 181, 183 (Fla. 4th DCA 1983). Accordingly, Counts IV, V, and VI of the Amended Complaint should be dismissed. 21) With reference to Counts X, XI, and XII of the Amended Complaint, Plaintiffs Page 6 of 10attempt to state a cause of action for what they title “Negligence.” Each of these counts fails to state of cause of action in “negligence.” Quite frankly, it is unknown what exactly Plaintiffs are attempting to plead in counts X, XI, and XII as Plaintiffs plead some sort of improper hybrid of negligence and breach of contract. Plaintiffs attempt to plead that Defendant, KAPLAN & SCONZO, P.A., had a “duty to protect its [Plaintiff's] medical bills pursuant to a Letter of Protection” and Defendant, KAPLAN & SCONZO, P.A., “breached this duty by failing to pay GUNTER’s outstanding medical bills.” Plaintiffs fail to state under where this alleged “duty to protect its [Plaintiff's] medical bills” arises other than stating it was “ pursuant to a Letter of Protection.” If Defendant, KAPLAN & SCONZO, P.A., had a duty to “protect its [Plaintiffs] medical bills pursuant to a Letter of Protection” then such duty would have arisen due to Defendant, KAPLAN & SCONZO, having signed a letter of protection to Plaintiffs, which Plaintiffs have failed to plead. Further, such would be a breach of contract, not “Negligence” as plead by Plaintiffs. Likewise, if Plaintiffs intend to plead such a duty under a “Negligence” theory, there is no such duty under Florida law. Accordingly, Counts X, XI, and XII of the Amended Complaint should be dismissed. 22) With reference to Counts XXXII, XXXII, and XXXIV of the Amended Complaint, Plaintiffs attempt to state a cause of action for what they title “Breach of Fiduciary Duty Owed by KAPLAN & SCONZO, P.A.” Again, Plaintiffs fail to state a cause of action upon which relief can be granted. 23) To state a claim for breach of fiduciary duty under Florida law, a plaintiff must establish (1) that a fiduciary duty exists, (2) that the defendant breached this duty, and (3) that the breach of this duty is the proximate cause of the plaintiffs damages. Gracey v. Eaker, 837 So.2d Page 7 of 10348, 353 (Fla. 2002). Plaintiffs have failed to plead any facts to establish that Defendant, KAPLAN & SCONZO, P.A., had any fiduciary duty to Plaintiffs. Plaintiffs solely plead the bare, unsupported legal conclusion that Defendant, KAPLAN & SCONZO, P.A., owed Plaintiffs “an implied fiduciary duty.” Here there are no facts pled to support an “implied fiduciary duty.” 24) “A fiduciary relationship which is implied in law is based on the specific factual circumstances surrounding the transaction and the relationship of the parties and may be found when confidence is reposed by one party and a trust accepted by the other.” First Nat. Bank and Trust Co. of Treasurer Coast v. Pack, 789 So.2d411, 414 (Fla4" DCA 2001). “A fiduciary relationship exists when one is under a duty to act, or give advice, for the benefit of another upon matters within the scope of that relation. Doe v. Evans, 814 So.2d 370, 374 (Fla.2002). ‘An implied fiduciary relationship will lie when there is a degree of dependency on one side and an undertaking on the other side to protect and/or benefit the dependent party.” Masztal v. City of Miami, 971 So.2d 803, 809 (Fla. 3d DCA 2007). ‘A fiduciary relation may result from an offer of assistance where the nature of the proposal is one that is naturally calculated to repose confidence and trust in the one making the proposal. The relation and correlative duties need not be legal but may be moral, social, domestic or merely personal.’ Harrell v. Branson, 344 So.2d 604, 607 (Fla. 1st DCA 1977).” Crusselle v. Mong, 59 So.3d 1178, 1181 (Fla 5" DCA 2011). 25) In the case at hand Plaintiffs have failed to plead any factual allegations to support any “offer of assistance...that is naturally calculated to repose confidence” by Defendant, KAPLAN & SCONZO, P.A., on which Plaintiffs could have arguably relied. Plaintiffs have failed to plead any facts to support any “undertaking” on the part of Defendant, KAPLAN & SCONZO, P.A. “To benefit or protect” Plaintiffs. In fact, Plaintiffs have failed to plead any ultimate facts whatsoever Page 8 of 10of any offers, or even communications, by Defendant, KAPLAN & SCONZO, P.A., on which Plaintiffs could have reasonably relied to support an “implied fiduciary duty.” Accordingly, Counts XXXII, XXXII, and XXXIV of the Amended Complaint should be dismissed. WHEREFORE, Defendant, KAPLAN & SCONZO, P.A. respectfully requests that this Honorable Court dismiss Plaintiff's Amended Complaint for improper venue, or, in the alternative, transfer venue to Palm Beach County pursuant Fla. Stat. § 47.122, and dismiss Counts IV, V, VI, X, XI, XI, XXXII, XXXII, and XXXIV of the Amended Complaint for failure to state a cause of action, and grant such other relief that this Court feels is just. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to: ANASTASIOS TOM SPYREDES , ESQUIRE, Spyredes Law Firm, P.A., Attorney for Plaintiffs, (ServiceDocuments(@spylaw.net and monica@spylaw.net),4400 North Federal Highway, Suite 408, Boca Raton, FL 33431, and SCOTT S. WARBURTON, ESQUIRE, Adams, Coogler, P.A., Attorneys for Defendants, Jupiter Outpatient Surgery Center and Jupiter Surgical Partner, Inc.) (SWarburton@adamscoogler.com, chill@adamscoogler.com, bschultz@adamscoogler.com and a(wadamscoogler.com), 1555 Palm Beach Lakes Blvd., Suite 1600, West Palm Beach, FL wriver. 33401, via Electronic Delivery this 21“ day of March, 2016. RICHARD K. SLINKMAN, ESQUIRE SLINKMAN, SLINKMAN & WYNNE, P.A. 1015 W. Indiantown Road, Ste. 101A Jupiter, FL 33458 Telephone: (561) 686-3400 Facsimile: (561) 686-5683 email: rich@sswlawfl.com Page 9 of 10enne@sswlawfl.com /'s J Richard Ko Hinkman FB ye RICHARD K. SLINKMAN, ESQ. Florida Bar No.: 0058297 Page 10 of 10