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Filing # 60763227 E-Filed 08/22/2017 06:19:11 PM
IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-14-001087 (04)
PLANET T UNIFORMS, INC.,
Plaintiff,
Vv.
FLORIDA CHARTER FOUNDATION, INC.
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL, DISCOVERY SCHOOLS, INC.,
iUNIFORMS, INC., RICHARD SHELLOW, JON
THOMAS ROGERS, AND SCOTT SZNITKEN,
Defendants.
FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL,
Counter-Plaintiff,
v.
PLANET T UNIFORMS, INC.,
Counter-Defendant.
aeneeeenent
ANSWER AND AFFIRMATIVE DEFENSES OF
JON THOMAS ROGERS TO THIRD AMENDED COMPLAINT!
The Defendant, JON THOMAS ROGERS (“ROGERS”), by and through
undersigned counsel hereby files and serves his Answer and Affirmative Defenses to the
Third Amended Complaint and in support thereof submits as follows:
1. ROGERS admits that the Plaintiff has attempted to assert a claim for
damages. ROGERS denies that that the Plaintiff has successfully done so and therefore
denies the allegations contained in paragraph lof the Second Amended Complaint.
Any allegation, or part thereof, not specifically admitted is denied.
FUERs? FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COM
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 8/22/2017 6:19:11 PM.****CASE NO.: CACE-14-001087 (04)
2. ROGERS is without knowledge as to the allegations contained in paragraph
2 of the Second Amended Complaint and therefore denies the same and demands strict
proof thereof.
3. ROGERS admits the allegations contained in paragraph 3 of the Second
Amended Complaint.
4. ROGERS admits the allegations contained in paragraph 4 of the Second
Amended Complaint.
5. ROGERS is without knowledge as to the allegations contained in paragraph
5 of the Second Amended Complaint and therefore denies the same and demands strict
proof thereof.
6. ROGERS is without knowledge as to the allegations contained in paragraph
6 of the Second Amended Complaint and therefore denies the same and demands strict
proof thereof.
7. ROGERS admits the allegations contained in paragraph 7 of the Second
Amended Complaint.
8. ROGERS admits the allegations contained in paragraph 8 of the Second
Amended Complaint.
9. The allegations contained in paragraph 9 are admitted only for purpose of
venue.
10. | ROGERS denies the allegations contained in paragraph 10 of the Second
Amended Complaint.
>
FUrRs? FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
GENERAL ALLEGATIONS
11. ROGERS admits that Planet T is a corporation. ROGERS is without
knowledge as to the remaining allegations contained in paragraph 11 and therefore
denies the same.
12. ROGERS admits the Franklin Academy operates a charter school in
Broward County, Florida.
13. | ROGERS admits that Discovery Schools provides services to Franklin based
upon a written agreement between them.
14. | ROGERS admits that iUniforms sells school uniforms.
15. | ROGERS admits that he is the CEO of Discovery Schools. ROGERS further
admits that he is an agent of Franklin.
16. ROGERS admits that Sznitken is a director of Florida Charter Foundation
and that Florida Charter Foundation does business as Franklin Academy Charter School.
17. | ROGERS admits that Franklin was contacted by Plaintiff and that Plaintiff
submitted a proposal to sell certain school uniforms to the parents of students at Franklin
Academy. ROGERS denies the remaining allegations contained in paragraph 17 of the
Second Amended Complaint.
18. | ROGERS denies the allegations contained in paragraph 18 of the Second
Amended Complaint.
19. | ROGERS is without knowledge as to the allegations contained in paragraph
19 of the Second Amended Complaint and therefore denies the same and demands strict
proof thereof.
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FUrRs? FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
20. | ROGERS is without knowledge as to the allegations contained in paragraph
20 of the Second Amended Complaint and therefore denies the same and demands strict
proof thereof.
21. | ROGERS denies the allegations contained in paragraph 21 of the Second
Amended Complaint.
22. | ROGERS admits that Plaintiff was authorized to sell uniforms to Franklin’s
students for the 2011-2012 school year and did so. ROGERS is without knowledge as to
Planet T’s intentions or desires.
23. | ROGERS admits that a proposal was submitted by Planet T by which Planet
T proposed to be licensed by Franklin to sell clothing to the parents of students who
attended Franklin Academy. ROGERS denies that the proposal was acceptable or that
anyone on behalf of Planet T agreed to its terms. ROGERS admits that Planet T sold
uniforms to parents of Franklin’s students. ROGERS denies the remaining allegations
contained in paragraph 23 of the Second Amended Complaint.
24, | ROGERS admits that he, on behalf of Franklin rejected the agreement
proposed by Planet T.
25. | ROGERS admits that Planet T sought meetings with Franklin regarding its
proposal. ROGERS denies that Franklin “delayed” meeting with Planet T. ROGERS
denies that anyone acting on behalf of Franklin indicated in any way that the Planet T
proposal was acceptable or that it would be accepted. ROGERS denies the remaining
allegations contained in paragraph 25 of the Second Amended Complaint.
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Fuerst FrruiMan DAVID & JosPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
26. ROGERS admits that the Planet T proposal was not accepted in May of
2011. ROGERS denies the remaining allegations contained in paragraph 26 of the Second
Amended Complaint.
27. ROGERS admits that Franklin did not execute the Plaintiffs proposed
agreement as the same had been rejected by Rogers previously. ROGERS denies the
remaining allegations contained in paragraph 27 of the Second Amended Complaint.
28. | ROGERS denies the allegations contained in paragraph 28 of the Second
Amended Complaint.
29. | ROGERS admits that Planet T sought additional meetings regarding its
proposal. ROGERS denies the remaining allegations contained in paragraph 29 of the
Second Amended Complaint.
30. | ROGERS denies the allegations contained in paragraph 30 of the Second
Amended Complaint.
31. | ROGERS denies that he or Franklin was provided any “privileged sales or
margin information.” ROGERS is without knowledge as to the state of mind of Planet T
at the time. ROGERS denies the remaining allegations contained in paragraph 31 of the
Second Amended Complaint.
32. | ROGERS denies the allegations contained in paragraph 32 of the Second
Amended Complaint.
33. | ROGERS admits that Franklin had no need to meet with Planet T because
no agreement was reached and Planet T’s proposals had not been accepted. ROGERS
admits that in or about March of 2012 Planet T contacted Franklin and requested to
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FUrRS? FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
discuss a proposal for Planet T to act as uniform supplier for the upcoming school year.
ROGERS denies that an agreement was reached at that time. The remaining allegations
contained in paragraph 33 of the Second Amended Complaint denied.
34. | ROGERS is without knowledge as to the allegations contained in paragraph
34 of the Second Amended Complaint. ROGERS states that no vendor was awarded the
right to sell uniforms to Franklin’s students as of January of 2012 for the 2012-2013 school
year.
35. | ROGERS denies the allegations contained in paragraph 35 of the Second
Amended Complaint.
36. | ROGERS denies the allegations contained in paragraph 36 of the Second
Amended Complaint.
37. | ROGERS does not believe that a meeting occurred in September of 2012
with Planet T. ROGERS denies the remaining allegations contained in paragraph 37 of
the Second Amended Complaint.
38. | ROGERS admits that Mr. Sznitken contacted Planet T to set up a visit to
Planet T’s store. ROGERS denies the remaining allegations contained in paragraph 38 of
the Second Amended Complaint.
39. | ROGERS admits that Mr. Sznitken is an agent and employee of Franklin
with the title of “Director.” ROGERS further admits that Mr. Sznitken’s duties involve
contact with entities seeking to enter into agreements with Franklin. ROGERS denies the
remaining allegations contained in paragraph 39 of the Second Amended Complaint.
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FUrRs? FrruiMan DAVID & JosPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
40. ROGERS denies the allegations contained in paragraph 40 of the
Complaint.
41. | ROGERS admits that Planet T requested a meeting. ROGERS denies that it
committed to any course of action.
42. | ROGERS admits that Franklin requested sales information from Planet T so
that it could determine, among other things, how much money Planet T owed to Franklin.
The remaining allegations contained in paragraph 42 are denied.
43. | ROGERS denies the allegations contained in paragraph 43 of the Second
Amended Complaint.
44. | ROGERS admits that Franklin requested certain items that the Plaintiff sold
to Franklin’s students. ROGERS denies the remaining allegations contained in paragraph
44 of the Second Amended Complaint.
45. | ROGERS admits that after Planet T provided representative samples of the
items it had sold to parents of students of Franklin Academy that Franklin paid $2,913.40
Planet T to satisfy Plaintiffs invoice #1109753 for the purchased items.
46. | ROGERS admits that Franklin advised Plaintiff orally on or about January
24, 2013 that it would not allow Planet T to sell items displaying Franklin’s protected logo
after March 31, 2013. ROGERS denies the remaining allegations contained in paragraph
46 of the Second Amended Complaint.
47. | ROGERS denies the allegations contained in paragraph 47 of the Second
Amended Complaint.
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FUERS? FrruiMaN DAVID & JosPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
48. | ROGERS denies the allegations contained in paragraph 48 of the Second
Amended Complaint.
49. | ROGERS denies the allegations contained in paragraph 49 of the Second
Amended Complaint.
50. | ROGERS denies that Franklin agreed to sign the contract submitted to it by
the Plaintiff or that Franklin agreed to the terms offered by the Plaintiff. Furthermore,
ROGERS denies that the Plaintiff performed adequately. ROGERS denies the remaining
allegations contained in paragraph 50 of the Second Amended Complaint.
51. | ROGERS is without knowledge as to what items or inventory the Plaintiff
ordered or its state of mind when doing so. ROGERS denies the remaining allegations
contained in paragraph 51 of the Second Amended Complaint.
52. | ROGERS admits that Franklin notified Plaintiff that it could not sell product
displaying Franklin’s protected logos after March 31, 2103. ROGERS admits that Franklin
was under no obligation to guarantee the alleged purchases and that Franklin refused to
do so. ROGERS is without knowledge as to the remaining allegations contained in
paragraph 52 of the Second Amended Complaint and therefore denies the same and
demands strict proof thereof.
53. | ROGERS admits that Planet T was not authorized to sell products
displaying Franklin’s protected logos after March 31, 2013. ROGERS denies the
remaining allegations contained in paragraph 53 of the Second Amended Complaint.
54. | ROGERS is without knowledge as to what items were allegedly ordered by
Plaintiff. ROGERS denies that any items were ordered for Franklin as all goods were sold
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FUrRs? FrruiMan DAVID & JosPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
to the parents of students of Franklin and not Franklin. ROGERS denies the remaining
allegations contained in paragraph 54 of the Second Amended Complaint.
55. | ROGERS denies the allegations contained in paragraph 55 of the Second
Amended Complaint.
56. | ROGERS admits that iUniforms currently has permission to sell clothing
bearing the protected logo of Franklin Academy to the parents of students that attend
Franklin Academy. ROGERS denies the remaining allegations contained in paragraph 56
of the Second Amended Complaint.
57. | ROGERS is without knowledge as to the allegations contained in paragraph
57 of the Second Amended Complaint and therefore denies the same and demands strict
proof thereof.
58. | ROGERS admits that the Chairman of the Board of Directors of Franklin
Academy Charter School communicated with parents on August 12, 2013. ROGERS
denies the remaining the allegations contained in paragraph 58 of the Second Amended
Complaint.
59. | ROGERS admits that Mr. Shellow appeared for deposition and offered
sworn testimony. The transcript of that deposition speaks for itself. To the extent the
allegations contained in paragraph 59, including all sub-parts, attempt to characterize
said testimony, ROGERS denies those allegations.
60. | ROGERS denies the allegations contained in paragraph 60 of the Second
Amended Complaint.
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FUrRs? FrruiMan DAVID & JosPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
61. | ROGERS denies the allegations contained in paragraph 61 of the Second
Amended Complaint.
62. | ROGERS denies the allegations contained in paragraph 62 of the Second
Amended Complaint.
63. | ROGERS denies the allegations contained in paragraph 63 of the Second
Amended Complaint.
64. | ROGERS is without knowledge as to the allegations contained in paragraph
64 and therefore denies the same and demands strict proof thereof.
65. | ROGERS denies the allegations contained in paragraph 65 of the Second
Amended Complaint.
66. ROGERS admits that Plaintiff has attempted to plead in the alternative, but
denies that it has successfully done so.
COUNT I
FRAUDULENT MISREPRESENTATION
(Against Franklin only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of
the allegations contained in paragraphs 67 through 79 are denied.
COUNT II
FRAUDULENT MISREPRESENTATION
(Against Rogers Only)
Defendant incorporates his responses to paragraphs 1 through 66 as if fully set
forth herein.
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Furs? FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
80. | ROGERS denies the allegations contained in paragraph 80 of the Second
Amended Complaint.
81. | ROGERS denies the allegations contained in paragraph 81 of the Second
Amended Complaint.
82. ROGERS denies the allegations contained in paragraph 82 of the Second
Amended Complaint.
83. | ROGERS denies the allegations contained in paragraph 83 of the Second
Amended Complaint.
84. | ROGERS denies the allegations contained in paragraph 84 of the Second
Amended Complaint.
85. | ROGERS denies the allegations contained in paragraph 85 of the Second
Amended Complaint.
86. | ROGERS denies the allegations contained in paragraph 86 of the Second
Amended Complaint.
87. | ROGERS denies making the alleged statements and therefore denies the
allegations contained in paragraph 87 of the Second Amended Complaint.
88. | ROGERS denies making the alleged statements and therefore denies the
allegations contained in paragraph 88 of the Second Amended Complaint.
89. | ROGERS denies the allegations contained in paragraph 89 of the Second
Amended Complaint.
90. | ROGERS denies the allegations contained in paragraph 90 of the Second
Amended Complaint.
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Furs FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its
favor and against the Plaintiff and to award ROGERS his costs incurred in defending this
action.
COUNT III
FRAUDULENT MISREPRESENTATION
(Against Sznitken Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 91 through 100 are denied.
COUNT IV
NEGLIGENT MISREPRESENTATION
(Against Franklin only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 101 through 111 are denied.
COUNT V
BREACH OF ORAL CONTRACT
(Against Franklin Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 112 through 116 are denied.
12
Furs? FrruiMan DAVID & JosPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
COUNT VI
PROMISSORY ESTOPPEL
(Against Franklin only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 117 through 122 are denied.
COUNT VII
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against iUniforms Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 123 through 126 are denied.
COUNT VIII
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP
(Against iUniforms Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 127 through 131 are denied.
COUNT Ix
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Shellow Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 132 through 136 are denied.
13
FUrRs? FrruiMan DAVID & JosePit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
TORTIOUS INTERFERENCE WITH Goyannacoce BUSINESS RELATIONSHIP
(Against Shellow Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 137 through 142 are denied.
COUNT XI
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Rogers Only)
Defendant incorporates his responses to paragraphs 1 through 66 as if fully set
forth herein.
143. ROGERS denies the allegations contained in paragraph 143 of the Second
Amended Complaint.
144. ROGERS denies the allegations contained in paragraph 144 of the Second
Amended Complaint.
145. ROGERS denies the allegations contained in paragraph 145 of the Second
Amended Complaint.
146. ROGERS denies the allegations contained in paragraph 146 of the Second
Amended Complaint.
147. ROGERS denies allegations contained in paragraph 147 of the Second
Amended Complaint.
148. ROGERS denies allegations contained in paragraph 148 of the Second
Amended Complaint.
14
Furs FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
149. ROGERS denies allegations contained in paragraph 149 of the Second
Amended Complaint.
150. ROGERS denies allegations contained in paragraph 150 of the Second
Amended Complaint.
151. ROGERS denies the allegations contained in paragraph 151 of the Second
Amended Complaint.
WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its
favor and against the Plaintiff and to award ROGERS his costs incurred in defending this
action.
COUNT XII
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP
(Against Rogers Only)
Defendant incorporates his responses to paragraphs 1 through 66 as if fully set
forth herein.
152. ROGERS denies the allegations contained in paragraph 152 of the Second
Amended Complaint.
153. ROGERS denies the allegations contained in paragraph 153 of the Second
Amended Complaint.
154. ROGERS denies the allegations contained in paragraph 154 of the Second
Amended Complaint.
155. ROGERS denies the allegations contained in paragraph 155 of the Second
Amended Complaint.
15
FUrRs? FrruiMan DAVID & JosPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
156. ROGERS denies allegations contained in paragraph 156 of the Second
Amended Complaint.
157. ROGERS denies allegations contained in paragraph 157 of the Second
Amended Complaint.
158. ROGERS denies allegations contained in paragraph 158 of the Second
Amended Complaint.
159. ROGERS denies allegations contained in paragraph 159 of the Second
Amended Complaint.
160. ROGERS denies the allegations contained in paragraph 160 of the Second
Amended Complaint.
WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its
favor and against the Plaintiff and to award ROGERS his costs incurred in defending this
action.
COUNT XIII
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Sznitken Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 161 through 167 are denied.
16
Furs FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
COUNT XIV
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP
(Against Sznitken Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 168 through 175 are denied.
COUNT XV
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Discovery Schools Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 176 through 179 are denied.
COUNT XVI
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP
(Against Discovery Schools Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 180 through 184 are denied.
COUNT XVII
MISAPPROPRIATION OF TRADE SECRETS
(Against Rogers Only)
Defendant incorporates his responses to paragraphs 1 through 66 as if fully set
forth herein.
185. ROGERS denies the allegations contained in paragraph 185 of the Second
Amended Complaint.
17
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1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
186. ROGERS denies the allegations contained in paragraph 185 of the Second
Amended Complaint.
187. ROGERS denies the allegations contained in paragraph 187 of the Second
Amended Complaint.
188. ROGERS denies the allegations contained in paragraph 188 of the Second
Amended Complaint.
189. ROGERS denies allegations contained in paragraph 189 of the Second
Amended Complaint.
190. ROGERS denies allegations contained in paragraph 190 of the Second
Amended Complaint.
191. ROGERS denies allegations contained in paragraph 191 of the Second
Amended Complaint.
192. ROGERS denies allegations contained in paragraph 192 of the Second
Amended Complaint.
WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its
favor and against the Plaintiff and to award ROGERS his costs incurred in defending this
action.
COUNT XVIII
MISAPPROPRIATION OF TRADE SECRETS
(Against Sznitken Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 193 through 200 are denied.
18
Furs FrruiMan DAVID & JostPit
1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
COUNT XIX
MISAPPROPRIATION OF TRADE SECRETS
(Against Shellow Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 201 through 208 are denied.
COUNT XX
MISAPPROPRIATION OF TRADE SECRETS
(Against iUniforms Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 209 through 216 are denied.
COUNT XXI
MISAPPROPRIATION OF TRADE SECRETS
(Against Discovery Schools Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 217 through 221 are denied.
COUNT XxII
MISAPPROPRIATION OF TRADE SECRETS
(Against Franklin Only)
This Count is not directed against ROGERS so ROGERS offers no response to it.
To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the
allegations contained in paragraphs 222 through 226 are denied.
19
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1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
AFFIRMATIVE DEFENSES
For its First Affirmative Defense ROGERS alleges that Plaintiff's action for
fraudulent misrepresentation fails to allege a misrepresentation of a material fact. Romo
v. Amedex Ins. Co., 930 So. 2d 643, 650-51 (Fla. 3d DCA 2006) (To state a cause of action
for fraudulent misrepresentation, a plaintiff is required to allege the following elements
in the complaint: (1) a misrepresentation of a material fact; (2) which the person making
the misrepresentation knew to be false; (3) that the misrepresentation was made with the
purpose of inducing another person to rely upon it; (4) that the person relied on the
misrepresentation to his detriment; and (5) that this reliance caused damages.) Plaintiff
states that “Tom Rogers on behalf of [Franklin] orally agreed that if [Plaintiff] performed
as promised, a contract would be immediately executed following the back to school
season.” Plaintiff cannot rely upon a statement of future intent as a basis for a fraud claim.
For its Second Affirmative Defense, ROGERS alleges that even if Rogers’ statement
could be construed as a false promise to enter into a contract such an action is not
actionable as fraud. Sleight v. Sun & Surf Realty, Inc., 410 So. 2d 998, 999 (Fla. 3d DCA
1982) (A false statement amounting to a promise to do something in the future is not
actionable fraud.) Also see: Stoler v. Metropolitan Life Insurance Company, 287 So.2d 694
(Fla. 3d DCA 1974); Evans v. Gray, 215 So.2d 40 (Fla. 3d DCA 1968), cert. denied, 222
So.2d 748 (Fla.1969); 27 Fla Jur.2d, “Fraud and Deceit” s 24. Based on the above, Plaintiff
has failed to state a cause of action for fraudulent misrepresentation.
For its Third Affirmative Defense ROGERS alleges that the “contract” alleged to
have been interfered with expired. Planet T’s lawsuit turns on whether Franklin, or its
20
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agents (including Rogers, Sznitken, and Discovery Schools), breached or interfered with
the alleged contract or business relationship between Plaintiff and Franklin; or
misrepresented that Franklin would execute a written contract. Upon inspection of the
allegations in the Second Amended Complaint, all of these claims fail because the alleged
oral contracts were for one-year terms. See Sec. Amd. Compl. at 4§ 20; 21; 28; 35; 83.
Rogers could not have interfered with “contracts” that had expired based on their own
alleged terms.
Because the alleged oral agreement expired pursuant to its own terms, there was
no contract or agreement between Planet T and Franklin with which Rogers could have
interfered.
For its Fourth Affirmative Defense ROGERS alleges that Plaintiff's claims against
him for tortious interference fail because he was an agent of Franklin. The Second
Amended Complaint explicitly claims that Rogers was an agent of Franklin. As the
Fourth District Court of Appeal stated in Richard Bertram, Inc. v. Sterling Bank & Trust,
820 So. 2d 963, 965 (Fla. 4th DCA 2002), “an agent is not liable for tortious interference
with a contract of which his or her principal is a party.” Also see, Fisher v. Grady, 178 So.
852, 860 (Fla. 1937) (stating that “no presumption of fraud will be deemed to arise against
an agent unless it appears that he has personal interests conflicting with those of the
principal.”).
Therefore, because Rogers was acting within the scope of his agency, as a matter
of law he is not liable for tortious interference with a contractual or business relationship
between Plaintiff and FCF.
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For its Fifth Affirmative Defense ROGERS alleges that Plaintiff's allegation that
“Tom Rogers on behalf of [Franklin] orally agreed that if [Plaintiff] performed as
promised, a contract would be immediately executed following the back-to-school
season...” does not constitute a false statement. The proposed agreement was never
agreed as evidenced by its form. ROGERS sent to Plaintiff a “red-line” version of
Plaintiff's proposed contract on May 9, 2011. In a May 16, 2011 email from Plaintiff to
Rogers, Plaintiff's representative acknowledged receipt of the red-line version of the
contract. Franklin attempted in good faith to negotiate an express contract, which negates
Plaintiff's claim that Rogers’s statement “that [Franklin] would sign the contract at their
next meeting” was false. Based on the above, Plaintiff has failed to state a cause of action
for negligent misrepresentation.
For its Sixth Affirmative Defense ROGERS alleges that Plaintiff did not justifiably
rely upon the alleged promise to enter into a contract. In fact, Plaintiff never relied upon
the promise to enter into a contract because it sold products to FCF’s Franklin Academy
students and parents during the 2011-12 and 2012-13 school years without any contract
being in place. As Plaintiff's representative stated in a January 12, 2012 email, the parties
were governed by an agreement reached “[w]hen you shook my hand, in lieu of
committing to the proposed contract...” Plaintiff knew, or should have known, that the
parties had not mutually agreed to written contract terms despite trading versions of a
contract. Based on the above, Plaintiff has failed to state a cause of action for negligent
misrepresentation.
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For its Seventh Affirmative Defense ROGERS alleges that Plaintiff's allegation of
a false statement by ROGERS is not pleaded with sufficient specificity for the court to
conclude that the alleged false statement caused the alleged damages. Morgan v. W.R.
Grace & Co.--Conn., 779 So. 2d 503, 506 (Fla. 2d DCA 2000) (...the requirement that fraud
be pleaded with specificity also applies to claims for negligent misrepresentation...)
Plaintiff claims that in May of 2011, FCF’s representative falsely promised to sign a
contract. They further state that “[a] contract was never signed.” Yet, in paragraph 28 of
the Complaint, the Plaintiff states that “[b]ased on the representations made by [FCF],
[Plaintiff] ordered and currently possesses inventory specifically allotted to [FCF] that is
valued at over $100,000.” Plaintiff does not state when it purchased the inventory or why
it maintains such a substantial inventory nearly three years after the alleged false
statement. Neither does Plaintiff reconcile the alleged $100,000 of inventory with the
alleged “$25,000 worth of inventory, which was required according to the terms of their
oral agreement.” Based on the above, Plaintiff has failed to state a cause of action for
negligent misrepresentation.
For its Eighth Affirmative Defense ROGERS alleges that there can be no tortious
interference with a relationship that is terminable at will. The court in Wackenhut Corp.
v. Maimone, 389 So. 2d 656, 658 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d
383 (Fla. 1981), made clear that “[w]here the contract interfered with is terminable at
will[,] there is no contract right to have the relation continued, but only an expectancy.”
Because Planet T’s contract was terminable at will, no action for tortious interference with
a contractual relationship may lie.
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For its Tenth Affirmative Defense ROGERS alleges that the claims against him fail
because he owed a duty to his principal, not Plaintiff. Rogers was an agent of Franklin
and acted within the scope and authority of his agency. As an agent of Franklin, Rogers’
duty was to Franklin. Connelly v. Special Rd. & Bridge Dist. No. 5, 126 So. at 797. Since
Rogers owed no duty to Planet T and was acting as an agent of Franklin, he “was entitled
to conduct [the] business and legal affairs [of Franklin] in the manner it determined to be
in its own best interests without regard to the effects on” Planet T. Paparone v. Bankers
Life & Cas. Co., 496 So. 2d 865, 868 (Fla. 2d DCA 1986). Because Rogers owed no duty to
Planet T and is allowed as a matter of law to conduct his business and legal affairs in his
own best interests and in Franklin’s best interests, Rogers as a matter of law did not
interfere with Planet T’s alleged business relationship.
For its Eleventh Affirmative Defense ROGERS alleges the alleged business
relationship was not evidenced by an actual and identifiable understanding that would
have been completed if ROGERS had not interfered. An action for tortious interference
with a prospective business relationship requires a business relationship evidenced by an
actual and identifiable understanding or agreement which in all probability would have
been completed if the defendant had not interfered. ISS Cleaning Services Group, Inc. v.
Cosby, 745 So. 2d 460, 462 (Fla. 4th DCA 1999). According to the facts alleged in the
Second Amended Complaint, there was no actual or identifiable agreement between the
parties. According to Planet T, details had to be ironed out. Sec. Amd.Compl. at {| 40.
Furthermore, as the unexecuted contract demonstrates, the parties had not had a meeting
of the minds on key provisions: (1) one party reduced the proposed agreement from four
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to two years with the notation that “[w]e did not discuss terms of the agreement [] I
suggest initial two years.” Exhibit A at § 2(a); (2) a party deleted automatic renewal,
Exhibit A at § 2(b); (3) a party limited the scope of the agreement to one school rather
than to all of Franklin’s schools, Exhibit A at{ 4; (4) a party deleted the provision related
to subsequent year price increases, Exhibit A at 4 5(c); (5) a party deleted the requirement
for monthly reporting during certain months, Exhibit A at {| 6(c); and, a party deleted a
provision requiring “Costs for items paid with this contribution shall be calculated on
actual costs to Planet T and not retail price lists,” Exhibit A at § 7.)
Based on the above, the understanding between the parties was not “actual or
identifiable” and thus there was no relationship that could have been interfered with.
For his Twelfth Affirmative Defense ROGERS alleges that the Plaintiffs claims for
misappropriation of trade secrets fail. First, Plaintiff did not provide any information that
could qualify as trade secrets to either ROGERS or any other Defendant. Second, Plaintiff
did not take reasonable steps to protect any allege trade secrets. Third, Plaintiff cannot,
as a matter of law, establish that the information is provided to Franklin were protected
trade secrets at all. As a public charter school, formed pursuant to Chapter 1002, Florida
Statutes, Franklin and all of its vendors are bound by Chapter 119, Fla. Stat., commonly
known as the Florida Public Records Act. § 1002.33(16)(b), Fla. Stat. Any information
provided by a vendor such as Planet T to a public charter school is immediately deemed
a public record, unless the information is specifically exempt. Once a “trade secret” is
transmitted to a public charter school, there is a statutory, readily ascertainable “proper
means” that other persons can use to obtain disclosure: a public records request. See §
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119.07(1), Fla. Stat. (“Every person who has custody of a public record shall permit the
record to be inspected and copied by any person desiring to do so, at any reasonable time,
under reasonable conditions, and under supervision by the custodian of the public
records.”). See also Nat'l Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201,
1208 (Fla. Ist DCA 2009) (“A public record cannot be transformed into a private record
merely because an agent of the government has promised that it will be kept private.”).
REQUEST FOR ATTORNEY'S FEES
Rogers, pursuant to § 688.05, Fla. Stat. requests an award of attorney's fees
incurred in connection defending the Plaintiff's claims for misappropriation of trade
secrets.
DEMAND FOR JURY TRIAL
Rogers demands a jury trial on all matters so triable as a matter of right.
Dated: August 22, 2017 Respectfully submitted,
FUERST ITTLEMAN DAVID & JOSEPH
1001 Brickell Bay Drive, Suite 3112
Miami, Florida 33131
Tel. (305) 350-5690
Fax (305) 371-8989
E-mail: Cdavid@fuerstlaw.com
Secondary: dmuller@fuerstlaw.com
Counsel for John Thomas Rogers
By: /s/ CHRISTOPHER M. DAVID
Florida Bar No. 985163
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1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 22, 2017, that the foregoing was e-filed using
Florida’s e-Filing Portal, and that same was served on counsel of record via the E-Service
list associated with this action and via electronic mail to: Plaintiffs counsel, The Law
Offices of David Di Pietro, P.A., David Di Pietro, Esq. and Ashley Steffen, Esq.
(david@ddpalaw.com, ashley@ddpalaw.com, service@ddpalaw.com, paralegal@ddpalaw.com,
paralegal2@ddpalaw.com); Co-Defendant, iUniforms, Inc. and Richard Shellow’s Counsel,
Greenberg Traurig, P.A., Kenneth A. Horky, Esq. and Richard Rosengarten, Esq.
(HorkyK@etlaw.com; muehlfeldern@gtlaw.com; RosengartenRich@gtlaw.com; rosr@gtlaw.com;
FLService@gtlaw.com).
By: /s/ CHRISTOPHER M. DAVID
Florida Bar No. 985163
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Preview
Filing # 60763227 E-Filed 08/22/2017 06:19:11 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-14-001087 (04) PLANET T UNIFORMS, INC., Plaintiff, Vv. FLORIDA CHARTER FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, DISCOVERY SCHOOLS, INC., iUNIFORMS, INC., RICHARD SHELLOW, JON THOMAS ROGERS, AND SCOTT SZNITKEN, Defendants. FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, Counter-Plaintiff, v. PLANET T UNIFORMS, INC., Counter-Defendant. aeneeeenent ANSWER AND AFFIRMATIVE DEFENSES OF JON THOMAS ROGERS TO THIRD AMENDED COMPLAINT! The Defendant, JON THOMAS ROGERS (“ROGERS”), by and through undersigned counsel hereby files and serves his Answer and Affirmative Defenses to the Third Amended Complaint and in support thereof submits as follows: 1. ROGERS admits that the Plaintiff has attempted to assert a claim for damages. ROGERS denies that that the Plaintiff has successfully done so and therefore denies the allegations contained in paragraph lof the Second Amended Complaint. Any allegation, or part thereof, not specifically admitted is denied. FUERs? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COM *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 8/22/2017 6:19:11 PM.****CASE NO.: CACE-14-001087 (04) 2. ROGERS is without knowledge as to the allegations contained in paragraph 2 of the Second Amended Complaint and therefore denies the same and demands strict proof thereof. 3. ROGERS admits the allegations contained in paragraph 3 of the Second Amended Complaint. 4. ROGERS admits the allegations contained in paragraph 4 of the Second Amended Complaint. 5. ROGERS is without knowledge as to the allegations contained in paragraph 5 of the Second Amended Complaint and therefore denies the same and demands strict proof thereof. 6. ROGERS is without knowledge as to the allegations contained in paragraph 6 of the Second Amended Complaint and therefore denies the same and demands strict proof thereof. 7. ROGERS admits the allegations contained in paragraph 7 of the Second Amended Complaint. 8. ROGERS admits the allegations contained in paragraph 8 of the Second Amended Complaint. 9. The allegations contained in paragraph 9 are admitted only for purpose of venue. 10. | ROGERS denies the allegations contained in paragraph 10 of the Second Amended Complaint. > FUrRs? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) GENERAL ALLEGATIONS 11. ROGERS admits that Planet T is a corporation. ROGERS is without knowledge as to the remaining allegations contained in paragraph 11 and therefore denies the same. 12. ROGERS admits the Franklin Academy operates a charter school in Broward County, Florida. 13. | ROGERS admits that Discovery Schools provides services to Franklin based upon a written agreement between them. 14. | ROGERS admits that iUniforms sells school uniforms. 15. | ROGERS admits that he is the CEO of Discovery Schools. ROGERS further admits that he is an agent of Franklin. 16. ROGERS admits that Sznitken is a director of Florida Charter Foundation and that Florida Charter Foundation does business as Franklin Academy Charter School. 17. | ROGERS admits that Franklin was contacted by Plaintiff and that Plaintiff submitted a proposal to sell certain school uniforms to the parents of students at Franklin Academy. ROGERS denies the remaining allegations contained in paragraph 17 of the Second Amended Complaint. 18. | ROGERS denies the allegations contained in paragraph 18 of the Second Amended Complaint. 19. | ROGERS is without knowledge as to the allegations contained in paragraph 19 of the Second Amended Complaint and therefore denies the same and demands strict proof thereof. 3 FUrRs? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 20. | ROGERS is without knowledge as to the allegations contained in paragraph 20 of the Second Amended Complaint and therefore denies the same and demands strict proof thereof. 21. | ROGERS denies the allegations contained in paragraph 21 of the Second Amended Complaint. 22. | ROGERS admits that Plaintiff was authorized to sell uniforms to Franklin’s students for the 2011-2012 school year and did so. ROGERS is without knowledge as to Planet T’s intentions or desires. 23. | ROGERS admits that a proposal was submitted by Planet T by which Planet T proposed to be licensed by Franklin to sell clothing to the parents of students who attended Franklin Academy. ROGERS denies that the proposal was acceptable or that anyone on behalf of Planet T agreed to its terms. ROGERS admits that Planet T sold uniforms to parents of Franklin’s students. ROGERS denies the remaining allegations contained in paragraph 23 of the Second Amended Complaint. 24, | ROGERS admits that he, on behalf of Franklin rejected the agreement proposed by Planet T. 25. | ROGERS admits that Planet T sought meetings with Franklin regarding its proposal. ROGERS denies that Franklin “delayed” meeting with Planet T. ROGERS denies that anyone acting on behalf of Franklin indicated in any way that the Planet T proposal was acceptable or that it would be accepted. ROGERS denies the remaining allegations contained in paragraph 25 of the Second Amended Complaint. 4 Fuerst FrruiMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 26. ROGERS admits that the Planet T proposal was not accepted in May of 2011. ROGERS denies the remaining allegations contained in paragraph 26 of the Second Amended Complaint. 27. ROGERS admits that Franklin did not execute the Plaintiffs proposed agreement as the same had been rejected by Rogers previously. ROGERS denies the remaining allegations contained in paragraph 27 of the Second Amended Complaint. 28. | ROGERS denies the allegations contained in paragraph 28 of the Second Amended Complaint. 29. | ROGERS admits that Planet T sought additional meetings regarding its proposal. ROGERS denies the remaining allegations contained in paragraph 29 of the Second Amended Complaint. 30. | ROGERS denies the allegations contained in paragraph 30 of the Second Amended Complaint. 31. | ROGERS denies that he or Franklin was provided any “privileged sales or margin information.” ROGERS is without knowledge as to the state of mind of Planet T at the time. ROGERS denies the remaining allegations contained in paragraph 31 of the Second Amended Complaint. 32. | ROGERS denies the allegations contained in paragraph 32 of the Second Amended Complaint. 33. | ROGERS admits that Franklin had no need to meet with Planet T because no agreement was reached and Planet T’s proposals had not been accepted. ROGERS admits that in or about March of 2012 Planet T contacted Franklin and requested to 5 FUrRS? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) discuss a proposal for Planet T to act as uniform supplier for the upcoming school year. ROGERS denies that an agreement was reached at that time. The remaining allegations contained in paragraph 33 of the Second Amended Complaint denied. 34. | ROGERS is without knowledge as to the allegations contained in paragraph 34 of the Second Amended Complaint. ROGERS states that no vendor was awarded the right to sell uniforms to Franklin’s students as of January of 2012 for the 2012-2013 school year. 35. | ROGERS denies the allegations contained in paragraph 35 of the Second Amended Complaint. 36. | ROGERS denies the allegations contained in paragraph 36 of the Second Amended Complaint. 37. | ROGERS does not believe that a meeting occurred in September of 2012 with Planet T. ROGERS denies the remaining allegations contained in paragraph 37 of the Second Amended Complaint. 38. | ROGERS admits that Mr. Sznitken contacted Planet T to set up a visit to Planet T’s store. ROGERS denies the remaining allegations contained in paragraph 38 of the Second Amended Complaint. 39. | ROGERS admits that Mr. Sznitken is an agent and employee of Franklin with the title of “Director.” ROGERS further admits that Mr. Sznitken’s duties involve contact with entities seeking to enter into agreements with Franklin. ROGERS denies the remaining allegations contained in paragraph 39 of the Second Amended Complaint. 6 FUrRs? FrruiMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 40. ROGERS denies the allegations contained in paragraph 40 of the Complaint. 41. | ROGERS admits that Planet T requested a meeting. ROGERS denies that it committed to any course of action. 42. | ROGERS admits that Franklin requested sales information from Planet T so that it could determine, among other things, how much money Planet T owed to Franklin. The remaining allegations contained in paragraph 42 are denied. 43. | ROGERS denies the allegations contained in paragraph 43 of the Second Amended Complaint. 44. | ROGERS admits that Franklin requested certain items that the Plaintiff sold to Franklin’s students. ROGERS denies the remaining allegations contained in paragraph 44 of the Second Amended Complaint. 45. | ROGERS admits that after Planet T provided representative samples of the items it had sold to parents of students of Franklin Academy that Franklin paid $2,913.40 Planet T to satisfy Plaintiffs invoice #1109753 for the purchased items. 46. | ROGERS admits that Franklin advised Plaintiff orally on or about January 24, 2013 that it would not allow Planet T to sell items displaying Franklin’s protected logo after March 31, 2013. ROGERS denies the remaining allegations contained in paragraph 46 of the Second Amended Complaint. 47. | ROGERS denies the allegations contained in paragraph 47 of the Second Amended Complaint. 7 FUERS? FrruiMaN DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 48. | ROGERS denies the allegations contained in paragraph 48 of the Second Amended Complaint. 49. | ROGERS denies the allegations contained in paragraph 49 of the Second Amended Complaint. 50. | ROGERS denies that Franklin agreed to sign the contract submitted to it by the Plaintiff or that Franklin agreed to the terms offered by the Plaintiff. Furthermore, ROGERS denies that the Plaintiff performed adequately. ROGERS denies the remaining allegations contained in paragraph 50 of the Second Amended Complaint. 51. | ROGERS is without knowledge as to what items or inventory the Plaintiff ordered or its state of mind when doing so. ROGERS denies the remaining allegations contained in paragraph 51 of the Second Amended Complaint. 52. | ROGERS admits that Franklin notified Plaintiff that it could not sell product displaying Franklin’s protected logos after March 31, 2103. ROGERS admits that Franklin was under no obligation to guarantee the alleged purchases and that Franklin refused to do so. ROGERS is without knowledge as to the remaining allegations contained in paragraph 52 of the Second Amended Complaint and therefore denies the same and demands strict proof thereof. 53. | ROGERS admits that Planet T was not authorized to sell products displaying Franklin’s protected logos after March 31, 2013. ROGERS denies the remaining allegations contained in paragraph 53 of the Second Amended Complaint. 54. | ROGERS is without knowledge as to what items were allegedly ordered by Plaintiff. ROGERS denies that any items were ordered for Franklin as all goods were sold 8 FUrRs? FrruiMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) to the parents of students of Franklin and not Franklin. ROGERS denies the remaining allegations contained in paragraph 54 of the Second Amended Complaint. 55. | ROGERS denies the allegations contained in paragraph 55 of the Second Amended Complaint. 56. | ROGERS admits that iUniforms currently has permission to sell clothing bearing the protected logo of Franklin Academy to the parents of students that attend Franklin Academy. ROGERS denies the remaining allegations contained in paragraph 56 of the Second Amended Complaint. 57. | ROGERS is without knowledge as to the allegations contained in paragraph 57 of the Second Amended Complaint and therefore denies the same and demands strict proof thereof. 58. | ROGERS admits that the Chairman of the Board of Directors of Franklin Academy Charter School communicated with parents on August 12, 2013. ROGERS denies the remaining the allegations contained in paragraph 58 of the Second Amended Complaint. 59. | ROGERS admits that Mr. Shellow appeared for deposition and offered sworn testimony. The transcript of that deposition speaks for itself. To the extent the allegations contained in paragraph 59, including all sub-parts, attempt to characterize said testimony, ROGERS denies those allegations. 60. | ROGERS denies the allegations contained in paragraph 60 of the Second Amended Complaint. 9 FUrRs? FrruiMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 61. | ROGERS denies the allegations contained in paragraph 61 of the Second Amended Complaint. 62. | ROGERS denies the allegations contained in paragraph 62 of the Second Amended Complaint. 63. | ROGERS denies the allegations contained in paragraph 63 of the Second Amended Complaint. 64. | ROGERS is without knowledge as to the allegations contained in paragraph 64 and therefore denies the same and demands strict proof thereof. 65. | ROGERS denies the allegations contained in paragraph 65 of the Second Amended Complaint. 66. ROGERS admits that Plaintiff has attempted to plead in the alternative, but denies that it has successfully done so. COUNT I FRAUDULENT MISREPRESENTATION (Against Franklin only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 67 through 79 are denied. COUNT II FRAUDULENT MISREPRESENTATION (Against Rogers Only) Defendant incorporates his responses to paragraphs 1 through 66 as if fully set forth herein. 10 Furs? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 80. | ROGERS denies the allegations contained in paragraph 80 of the Second Amended Complaint. 81. | ROGERS denies the allegations contained in paragraph 81 of the Second Amended Complaint. 82. ROGERS denies the allegations contained in paragraph 82 of the Second Amended Complaint. 83. | ROGERS denies the allegations contained in paragraph 83 of the Second Amended Complaint. 84. | ROGERS denies the allegations contained in paragraph 84 of the Second Amended Complaint. 85. | ROGERS denies the allegations contained in paragraph 85 of the Second Amended Complaint. 86. | ROGERS denies the allegations contained in paragraph 86 of the Second Amended Complaint. 87. | ROGERS denies making the alleged statements and therefore denies the allegations contained in paragraph 87 of the Second Amended Complaint. 88. | ROGERS denies making the alleged statements and therefore denies the allegations contained in paragraph 88 of the Second Amended Complaint. 89. | ROGERS denies the allegations contained in paragraph 89 of the Second Amended Complaint. 90. | ROGERS denies the allegations contained in paragraph 90 of the Second Amended Complaint. 11 Furs FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award ROGERS his costs incurred in defending this action. COUNT III FRAUDULENT MISREPRESENTATION (Against Sznitken Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 91 through 100 are denied. COUNT IV NEGLIGENT MISREPRESENTATION (Against Franklin only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 101 through 111 are denied. COUNT V BREACH OF ORAL CONTRACT (Against Franklin Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 112 through 116 are denied. 12 Furs? FrruiMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) COUNT VI PROMISSORY ESTOPPEL (Against Franklin only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 117 through 122 are denied. COUNT VII TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against iUniforms Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 123 through 126 are denied. COUNT VIII TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against iUniforms Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 127 through 131 are denied. COUNT Ix TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Shellow Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 132 through 136 are denied. 13 FUrRs? FrruiMan DAVID & JosePit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) TORTIOUS INTERFERENCE WITH Goyannacoce BUSINESS RELATIONSHIP (Against Shellow Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 137 through 142 are denied. COUNT XI TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Rogers Only) Defendant incorporates his responses to paragraphs 1 through 66 as if fully set forth herein. 143. ROGERS denies the allegations contained in paragraph 143 of the Second Amended Complaint. 144. ROGERS denies the allegations contained in paragraph 144 of the Second Amended Complaint. 145. ROGERS denies the allegations contained in paragraph 145 of the Second Amended Complaint. 146. ROGERS denies the allegations contained in paragraph 146 of the Second Amended Complaint. 147. ROGERS denies allegations contained in paragraph 147 of the Second Amended Complaint. 148. ROGERS denies allegations contained in paragraph 148 of the Second Amended Complaint. 14 Furs FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 149. ROGERS denies allegations contained in paragraph 149 of the Second Amended Complaint. 150. ROGERS denies allegations contained in paragraph 150 of the Second Amended Complaint. 151. ROGERS denies the allegations contained in paragraph 151 of the Second Amended Complaint. WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award ROGERS his costs incurred in defending this action. COUNT XII TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against Rogers Only) Defendant incorporates his responses to paragraphs 1 through 66 as if fully set forth herein. 152. ROGERS denies the allegations contained in paragraph 152 of the Second Amended Complaint. 153. ROGERS denies the allegations contained in paragraph 153 of the Second Amended Complaint. 154. ROGERS denies the allegations contained in paragraph 154 of the Second Amended Complaint. 155. ROGERS denies the allegations contained in paragraph 155 of the Second Amended Complaint. 15 FUrRs? FrruiMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 156. ROGERS denies allegations contained in paragraph 156 of the Second Amended Complaint. 157. ROGERS denies allegations contained in paragraph 157 of the Second Amended Complaint. 158. ROGERS denies allegations contained in paragraph 158 of the Second Amended Complaint. 159. ROGERS denies allegations contained in paragraph 159 of the Second Amended Complaint. 160. ROGERS denies the allegations contained in paragraph 160 of the Second Amended Complaint. WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award ROGERS his costs incurred in defending this action. COUNT XIII TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Sznitken Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 161 through 167 are denied. 16 Furs FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) COUNT XIV TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against Sznitken Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 168 through 175 are denied. COUNT XV TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Discovery Schools Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 176 through 179 are denied. COUNT XVI TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against Discovery Schools Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 180 through 184 are denied. COUNT XVII MISAPPROPRIATION OF TRADE SECRETS (Against Rogers Only) Defendant incorporates his responses to paragraphs 1 through 66 as if fully set forth herein. 185. ROGERS denies the allegations contained in paragraph 185 of the Second Amended Complaint. 17 Fuerst FrrurMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 186. ROGERS denies the allegations contained in paragraph 185 of the Second Amended Complaint. 187. ROGERS denies the allegations contained in paragraph 187 of the Second Amended Complaint. 188. ROGERS denies the allegations contained in paragraph 188 of the Second Amended Complaint. 189. ROGERS denies allegations contained in paragraph 189 of the Second Amended Complaint. 190. ROGERS denies allegations contained in paragraph 190 of the Second Amended Complaint. 191. ROGERS denies allegations contained in paragraph 191 of the Second Amended Complaint. 192. ROGERS denies allegations contained in paragraph 192 of the Second Amended Complaint. WHEREFORE, ROGERS requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award ROGERS his costs incurred in defending this action. COUNT XVIII MISAPPROPRIATION OF TRADE SECRETS (Against Sznitken Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 193 through 200 are denied. 18 Furs FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) COUNT XIX MISAPPROPRIATION OF TRADE SECRETS (Against Shellow Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 201 through 208 are denied. COUNT XX MISAPPROPRIATION OF TRADE SECRETS (Against iUniforms Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 209 through 216 are denied. COUNT XXI MISAPPROPRIATION OF TRADE SECRETS (Against Discovery Schools Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 217 through 221 are denied. COUNT XxII MISAPPROPRIATION OF TRADE SECRETS (Against Franklin Only) This Count is not directed against ROGERS so ROGERS offers no response to it. To the extent the Plaintiff contends that this Count is against ROGERS, the entirety of the allegations contained in paragraphs 222 through 226 are denied. 19 Fuerst FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) AFFIRMATIVE DEFENSES For its First Affirmative Defense ROGERS alleges that Plaintiff's action for fraudulent misrepresentation fails to allege a misrepresentation of a material fact. Romo v. Amedex Ins. Co., 930 So. 2d 643, 650-51 (Fla. 3d DCA 2006) (To state a cause of action for fraudulent misrepresentation, a plaintiff is required to allege the following elements in the complaint: (1) a misrepresentation of a material fact; (2) which the person making the misrepresentation knew to be false; (3) that the misrepresentation was made with the purpose of inducing another person to rely upon it; (4) that the person relied on the misrepresentation to his detriment; and (5) that this reliance caused damages.) Plaintiff states that “Tom Rogers on behalf of [Franklin] orally agreed that if [Plaintiff] performed as promised, a contract would be immediately executed following the back to school season.” Plaintiff cannot rely upon a statement of future intent as a basis for a fraud claim. For its Second Affirmative Defense, ROGERS alleges that even if Rogers’ statement could be construed as a false promise to enter into a contract such an action is not actionable as fraud. Sleight v. Sun & Surf Realty, Inc., 410 So. 2d 998, 999 (Fla. 3d DCA 1982) (A false statement amounting to a promise to do something in the future is not actionable fraud.) Also see: Stoler v. Metropolitan Life Insurance Company, 287 So.2d 694 (Fla. 3d DCA 1974); Evans v. Gray, 215 So.2d 40 (Fla. 3d DCA 1968), cert. denied, 222 So.2d 748 (Fla.1969); 27 Fla Jur.2d, “Fraud and Deceit” s 24. Based on the above, Plaintiff has failed to state a cause of action for fraudulent misrepresentation. For its Third Affirmative Defense ROGERS alleges that the “contract” alleged to have been interfered with expired. Planet T’s lawsuit turns on whether Franklin, or its 20 Fuerst FrruiMan DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) agents (including Rogers, Sznitken, and Discovery Schools), breached or interfered with the alleged contract or business relationship between Plaintiff and Franklin; or misrepresented that Franklin would execute a written contract. Upon inspection of the allegations in the Second Amended Complaint, all of these claims fail because the alleged oral contracts were for one-year terms. See Sec. Amd. Compl. at 4§ 20; 21; 28; 35; 83. Rogers could not have interfered with “contracts” that had expired based on their own alleged terms. Because the alleged oral agreement expired pursuant to its own terms, there was no contract or agreement between Planet T and Franklin with which Rogers could have interfered. For its Fourth Affirmative Defense ROGERS alleges that Plaintiff's claims against him for tortious interference fail because he was an agent of Franklin. The Second Amended Complaint explicitly claims that Rogers was an agent of Franklin. As the Fourth District Court of Appeal stated in Richard Bertram, Inc. v. Sterling Bank & Trust, 820 So. 2d 963, 965 (Fla. 4th DCA 2002), “an agent is not liable for tortious interference with a contract of which his or her principal is a party.” Also see, Fisher v. Grady, 178 So. 852, 860 (Fla. 1937) (stating that “no presumption of fraud will be deemed to arise against an agent unless it appears that he has personal interests conflicting with those of the principal.”). Therefore, because Rogers was acting within the scope of his agency, as a matter of law he is not liable for tortious interference with a contractual or business relationship between Plaintiff and FCF. 21 Furs FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) For its Fifth Affirmative Defense ROGERS alleges that Plaintiff's allegation that “Tom Rogers on behalf of [Franklin] orally agreed that if [Plaintiff] performed as promised, a contract would be immediately executed following the back-to-school season...” does not constitute a false statement. The proposed agreement was never agreed as evidenced by its form. ROGERS sent to Plaintiff a “red-line” version of Plaintiff's proposed contract on May 9, 2011. In a May 16, 2011 email from Plaintiff to Rogers, Plaintiff's representative acknowledged receipt of the red-line version of the contract. Franklin attempted in good faith to negotiate an express contract, which negates Plaintiff's claim that Rogers’s statement “that [Franklin] would sign the contract at their next meeting” was false. Based on the above, Plaintiff has failed to state a cause of action for negligent misrepresentation. For its Sixth Affirmative Defense ROGERS alleges that Plaintiff did not justifiably rely upon the alleged promise to enter into a contract. In fact, Plaintiff never relied upon the promise to enter into a contract because it sold products to FCF’s Franklin Academy students and parents during the 2011-12 and 2012-13 school years without any contract being in place. As Plaintiff's representative stated in a January 12, 2012 email, the parties were governed by an agreement reached “[w]hen you shook my hand, in lieu of committing to the proposed contract...” Plaintiff knew, or should have known, that the parties had not mutually agreed to written contract terms despite trading versions of a contract. Based on the above, Plaintiff has failed to state a cause of action for negligent misrepresentation. 22 FUrRs? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) For its Seventh Affirmative Defense ROGERS alleges that Plaintiff's allegation of a false statement by ROGERS is not pleaded with sufficient specificity for the court to conclude that the alleged false statement caused the alleged damages. Morgan v. W.R. Grace & Co.--Conn., 779 So. 2d 503, 506 (Fla. 2d DCA 2000) (...the requirement that fraud be pleaded with specificity also applies to claims for negligent misrepresentation...) Plaintiff claims that in May of 2011, FCF’s representative falsely promised to sign a contract. They further state that “[a] contract was never signed.” Yet, in paragraph 28 of the Complaint, the Plaintiff states that “[b]ased on the representations made by [FCF], [Plaintiff] ordered and currently possesses inventory specifically allotted to [FCF] that is valued at over $100,000.” Plaintiff does not state when it purchased the inventory or why it maintains such a substantial inventory nearly three years after the alleged false statement. Neither does Plaintiff reconcile the alleged $100,000 of inventory with the alleged “$25,000 worth of inventory, which was required according to the terms of their oral agreement.” Based on the above, Plaintiff has failed to state a cause of action for negligent misrepresentation. For its Eighth Affirmative Defense ROGERS alleges that there can be no tortious interference with a relationship that is terminable at will. The court in Wackenhut Corp. v. Maimone, 389 So. 2d 656, 658 (Fla. 4th DCA 1980), petition for rev. denied, 411 So.2d 383 (Fla. 1981), made clear that “[w]here the contract interfered with is terminable at will[,] there is no contract right to have the relation continued, but only an expectancy.” Because Planet T’s contract was terminable at will, no action for tortious interference with a contractual relationship may lie. 23 Furs? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) For its Tenth Affirmative Defense ROGERS alleges that the claims against him fail because he owed a duty to his principal, not Plaintiff. Rogers was an agent of Franklin and acted within the scope and authority of his agency. As an agent of Franklin, Rogers’ duty was to Franklin. Connelly v. Special Rd. & Bridge Dist. No. 5, 126 So. at 797. Since Rogers owed no duty to Planet T and was acting as an agent of Franklin, he “was entitled to conduct [the] business and legal affairs [of Franklin] in the manner it determined to be in its own best interests without regard to the effects on” Planet T. Paparone v. Bankers Life & Cas. Co., 496 So. 2d 865, 868 (Fla. 2d DCA 1986). Because Rogers owed no duty to Planet T and is allowed as a matter of law to conduct his business and legal affairs in his own best interests and in Franklin’s best interests, Rogers as a matter of law did not interfere with Planet T’s alleged business relationship. For its Eleventh Affirmative Defense ROGERS alleges the alleged business relationship was not evidenced by an actual and identifiable understanding that would have been completed if ROGERS had not interfered. An action for tortious interference with a prospective business relationship requires a business relationship evidenced by an actual and identifiable understanding or agreement which in all probability would have been completed if the defendant had not interfered. ISS Cleaning Services Group, Inc. v. Cosby, 745 So. 2d 460, 462 (Fla. 4th DCA 1999). According to the facts alleged in the Second Amended Complaint, there was no actual or identifiable agreement between the parties. According to Planet T, details had to be ironed out. Sec. Amd.Compl. at {| 40. Furthermore, as the unexecuted contract demonstrates, the parties had not had a meeting of the minds on key provisions: (1) one party reduced the proposed agreement from four 24 Fuerst FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) to two years with the notation that “[w]e did not discuss terms of the agreement [] I suggest initial two years.” Exhibit A at § 2(a); (2) a party deleted automatic renewal, Exhibit A at § 2(b); (3) a party limited the scope of the agreement to one school rather than to all of Franklin’s schools, Exhibit A at{ 4; (4) a party deleted the provision related to subsequent year price increases, Exhibit A at 4 5(c); (5) a party deleted the requirement for monthly reporting during certain months, Exhibit A at {| 6(c); and, a party deleted a provision requiring “Costs for items paid with this contribution shall be calculated on actual costs to Planet T and not retail price lists,” Exhibit A at § 7.) Based on the above, the understanding between the parties was not “actual or identifiable” and thus there was no relationship that could have been interfered with. For his Twelfth Affirmative Defense ROGERS alleges that the Plaintiffs claims for misappropriation of trade secrets fail. First, Plaintiff did not provide any information that could qualify as trade secrets to either ROGERS or any other Defendant. Second, Plaintiff did not take reasonable steps to protect any allege trade secrets. Third, Plaintiff cannot, as a matter of law, establish that the information is provided to Franklin were protected trade secrets at all. As a public charter school, formed pursuant to Chapter 1002, Florida Statutes, Franklin and all of its vendors are bound by Chapter 119, Fla. Stat., commonly known as the Florida Public Records Act. § 1002.33(16)(b), Fla. Stat. Any information provided by a vendor such as Planet T to a public charter school is immediately deemed a public record, unless the information is specifically exempt. Once a “trade secret” is transmitted to a public charter school, there is a statutory, readily ascertainable “proper means” that other persons can use to obtain disclosure: a public records request. See § 25 FUERS? FrruiMaN DAVID & JosPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) 119.07(1), Fla. Stat. (“Every person who has custody of a public record shall permit the record to be inspected and copied by any person desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”). See also Nat'l Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201, 1208 (Fla. Ist DCA 2009) (“A public record cannot be transformed into a private record merely because an agent of the government has promised that it will be kept private.”). REQUEST FOR ATTORNEY'S FEES Rogers, pursuant to § 688.05, Fla. Stat. requests an award of attorney's fees incurred in connection defending the Plaintiff's claims for misappropriation of trade secrets. DEMAND FOR JURY TRIAL Rogers demands a jury trial on all matters so triable as a matter of right. Dated: August 22, 2017 Respectfully submitted, FUERST ITTLEMAN DAVID & JOSEPH 1001 Brickell Bay Drive, Suite 3112 Miami, Florida 33131 Tel. (305) 350-5690 Fax (305) 371-8989 E-mail: Cdavid@fuerstlaw.com Secondary: dmuller@fuerstlaw.com Counsel for John Thomas Rogers By: /s/ CHRISTOPHER M. DAVID Florida Bar No. 985163 26 FUERS? FrruiMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COMCASE NO.: CACE-14-001087 (04) CERTIFICATE OF SERVICE I HEREBY CERTIFY that on August 22, 2017, that the foregoing was e-filed using Florida’s e-Filing Portal, and that same was served on counsel of record via the E-Service list associated with this action and via electronic mail to: Plaintiffs counsel, The Law Offices of David Di Pietro, P.A., David Di Pietro, Esq. and Ashley Steffen, Esq. (david@ddpalaw.com, ashley@ddpalaw.com, service@ddpalaw.com, paralegal@ddpalaw.com, paralegal2@ddpalaw.com); Co-Defendant, iUniforms, Inc. and Richard Shellow’s Counsel, Greenberg Traurig, P.A., Kenneth A. Horky, Esq. and Richard Rosengarten, Esq. (HorkyK@etlaw.com; muehlfeldern@gtlaw.com; RosengartenRich@gtlaw.com; rosr@gtlaw.com; FLService@gtlaw.com). By: /s/ CHRISTOPHER M. DAVID Florida Bar No. 985163 27 FUERS? FrrueMan DAVID & JostPit 1001 BRICKELL, BAY DRIVE, SUITE 3112, MIAMI, FL. 33131 ¢ T: 305.350.5690 * F: 305.371.8989 * WWW.FUERSTLAW.COM