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Filing # 54505347 E-Filed 03/31/2017 03:50:46 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.
/
DEFENDANT FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN
ACADEMY CHARTER SCHOOL’S MOTION TO DISMISS COUNTS I, IV, V, VLAND
XXII OF PLAINTIFF’S SECOND AMENDED COMPLAINT
Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter School,
(“Franklin”), by and through undersigned counsel, pursuant to Rule 1.420 of the Florida Rules of
Civil Procedure hereby files and serves his Motion to Dismiss Counts I, IV, V, VI AND XXII of
Plaintiff's Second Amended Complaint and states as follows:
FUERST ITTLEMAN Davip & JOSEPH
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 3/31/2017 3:50:46 PM.****CASE NO.: CACE-14-001087 (04)
LEGAL STANDARD:
The purpose of a complaint is to advise the defendant of the nature of the cause of
action asserted by the plaintiff. The function of a motion to dismiss a complaint is
to raise as a question of law the sufficiency of the facts alleged to state a cause of
action. For the purpose of passing upon a motion to dismiss, the court must assume
all the facts alleged in the complaint to be true. Consequently, a motion to dismiss
a complaint must be decided on questions of law and questions of law only. The
purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good
cause of action, and the court when faced with a motion to dismiss a complaint for
failure to state a cause of action must confine itself strictly to the allegations within
the four corners of the complaint.
Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968)
Introduction:
Plaintiff filed its Second Amended Complaint on March 9, 2017. The second amended
complaint fails to allege cognizable claims against Franklin and should therefore be dismissed in
its entirety.
L Count I — Fraudulent Misrepresentation—Fails to State a Claim.
A. Planet T failed to identify a statement made by Rogers on behalf of Franklin
that was false and that was known by Rogers to be false at the time it was
made.
To prevail on a claim for Fraudulent Misrepresentation, Planet T must plead and prove:
(1) a false statement of fact;
(2) known by the defendant to be false at the time that it was made;
(3) made for the purpose of inducing the plaintiff to act in reliance thereon;
(4) action by the plaintiff in reliance on the correctness of the representation; and
(5) resulting damage or injury.
(emphasis added). Madness, L.P. v. DiTocco Konstruction, Inc., 873 So. 2d 427,
429 (Fla. 4th DCA 2004); Nat'l Ventures, Inc. v. Water Glades 300 Condo. Ass'n.
847 So. 2d 1070, 1074 (Fla. 4th DCA 2003); Mosley v. Am. Med. Intern., Inc., 712
So. 2d 1149, 1151 (Fla. 4th DCA 1998)
Planet T avers that Rogers is Franklin’s agent. Sec. Amd. Compl. at J 15. Planet T attributes
the alleged false statements of Rogers to Franklin. Sec. Amd. Compl. at § 67. Nowhere in Planet
2
FUERST ITTLEMAN Davip & JOSEPH
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)
T’s complaint does the plaintiffidentify any statement as being false and that was known by Rogers
to be false at the time it was made. Certainly, Planet T identifies several statements it attributes to
Rogers, but Planet T never alleges that any specific statement was false. Neither does Planet T
allege that any specific statement made by Rogers was known by the defendant to be false at the
time that it was made.
Florida’s Rules of Civil Procedure demand that a plaintiff plead fraud with “such
particularity as the circumstances may permit.” Fla. R. Civ. P. 1.120(b). “Particularity requires
identifying the representation of fact and how the representation is false.” Batlemento v. Dove
Fountain, Inc., 593 So. 2d 234, 238 (Fla. 5th DCA 1991).
Even in its third incarnation, Planet T has failed the most basic test of whether a cause of
action is sufficient as a matter of law. Because Planet T has failed once again to plead the elements
of Fraudulent Misrepresentation, Count II must be dismissed.
B. Planet T waived its claims against Franklin for fraudulent misrepresentation
when it renewed the oral contract with knowledge of the prior alleged
fraudulent conduct.
The Defendants reject the notion that any agreement with the terms as alleged by the
Plaintiff ever existed. Notwithstanding this position and assuming arguendo that the alleged
“agreements” occurred, the Plaintiff's claims must fail based upon the allegations as pled in the
Second Amended Complaint. In paragraph 28 of the Second Amended Complaint, Plaintiff
confirms that Rogers, as Franklin’s agent, allegedly made an “oral promise to execute a contract
following the 2010-2011 season.” Then, sometime later, Planet T “entered into the oral agreement
for the 2012-2013 school year.” Sec. Amd. Compl. at § 83. By entering into the subsequent oral
3
FUERST ITTLEMAN Davip & JOSEPH
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)
agreement', Planet T waived its alleged misrepresentation claim related to the prior alleged
agreement. See Harpold v. Stock, 65 So. 2d 477, 478 (Fla. 1953) (“This court and the courts
generally hold that the execution of a new contract respecting a former transaction waives any
claim based on fraud.”)
When Planet T entered into the subsequent oral contract with the admitted knowledge of
Rogers’ alleged prior misrepresentations, the result is a waiver of those claims that are alleged to
have arisen under the prior “oral contract.” Therefore, Planet T’s claim of fraudulent
misrepresentation in Count II must be dismissed.
c. Rogers’ alleged statements on Franklin’s behalf amount to non-actionable
promises of future action.
Since 1914, the law in Florida is that mere promises as to intended future action cannot
satisfy the elements of a fraud or misrepresentation claim. Huffstetler v. Our Home Life Ins. Co.,
65 So. 1 (Fla. 1914), Since Huffstetler, a long line of cases reinforces and expands upon its holding.
In Brinkley v. Arnold, 123 So. 569, 570 (Fla. 1929), the Florida Supreme Court held that “[a]
promise to do something in the future, though made by one party as a representation to another to
enter into a contract, will not amount to a fraud in a legal sense.” Also see Sample v. Ward, 23 So.
2d 81, 85 (Fla. 1945) (holding that “an oral promise to do something in the future, though made
by one party as a representation to induce another to enter into a contract, is not fraud in a legal
sense.”); and, Steyr Daimler Puch of Am. v. A & A Bicycle Mart, Inc., 453 So. 2d 1149, 1150
(Fla. 4th DCA 1984) (“As a general rule fraud cannot be predicated upon a mere promise not
performed.”)
' Regardless of whether the alleged oral agreement is derived from the unexecuted draft contract
attached to the Second Amended Complaint as Exhibit A or from the alleged two-year oral
agreement, the claims fail because of waiver or the expiration of the alleged agreement according
to its terms.
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FUERST ITTLEMAN Davip & JOSEPH
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)
An exception to the general rule exists where a party has promised “to perform a material
matter in the future [] without any intention of performing or made with the positive intention not
to perform.” Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1372 (Fla.
4th DCA 1981). This exception does not apply here because Rogers did, in fact, perform when
Franklin permitted Planet T to sell uniforms to Franklin’s students and parents for the entire two-
year term of the alleged oral contract. Sec. Amd. Compl. at J 20; 21; 28; 35; 83.
Viewed in the most positive light, Rogers merely promises on Franklin’s behalf to enter
into a contract provided certain other events occurred and, ultimately, Franklin permitted Planet T
to sell uniforms to Franklin’s students and parents for the entire two-year term of the alleged oral
contract. Representations as to future conduct, without more, are not actionable as fraud. Thus,
Planet T fails to state a cause of action because such a failed promise as a matter of law does not
support a cause of action for fraudulent misrepresentation. Therefore, Count II must be dismissed.
II. Count IV — Negligent Misrepresentation—Fails to State a Claim.
A. Planet T failed to identify a statement made by Rogers on behalf of Franklin
that was false and that was known by Rogers to be false at the time it was
made.
To “allege a viable cause of action for negligent misrepresentation, four elements must be
present. A plaintiff must allege:
that (1) there was a misrepresentation of material fact; (2) the representer either
knew of the misrepresentation, made the misrepresentation without knowledge of
its truth or falsity, or should have known the representation was false; (3) the
representer intended to induce another to act on the misrepresentation; and (4)
injury resulted to a party acting in justifiable reliance upon the misrepresentation.
Florida Women's Med. Clinic, Inc. v. Sultan, 656 So. 2d 931, 933 (Fla. 4th DCA
1995)
Planet T avers that Rogers is Franklin’s agent. Sec. Amd. Compl. at J 15. Planet T attributes
the alleged false misrepresentations of Rogers to Franklin. Sec. Amd. Compl. at 67. Nowhere in
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FUERST ITTLEMAN Davip & JOSEPH
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)
Planet T’s complaint does the plaintiff identify any statement as being false and that Rogers knew
the misrepresentation was known by Rogers to be false. Certainly, Planet T identifies several
statements it attributes to Rogers, but Planet T never alleges that any specific statement was false.
Neither does Planet T allege that any specific statement made by Rogers was known by the
defendant to be false at the time that it was made.
The allegations that Planet T enumerates in Count IV that attempt to attribute a
misrepresentation to Franklin are facially conclusory because they are not linked to any material
fact:
ROGERS and SZNITKEN both made statements on behalf of FRANKLIN which
were later determined to be fraudulent statements. Sec. Amd. Compl. at 101.
FRANKLIN was negligent in making these statements because it should have
known the statements were false. Sec. Amd. Compl. at § 108.
Florida courts require more than conclusory statements to prove negligence. Warner v.
Florida Jai Alai, Inc., 235 So. 2d 294, 295 (Fla. 1970)( a showing by more than a conclusory
allegation is essential to the statement of a cause of action based on negligence).
Additionally, Florida’s Rules of Civil Procedure demand that a plaintiff plead fraud with
“such particularity as the circumstances may permit.” Fla. R. Civ. P. 1.120(b). “Particularity
requires identifying the representation of fact and how the representation is false.” Batlemento v.
Dove Fountain, Inc., 593 So. 2d 234, 238 (Fla. 5th DCA 1991). Also see Morgan v. W.R. Grace
& Co.--Conn., 779 So. 2d 503, 506 (Fla. 2d DCA 2000)(We conclude that the requirement that
fraud be pleaded with specificity also applies to claims for negligent misrepresentation.)
Planet T has failed to plead with specificity the necessary elements of a claim for negligent
misrepresentation and Count IV must be dismissed.
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FUERST ITTLEMAN Davip & JOSEPH
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)
B. Planet T waived its claims against Franklin for fraudulent misrepresentation
when it renewed the oral contract with knowledge of the prior alleged
fraudulent conduct.
The Defendants reject the notion that any agreement with the terms as alleged by the
Plaintiff ever existed. Notwithstanding this position and assuming arguendo that the alleged
“agreements” occurred, the Plaintiff's claims must fail based upon the allegations as pled in the
Second Amended Complaint. In paragraph 28 of the Second Amended Complaint, Plaintiff
confirms that Rogers allegedly made an “oral promise to execute a contract following the 2010-
2011 season.” Then, sometime later, Planet T “entered into the oral agreement for the 2012-2013
school year.” Sec. Amd. Compl. at § 83. By entering into the subsequent oral agreement”, Planet
T waived its alleged misrepresentation claim related to the prior alleged agreement. See Matusick
v. DiSalvo, 82 So. 3d 1045, 1046 (Fla. 4th DCA 2011); Harpold v. Stock, 65 So. 2d 477, 478 (Fla.
1953) (“This court and the courts generally hold that the execution of a new contract respecting a
former transaction waives any claim based on fraud.”); Benn v. Key W. Propane Gas Corp., 72
So.2d 910, 913 (Fla.1954).
When Planet T entered into the subsequent oral contract with the admitted knowledge of
Rogers’ alleged prior misrepresentations on behalf of Franklin, the result is a waiver of those
claims that are alleged to have arisen under the prior “oral contract.” Therefore, Planet T’s claim
of negligent misrepresentation in Count II must be dismissed.
? Regardless of whether the alleged oral agreement is derived from the unexecuted draft contract
attached to the Second Amended Complaint as Exhibit A or from the alleged two-year oral
agreement, the claims fail because of waiver or the expiration of the alleged agreement according
to its terms.
7
FUERST ITTLEMAN Davip & JOSEPH
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)
Cc Rogers’ alleged statements on behalf of Franklin amount to non-actionable
promises of future action.
Since 1914, the law in Florida is that mere promises as to intended future action cannot
satisfy the elements of a fraud or misrepresentation claim. Huffstetler v. Our Home Life Ins. Co.,
65 So. 1 (Fla. 1914). Since Huffstetler, a long line of cases reinforces and expands upon its holding.
In Brinkley v. Arnold, 123 So. 569, 570 (Fla. 1929), the Florida Supreme Court held that “[a]
promise to do something in the future, though made by one party as a representation to another to
enter into a contract, will not amount to a fraud in a legal sense.”
An exception to the general rule exists where a party has promised “to perform a material
matter in the future [] without any intention of performing or made with the positive intention not
to perform.” Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1372 (Fla.
4th DCA 1981). This exception does not apply here because Rogers did, in fact, perform when
Franklin permitted Planet T to sell uniforms to Franklin’s students and parents for the entire two-
year term of the alleged oral contract. Sec. Amd. Compl. at {fj 20; 21; 28; 35; 83.
Viewed in the most positive light, Rogers merely promises on behalf of Franklin to enter
into a contract provided certain other events occurred and, ultimately, Franklin permitted Planet T
to sell uniforms to Franklin’s students and parents for the entire two-year term of the alleged oral
contract. Representations as to future conduct, without more, are not actionable as fraud. Thus,
Planet T fails to state a cause of action because such a failed promise as a matter of law does not
support a cause of action for negligent misrepresentation. Therefore, Count II must be dismissed.
III. | Count V - Breach of Oral Contract—Fails to State a Claim.
A. Franklin did not breach the oral contract because it expired.
Planet T’s claim that Franklin breached alleged oral contract fails because the alleged oral
contracts were for one-year terms. See Sec. Amd. Compl. at §{] 20; 21; 28; 35; 83. Franklin
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FUERST ITTLEMAN Davip & JOSEPH
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)
permitted Planet T to sell uniforms to its students and parents from March of 2012 (Sec. Amd.
Compl. at § 112) through March 31, 2013 (Sec. Amd. Compl. at j 116). As a matter of law, then
there was no breach and Count V must be dismissed.
B. The oral agreement violated the statute of frauds and was unenforceable as a
matter of law.
In Florida, the Statute of Frauds dictates that “[n]o action shall be brought ... upon any
agreement that is not to be performed within the space of | year from the making thereof ... unless
the agreement or promise ... [is] in writing....” § 725.01, Fla. Stat. Here, the unexecuted contract
was to be performed over the course of a minimum of two years*. Because the oral agreement
extended beyond one year, the Statute of Frauds applies. Steinberg v. Kearns, 907 So. 2d 691, 693
(Fla. 4th DCA 2005) (“[T]he statute of frauds applies only to contracts not to be performed on
either side within the year, and has no application to contracts which by intent were fully performed
within the year on one side.”)
The purpose of the statute is to “intercept the frequency and success of actions based on
nothing more than loose verbal statements or mere innuendos.” Tanenbaum _v. Biscayne
Osteopathic Hosp., Inc., 190 So.2d 777, 779 (Fla.1966) (quoting Yates v. Ball, 132 Fla. 132, 181
So. 341, 344 (1937).
The court in Fin. Healthcare Associates, Inc. v. Pub. Health Trust of Miami-Dade County,
488 F. Supp. 2d 1231, 1239 (S.D. Fla. 2007), when faced with similar circumstances and applying
Florida law, found that a “[c]ontract ... to be performed over the course of three years [made] the
Statute of Frauds applicable.” Also see Coleman Co., Inc. v. Cargil Intern. Corp., 731 So. 2d 2, 3
3 The unexecuted contract’s term is disputed according to Exhibit A to the Second Amended
Complaint, which shows a draft with the four year proposed term lined through and “two year”
inserted. Sec. Amd. Compl. Ex. A at 2(a).
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FUERST ITTLEMAN Davip & JOSEPH
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)
(Fla. 3d DCA 1998) (holding that where the entire term of the contract was for over one year, such
an oral contract is unenforceable pursuant to the Statute of Frauds).
Planet T attempts without success to save the oral agreement from the Statute of Frauds by
alleging the following:
FRANKLIN and PLANET T had a business relationship. PLANET T supplied
specially manufactured uniforms and FRANKLIN was required to send its students
to order uniforms exclusively from PLANET T.
Sec. Amd. Compl. at 4 155.
Section 672.201 (3)(a), Fla. Stat., provides as follows:
(1) Except as otherwise provided in this section a contract for the sale of goods for
the price of $500 or more is not enforceable by way of action or defense unless
there is some writing sufficient to indicate that a contract for sale has been made
between the parties and signed by the party against whom enforcement is sought or
by his or her authorized agent or broker. A writing is not insufficient because it
omits or incorrectly states a term agreed upon but the contract is not enforceable
under this paragraph beyond the quantity of goods shown in such writing.
(3) A contract which does not satisfy the requirements of subsection (1) but which
is valid in other respects is enforceable:
(a) If the goods are to be specially manufactured for the buyer and are not suitable
for sale to others in the ordinary course of the seller’s business and the seller, before
notice of repudiation is received and under circumstances which reasonably
indicate that the goods are for the buyer, has made either a substantial beginning of
their manufacture or commitments for their procurement.
(Emphasis added.)
For § 672.201, Fla. Stat. to save an oral agreement for a term exceeding one-year, Planet T must
allege material facts showing that (1) the alleged oral agreement was for the sale of goods for the
price of $500 or more; or (2) the goods “are to be specially manufactured for the buyer.” Id.
Planet T fails to allege or provide any material facts showing that the sale for the price of
goods exceeded $500. Planet T does claim that it “ordered inventory...that was valued at over
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FUERST ITTLEMAN Davip & JOSEPH
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)
$100,000.00” (Sec. Amd. Compl. at § 51) but never claims that the goods it sold to Franklin had
a price of $500 or more. Indeed, the unexecuted contract contains no sales price for any goods to
be delivered to Franklin because all of the goods were uniform items to be sold and delivered
directly to Franklin’s students and parents under the unexecuted contract. Sec. Amd. Compl. at
4 155. In other words, if the buyer under the oral agreement is Franklin, no goods were sold to
Franklin at all and § 672.201, Fla. Stat. does not save the oral agreement from the Statute of Frauds.
If the buyer is defined as Franklin’s students and/or parents, Planet T also failed to allege the price
of the goods sold to such a nonparty “buyer”’ exceeded $500. Under either scenario, Planet T’s oral
agreements are not exempted from the Statue of Frauds.
Furthermore, Planet T claims that the uniforms were specially manufactured (Id.);
however, Planet T does not allege that the “specially manufactured” items are not suitable for sale
to others in the ordinary course of the seller’s business. Planet T’s failure to plead this element of
the statute necessarily means Planet T failed to state a cause of action for Tortious Interference
with an Advantageous Business Relationship.
Finally, Planet T fails to allege any facts showing that, before notice of repudiation was
received and under circumstances which reasonably indicate that the goods are for the “buyer,”
Planet T made either a substantial beginning of their manufacture or commitments for their
procurement. Planet T merely alleges that “[b]ased upon the representations made by Franklin,
Planet T ordered and currently possesses inventory specifically allotted to Franklin that is valued
at over $100,000.00.” Sec. Amd. Compl. at § 51. The pleading is faulty because it contains no
material details identifying when the special manufacturing began and how those orders relate to
the January 24, 2013 notice Planet T received stating that Franklin would not be extending their
agreement. Sec. Amd. Compl. at §/ 52.
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FUERST ITTLEMAN Davip & JOSEPH
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)
Because the alleged oral contract violated the Statute of Frauds, it was unenforceable as a
matter of law. In addition, Planet T failed to properly plead the elements of § 672.201, Fla. Stat.,
which means that as a matter of law, the Statute of Frauds applies to the alleged oral contract. As
a matter of law, then, Count V must be dismissed.
Cc. Franklin performed the oral contract; the oral contract was not breached.
According to Planet T’s allegations, Franklin did not breach the alleged oral contract;
rather, Franklin performed when Franklin permitted Planet T to sell uniforms to Franklin’s
students and parents for a two year period. Sec. Amd. Compl. at § 20; 21; 28; 35; 83.
An axiomatic requriment for an action for breach of contract is a material breach. See
Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008)(An adequately pled
breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and
(3) damages.)(emphasis added).
Because there was no material breach of the alleged oral contract, an action for breach of
contract cannot lie. Count V must be dismissed.
IV. Count VI — Promissory Estoppel—Fails to State a Claim.
A. The oral agreement violated the Statute of Frauds and was unenforceable as a
matter of law; promissory estoppel does not save an oral contract that violates
the Statute of Frauds.
The Florida Supreme Court answered the following certified question in W.R. Grace &
Co. v. Geodata Services, Inc., 547 So. 2d 919 (Fla. 1989):
CAN THE DOCTRINE OF PROMISSORY ESTOPPEL BE APPLIED TO
ENFORCE ORAL PROMISES WHEN NECESSARY TO PREVENT
INJUSTICE IN SITUATIONS NOT COVERED BY THE STATUTE OF
FRAUDS WHERE A PROMISOR MAKES AFFIRMATIVE
REPRESENTATIONS WHICH HE REASONABLY SHOULD EXPECT
WOULD INDUCE THE PROMISEE INTO ACTION OR FORBEARANCE OF
A SUBSTANTIAL NATURE IF THE PROMISEE CAN SHOW THAT HE DID
IN FACT RELY ON THE REPRESENTATIONS TO HIS DETRIMENT?
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FUERST ITTLEMAN Davip & JOSEPH
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)
W.R. Grace & Co. v. Geodata Services, Inc., 547 So. 2d at 920.
The Court answered the question in the affirmative but declined to apply promissory
estoppel as mechanism to avoid the Statute of Frauds. W.R. Grace & Co. v. Geodata Services.
Inc., 547 So. 2d at 925.
As Franklin argued in detail above, the oral contract at issue here violates the Statute of
Frauds; therefore, promissory estoppel cannot be applied to save it. Count VI must be dismissed.
B. Franklin’s alleged promise was not definite as to terms and time.
According to the facts alleged in the Second Amended Complaint, the alleged oral contract
was based on Exhibit A, an unexecuted contract. Sec.Amd. Compl. at § 23. Also 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 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 { 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.)
The Florida Supreme Court refused to apply promissory estoppel when the alleged promise
(here, the oral contract) was “indefinite as to terms and time.” (emphasis in the original).
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FUERST ITTLEMAN Davip & JOSEPH
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)
W.R. Grace & Co. v. Geodata Services, Inc., 547 So. at 924. The Court also said that to find
promissory estoppel, “the evidence must be clear and convincing.” Id. at 925, Planet T fails to
meet this burden.
Here, Exhibit A shows that the parties had not agreed on the terms of the alleged oral
contract. When taken with the explicit claims in the Second Amended Complaint that details had
to be ironed out (Sec. Amd.Compl. at § 40), as a matter of law, Count VI must be dismissed as
failing to successfully plead a claim for promissory estoppel.
IV. Count XXII - Misappropriation of Trade Secrets—Fails to State a Claim.
The Florida Uniform Trade Secrets Act (“FUTSA”) “displace[s] conflicting tort,
restitutory, and other law of this state providing civil remedies for misappropriation of a trade
secret.” § 688.008(1), Fla. Stat. (Planet T’s claim does not fall within any of the exceptions to Fla.
Stat. § 688.008(1).) Therefore, FUTSA “preempts all claims based on misappropriation of trade
secrets.” Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 391 F. Supp. 2d 1148, 1167 (S.D. Fla.
2005); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271, 1291 (S.D.
Fla. 2001.
Planet T fails to plead the elements clearly laid out in FUTSA; therefore, Planet T’s reliance
on the pre-empted common law elements of a claim for misappropriation of trade secrets requires
dismissal of Count XVII.
Under the FUTSA, “misappropriation” is defined as follows:
(a) Acquisition of a trade secret of another by a person who knows or has
reason to know that the trade secret was acquired by improper means...
§ 688.002, Fla. Stat.
Planet T’s allegations fall flat when FUTSA is applied to the allegations in the Second
Amended Complaint. In paragraph 32, Planet T acknowledged that it “advised FRANKLIN that
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FUERST ITTLEMAN Davip & JOSEPH
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)
the records provided to FRANKLIN were to be kept confidential as they contained trade secret
information.” Under Florida law, Planet T “bears the burden of establishing the information
allegedly taken by [the defendant] is a trade secret and that it took reasonable steps to protect the
information.” VAS Aero Services, LLC v. Arroyo, 860 F. Supp. 2d 1349, 1358 (S.D. Fla. 2012).
The mere act of providing the records to Franklin entered the records into the public domain and
destroyed their alleged confidentiality.
FUTSA defines a trade secret as follows:
“Trade secret” means information, including a formula, pattern, compilation,
program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain
its secrecy.
(Emphasis added.)
§ 688.002, Fla. Stat.
Planet T has failed to satisfy the two prong test to establish its information constituted a
“trade secret.” In fact, Planet T 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 § 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
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FUERST ITTLEMAN Davip & JOSEPH
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)
desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by
the custodian of the public records.”)
Unless exempted, “‘all documents, papers, letters, maps, books, tapes, photographs, films,
sound recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or ordinance or in
connection with the transaction of official business by any agency” are public records. §
119.011(12), Fla. Stat, Planet T’s alleged “trade secrets” fall squarely within this definition.
The Florida Supreme Court held that “a public record [] is any material prepared in
connection with official agency business which is intended to perpetuate, communicate, or
formalize knowledge of some type.” Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc.,
379 So. 2d 633, 640 (Fla. 1980). Here, Franklin’s official business was to procure a uniform
vendor. The materials requested, which were voluntarily supplied to Franklin,
“communicated...knowledge of some type.” As a matter of law, then, the moment Planet T handed
over the alleged “trade secrets,” those materials became public records subject to inspection and
copying by anyone, i.e., they were no longer “secret.”
Furthermore, Planet T could not convert its material into trade secrets merely by claiming
they are confidential. Amd. Compl. at § 189. See Nat'l Collegiate Athletic Ass'n v. Associated
Press, 18 So. 3d 1201, 1208 (Fla. 1st 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.”)
The question of whether the material at issue is “a public record” is a matter of law. Media
Gen. Convergence, Inc. v. Chief Judge of Thirteenth Judicial Circuit, 840 So. 2d 1008, 1013 (Fla.
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FUERST ITTLEMAN Davip & JOSEPH
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)
2003) (“The determination of what constitutes a public record is a question of law entitled to de
novo review.”)
While exemptions to the Public Records Act exist, Planet T failed to plead that any of the
exemptions applied at the time the records were turned over.
Additionally, Planet T’s records may be construed as public records before they were
turned over to Franklin under the provisions of § 119.0701, Fla. Stat.:
(2) In addition to other contract requirements provided by law, each public agency
contract for services must include a provision that requires the contractor to comply
with public records laws, specifically to:
(a) Keep and maintain public records that ordinarily and necessarily would be
required by the public agency in order to perform the service.
(b) Provide the public with access to public records on the same terms and
conditions that the public agency would provide the records and at a cost that does
not exceed the cost provided in this chapter or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as authorized by
law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to the
public agency all public records in possession of the contractor upon termination of
the contract and destroy any duplicate public records that are exempt or confidential
and exempt from public records disclosure requirements. All records stored
electronically must be provided to the public agency in a format that is compatible
with the information technology systems of the public agency.
(3) Ifa contractor does not comply with a public records request, the public agency
shall enforce the contract provisions in accordance with the contract.
Planet T acknowledges that it provided services on behalf of Franklin:
...FRANKLIN's representatives promised that if PLANET T performed well, it
would sign a contract with PLANET T. PLANET T did in fact perform well as
evidenced by its results for FRANKLIN and received praise from parents during
the past two (2) school years.
Sec. Amd. Compl. at ¥ 50.
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FUERST ITTLEMAN Davip & JOSEPH
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)
On or around February 2013, FRANKLIN refused to send its students to PLANET
T for their school’s uniforms.
Sec. Amd. Compl. at { 53.
... FRANKLIN informed PLANET T that not only would it not receive a contract,
PLANET T would no longer be able to sell the FRANKLIN specially manufactured
uniforms it currently has in inventory after March 31, 2013.
Sec. Amd. Compl. at ¥ 54.
According to the Florida Attorney General, Planet T was already under the auspices of the
Public Records Act when it commenced selling and servicing Franklin customers:
The requirements of section 119.0701, Florida Statutes, apply to “’contractor[s]’
who contract with public agencies and are acting on behalf of the public agency in
providing those services. Thus, based on the terms of section 119.0701(1)(a),
Florida Statutes, the nature and scope of the services provided by a private
contractor determine whether he or she is acting on behalf of an agency and would
be subject to the requirements of the statute.
Thus, for those contractors who are subject to its provisions, the statute treats the
private contractor as one taking the place of or standing in the shoes of the public
agency, that is “acting on behalf of” the public agency, and requires that the private
entity comply with the same public records requirements as the public agency.
(Emphasis in the original.) Fla. Att'y Gen. Op. 2014-06 (2014)
Planet T sold uniforms to the parents of Franklin’s students under what amounts to an oral
licensing agreement, which makes Planet T, as a matter of law, a contractor under the Attorney
General’s opinion. Planet T’s inventory lists and its sales and margin information, which it
provided to Franklin voluntarily, became by operation of law, public records under the statute even
before they were turned over to Franklin.
To the extent that Franklin’s receipt of the alleged trade secrets did not confer public
records status on the material, Planet T still failed to plead any fact indicating that it took
reasonable steps to protect their “trade secrets,” such as citing, at the time the material was turned
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FUERST ITTLEMAN Davip & JOSEPH
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)
over, an exemption that deemed the alleged “trade secrets” non-disclosable under the Public
Records Act.
Planet T for a third time fails to plead a crucial element of a claim for misappropriation of
a trade secret, namely, that plaintiff took reasonable steps to protect the alleged trade secrets. Here,
at a minimum, Planet T failed to label the documents as confidential and exempt under Florida’s
Public Records Act. This failure is fatal to this claim. See § 688.002(4), Fla. Stat. (“Trade secret”
means information, including a formula, pattern, compilation, program, device, method, technique,
or process that...[i]s the subject of efforts that are reasonable under the circumstances to
maintain its secrecy.)(emphasis added); also see, Sepro Corp. v. Florida Dep't of Envtl. Prot., 839
So. 2d 781, 784 (Fla. 1st DCA 2003) (“The trade secret owner who fails to label a trade secret as
such, or otherwise to specify in writing upon delivery to a state agency that information which it
contends is confidential and exempt under the public records law is not to be disclosed, has not
taken measures or made efforts that are reasonable under the circumstances to maintain the
information's secrecy.”) Here, then, Planet T was required to take steps to ensure that their alleged
trade secrets could be kept confidential given the circumstances and it failed to do so.
Count XII fails because Planet T’s alleged trade secrets were exposed to the public by its
own voluntary act. Therefore, Franklin could not misappropriate them because they were lost
any status they may have had upon delivery to it. Planet T failed to state a cause of action for
misappropriation of “trade secrets” under the FUTSA and Count XVII must be dismissed.
Request for Attorney’s Fees
Franklin, 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.
19
FUERST ITTLEMAN Davip & JOSEPH
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, Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy
Charter School respectfully requests that this Honorable Court dismiss Counts I, IV, V, VI AND
XXII of Plaintiff Planet T Uniforms, Inc.’s Second Amended Complaint and to award Defendant
Franklin its attorney’s fees, if applicable, his costs incurred in defending this action, along with
any and all other relief this Court deems just and proper.
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@ fucrstlaw.com
E-mail: Tdavid@fuerstlaw.com
Secondary: dmuller@fuerstlaw.com
Counsel for Defendants
By: /s/ CHRISTOPHER M. DAVID
Florida Bar No. 985163
Thomas M. David
Florida Bar No. 20846
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 31, 2017, I electronically filed the foregoing
document using Florida’s eFiling Portal. I also certify that the foregoing document is being served
this day on all parties of record via the E-service list associated with this action
/s/ Christopher M. David
CHRISTOPHER M. DAVID
Florida Bar No. 985163
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FUERST ITTLEMAN Davip & JOSEPH
1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COM
Preview
Filing # 54505347 E-Filed 03/31/2017 03:50:46 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. / DEFENDANT FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL’S MOTION TO DISMISS COUNTS I, IV, V, VLAND XXII OF PLAINTIFF’S SECOND AMENDED COMPLAINT Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter School, (“Franklin”), by and through undersigned counsel, pursuant to Rule 1.420 of the Florida Rules of Civil Procedure hereby files and serves his Motion to Dismiss Counts I, IV, V, VI AND XXII of Plaintiff's Second Amended Complaint and states as follows: FUERST ITTLEMAN Davip & JOSEPH 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 3/31/2017 3:50:46 PM.****CASE NO.: CACE-14-001087 (04) LEGAL STANDARD: The purpose of a complaint is to advise the defendant of the nature of the cause of action asserted by the plaintiff. The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For the purpose of passing upon a motion to dismiss, the court must assume all the facts alleged in the complaint to be true. Consequently, a motion to dismiss a complaint must be decided on questions of law and questions of law only. The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good cause of action, and the court when faced with a motion to dismiss a complaint for failure to state a cause of action must confine itself strictly to the allegations within the four corners of the complaint. Kest v. Nathanson, 216 So. 2d 233, 235 (Fla. 4th DCA 1968) Introduction: Plaintiff filed its Second Amended Complaint on March 9, 2017. The second amended complaint fails to allege cognizable claims against Franklin and should therefore be dismissed in its entirety. L Count I — Fraudulent Misrepresentation—Fails to State a Claim. A. Planet T failed to identify a statement made by Rogers on behalf of Franklin that was false and that was known by Rogers to be false at the time it was made. To prevail on a claim for Fraudulent Misrepresentation, Planet T must plead and prove: (1) a false statement of fact; (2) known by the defendant to be false at the time that it was made; (3) made for the purpose of inducing the plaintiff to act in reliance thereon; (4) action by the plaintiff in reliance on the correctness of the representation; and (5) resulting damage or injury. (emphasis added). Madness, L.P. v. DiTocco Konstruction, Inc., 873 So. 2d 427, 429 (Fla. 4th DCA 2004); Nat'l Ventures, Inc. v. Water Glades 300 Condo. Ass'n. 847 So. 2d 1070, 1074 (Fla. 4th DCA 2003); Mosley v. Am. Med. Intern., Inc., 712 So. 2d 1149, 1151 (Fla. 4th DCA 1998) Planet T avers that Rogers is Franklin’s agent. Sec. Amd. Compl. at J 15. Planet T attributes the alleged false statements of Rogers to Franklin. Sec. Amd. Compl. at § 67. Nowhere in Planet 2 FUERST ITTLEMAN Davip & JOSEPH 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) T’s complaint does the plaintiffidentify any statement as being false and that was known by Rogers to be false at the time it was made. Certainly, Planet T identifies several statements it attributes to Rogers, but Planet T never alleges that any specific statement was false. Neither does Planet T allege that any specific statement made by Rogers was known by the defendant to be false at the time that it was made. Florida’s Rules of Civil Procedure demand that a plaintiff plead fraud with “such particularity as the circumstances may permit.” Fla. R. Civ. P. 1.120(b). “Particularity requires identifying the representation of fact and how the representation is false.” Batlemento v. Dove Fountain, Inc., 593 So. 2d 234, 238 (Fla. 5th DCA 1991). Even in its third incarnation, Planet T has failed the most basic test of whether a cause of action is sufficient as a matter of law. Because Planet T has failed once again to plead the elements of Fraudulent Misrepresentation, Count II must be dismissed. B. Planet T waived its claims against Franklin for fraudulent misrepresentation when it renewed the oral contract with knowledge of the prior alleged fraudulent conduct. The Defendants reject the notion that any agreement with the terms as alleged by the Plaintiff ever existed. Notwithstanding this position and assuming arguendo that the alleged “agreements” occurred, the Plaintiff's claims must fail based upon the allegations as pled in the Second Amended Complaint. In paragraph 28 of the Second Amended Complaint, Plaintiff confirms that Rogers, as Franklin’s agent, allegedly made an “oral promise to execute a contract following the 2010-2011 season.” Then, sometime later, Planet T “entered into the oral agreement for the 2012-2013 school year.” Sec. Amd. Compl. at § 83. By entering into the subsequent oral 3 FUERST ITTLEMAN Davip & JOSEPH 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) agreement', Planet T waived its alleged misrepresentation claim related to the prior alleged agreement. See Harpold v. Stock, 65 So. 2d 477, 478 (Fla. 1953) (“This court and the courts generally hold that the execution of a new contract respecting a former transaction waives any claim based on fraud.”) When Planet T entered into the subsequent oral contract with the admitted knowledge of Rogers’ alleged prior misrepresentations, the result is a waiver of those claims that are alleged to have arisen under the prior “oral contract.” Therefore, Planet T’s claim of fraudulent misrepresentation in Count II must be dismissed. c. Rogers’ alleged statements on Franklin’s behalf amount to non-actionable promises of future action. Since 1914, the law in Florida is that mere promises as to intended future action cannot satisfy the elements of a fraud or misrepresentation claim. Huffstetler v. Our Home Life Ins. Co., 65 So. 1 (Fla. 1914), Since Huffstetler, a long line of cases reinforces and expands upon its holding. In Brinkley v. Arnold, 123 So. 569, 570 (Fla. 1929), the Florida Supreme Court held that “[a] promise to do something in the future, though made by one party as a representation to another to enter into a contract, will not amount to a fraud in a legal sense.” Also see Sample v. Ward, 23 So. 2d 81, 85 (Fla. 1945) (holding that “an oral promise to do something in the future, though made by one party as a representation to induce another to enter into a contract, is not fraud in a legal sense.”); and, Steyr Daimler Puch of Am. v. A & A Bicycle Mart, Inc., 453 So. 2d 1149, 1150 (Fla. 4th DCA 1984) (“As a general rule fraud cannot be predicated upon a mere promise not performed.”) ' Regardless of whether the alleged oral agreement is derived from the unexecuted draft contract attached to the Second Amended Complaint as Exhibit A or from the alleged two-year oral agreement, the claims fail because of waiver or the expiration of the alleged agreement according to its terms. 4 FUERST ITTLEMAN Davip & JOSEPH 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) An exception to the general rule exists where a party has promised “to perform a material matter in the future [] without any intention of performing or made with the positive intention not to perform.” Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1372 (Fla. 4th DCA 1981). This exception does not apply here because Rogers did, in fact, perform when Franklin permitted Planet T to sell uniforms to Franklin’s students and parents for the entire two- year term of the alleged oral contract. Sec. Amd. Compl. at J 20; 21; 28; 35; 83. Viewed in the most positive light, Rogers merely promises on Franklin’s behalf to enter into a contract provided certain other events occurred and, ultimately, Franklin permitted Planet T to sell uniforms to Franklin’s students and parents for the entire two-year term of the alleged oral contract. Representations as to future conduct, without more, are not actionable as fraud. Thus, Planet T fails to state a cause of action because such a failed promise as a matter of law does not support a cause of action for fraudulent misrepresentation. Therefore, Count II must be dismissed. II. Count IV — Negligent Misrepresentation—Fails to State a Claim. A. Planet T failed to identify a statement made by Rogers on behalf of Franklin that was false and that was known by Rogers to be false at the time it was made. To “allege a viable cause of action for negligent misrepresentation, four elements must be present. A plaintiff must allege: that (1) there was a misrepresentation of material fact; (2) the representer either knew of the misrepresentation, made the misrepresentation without knowledge of its truth or falsity, or should have known the representation was false; (3) the representer intended to induce another to act on the misrepresentation; and (4) injury resulted to a party acting in justifiable reliance upon the misrepresentation. Florida Women's Med. Clinic, Inc. v. Sultan, 656 So. 2d 931, 933 (Fla. 4th DCA 1995) Planet T avers that Rogers is Franklin’s agent. Sec. Amd. Compl. at J 15. Planet T attributes the alleged false misrepresentations of Rogers to Franklin. Sec. Amd. Compl. at 67. Nowhere in 5 FUERST ITTLEMAN Davip & JOSEPH 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) Planet T’s complaint does the plaintiff identify any statement as being false and that Rogers knew the misrepresentation was known by Rogers to be false. Certainly, Planet T identifies several statements it attributes to Rogers, but Planet T never alleges that any specific statement was false. Neither does Planet T allege that any specific statement made by Rogers was known by the defendant to be false at the time that it was made. The allegations that Planet T enumerates in Count IV that attempt to attribute a misrepresentation to Franklin are facially conclusory because they are not linked to any material fact: ROGERS and SZNITKEN both made statements on behalf of FRANKLIN which were later determined to be fraudulent statements. Sec. Amd. Compl. at 101. FRANKLIN was negligent in making these statements because it should have known the statements were false. Sec. Amd. Compl. at § 108. Florida courts require more than conclusory statements to prove negligence. Warner v. Florida Jai Alai, Inc., 235 So. 2d 294, 295 (Fla. 1970)( a showing by more than a conclusory allegation is essential to the statement of a cause of action based on negligence). Additionally, Florida’s Rules of Civil Procedure demand that a plaintiff plead fraud with “such particularity as the circumstances may permit.” Fla. R. Civ. P. 1.120(b). “Particularity requires identifying the representation of fact and how the representation is false.” Batlemento v. Dove Fountain, Inc., 593 So. 2d 234, 238 (Fla. 5th DCA 1991). Also see Morgan v. W.R. Grace & Co.--Conn., 779 So. 2d 503, 506 (Fla. 2d DCA 2000)(We conclude that the requirement that fraud be pleaded with specificity also applies to claims for negligent misrepresentation.) Planet T has failed to plead with specificity the necessary elements of a claim for negligent misrepresentation and Count IV must be dismissed. 6 FUERST ITTLEMAN Davip & JOSEPH 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) B. Planet T waived its claims against Franklin for fraudulent misrepresentation when it renewed the oral contract with knowledge of the prior alleged fraudulent conduct. The Defendants reject the notion that any agreement with the terms as alleged by the Plaintiff ever existed. Notwithstanding this position and assuming arguendo that the alleged “agreements” occurred, the Plaintiff's claims must fail based upon the allegations as pled in the Second Amended Complaint. In paragraph 28 of the Second Amended Complaint, Plaintiff confirms that Rogers allegedly made an “oral promise to execute a contract following the 2010- 2011 season.” Then, sometime later, Planet T “entered into the oral agreement for the 2012-2013 school year.” Sec. Amd. Compl. at § 83. By entering into the subsequent oral agreement”, Planet T waived its alleged misrepresentation claim related to the prior alleged agreement. See Matusick v. DiSalvo, 82 So. 3d 1045, 1046 (Fla. 4th DCA 2011); Harpold v. Stock, 65 So. 2d 477, 478 (Fla. 1953) (“This court and the courts generally hold that the execution of a new contract respecting a former transaction waives any claim based on fraud.”); Benn v. Key W. Propane Gas Corp., 72 So.2d 910, 913 (Fla.1954). When Planet T entered into the subsequent oral contract with the admitted knowledge of Rogers’ alleged prior misrepresentations on behalf of Franklin, the result is a waiver of those claims that are alleged to have arisen under the prior “oral contract.” Therefore, Planet T’s claim of negligent misrepresentation in Count II must be dismissed. ? Regardless of whether the alleged oral agreement is derived from the unexecuted draft contract attached to the Second Amended Complaint as Exhibit A or from the alleged two-year oral agreement, the claims fail because of waiver or the expiration of the alleged agreement according to its terms. 7 FUERST ITTLEMAN Davip & JOSEPH 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) Cc Rogers’ alleged statements on behalf of Franklin amount to non-actionable promises of future action. Since 1914, the law in Florida is that mere promises as to intended future action cannot satisfy the elements of a fraud or misrepresentation claim. Huffstetler v. Our Home Life Ins. Co., 65 So. 1 (Fla. 1914). Since Huffstetler, a long line of cases reinforces and expands upon its holding. In Brinkley v. Arnold, 123 So. 569, 570 (Fla. 1929), the Florida Supreme Court held that “[a] promise to do something in the future, though made by one party as a representation to another to enter into a contract, will not amount to a fraud in a legal sense.” An exception to the general rule exists where a party has promised “to perform a material matter in the future [] without any intention of performing or made with the positive intention not to perform.” Vance v. Indian Hammock Hunt & Riding Club, Ltd., 403 So. 2d 1367, 1372 (Fla. 4th DCA 1981). This exception does not apply here because Rogers did, in fact, perform when Franklin permitted Planet T to sell uniforms to Franklin’s students and parents for the entire two- year term of the alleged oral contract. Sec. Amd. Compl. at {fj 20; 21; 28; 35; 83. Viewed in the most positive light, Rogers merely promises on behalf of Franklin to enter into a contract provided certain other events occurred and, ultimately, Franklin permitted Planet T to sell uniforms to Franklin’s students and parents for the entire two-year term of the alleged oral contract. Representations as to future conduct, without more, are not actionable as fraud. Thus, Planet T fails to state a cause of action because such a failed promise as a matter of law does not support a cause of action for negligent misrepresentation. Therefore, Count II must be dismissed. III. | Count V - Breach of Oral Contract—Fails to State a Claim. A. Franklin did not breach the oral contract because it expired. Planet T’s claim that Franklin breached alleged oral contract fails because the alleged oral contracts were for one-year terms. See Sec. Amd. Compl. at §{] 20; 21; 28; 35; 83. Franklin 8 FUERST ITTLEMAN Davip & JOSEPH 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) permitted Planet T to sell uniforms to its students and parents from March of 2012 (Sec. Amd. Compl. at § 112) through March 31, 2013 (Sec. Amd. Compl. at j 116). As a matter of law, then there was no breach and Count V must be dismissed. B. The oral agreement violated the statute of frauds and was unenforceable as a matter of law. In Florida, the Statute of Frauds dictates that “[n]o action shall be brought ... upon any agreement that is not to be performed within the space of | year from the making thereof ... unless the agreement or promise ... [is] in writing....” § 725.01, Fla. Stat. Here, the unexecuted contract was to be performed over the course of a minimum of two years*. Because the oral agreement extended beyond one year, the Statute of Frauds applies. Steinberg v. Kearns, 907 So. 2d 691, 693 (Fla. 4th DCA 2005) (“[T]he statute of frauds applies only to contracts not to be performed on either side within the year, and has no application to contracts which by intent were fully performed within the year on one side.”) The purpose of the statute is to “intercept the frequency and success of actions based on nothing more than loose verbal statements or mere innuendos.” Tanenbaum _v. Biscayne Osteopathic Hosp., Inc., 190 So.2d 777, 779 (Fla.1966) (quoting Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937). The court in Fin. Healthcare Associates, Inc. v. Pub. Health Trust of Miami-Dade County, 488 F. Supp. 2d 1231, 1239 (S.D. Fla. 2007), when faced with similar circumstances and applying Florida law, found that a “[c]ontract ... to be performed over the course of three years [made] the Statute of Frauds applicable.” Also see Coleman Co., Inc. v. Cargil Intern. Corp., 731 So. 2d 2, 3 3 The unexecuted contract’s term is disputed according to Exhibit A to the Second Amended Complaint, which shows a draft with the four year proposed term lined through and “two year” inserted. Sec. Amd. Compl. Ex. A at 2(a). 9 FUERST ITTLEMAN Davip & JOSEPH 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) (Fla. 3d DCA 1998) (holding that where the entire term of the contract was for over one year, such an oral contract is unenforceable pursuant to the Statute of Frauds). Planet T attempts without success to save the oral agreement from the Statute of Frauds by alleging the following: FRANKLIN and PLANET T had a business relationship. PLANET T supplied specially manufactured uniforms and FRANKLIN was required to send its students to order uniforms exclusively from PLANET T. Sec. Amd. Compl. at 4 155. Section 672.201 (3)(a), Fla. Stat., provides as follows: (1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his or her authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing. (3) A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects is enforceable: (a) If the goods are to be specially manufactured for the buyer and are not suitable for sale to others in the ordinary course of the seller’s business and the seller, before notice of repudiation is received and under circumstances which reasonably indicate that the goods are for the buyer, has made either a substantial beginning of their manufacture or commitments for their procurement. (Emphasis added.) For § 672.201, Fla. Stat. to save an oral agreement for a term exceeding one-year, Planet T must allege material facts showing that (1) the alleged oral agreement was for the sale of goods for the price of $500 or more; or (2) the goods “are to be specially manufactured for the buyer.” Id. Planet T fails to allege or provide any material facts showing that the sale for the price of goods exceeded $500. Planet T does claim that it “ordered inventory...that was valued at over 10 FUERST ITTLEMAN Davip & JOSEPH 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) $100,000.00” (Sec. Amd. Compl. at § 51) but never claims that the goods it sold to Franklin had a price of $500 or more. Indeed, the unexecuted contract contains no sales price for any goods to be delivered to Franklin because all of the goods were uniform items to be sold and delivered directly to Franklin’s students and parents under the unexecuted contract. Sec. Amd. Compl. at 4 155. In other words, if the buyer under the oral agreement is Franklin, no goods were sold to Franklin at all and § 672.201, Fla. Stat. does not save the oral agreement from the Statute of Frauds. If the buyer is defined as Franklin’s students and/or parents, Planet T also failed to allege the price of the goods sold to such a nonparty “buyer”’ exceeded $500. Under either scenario, Planet T’s oral agreements are not exempted from the Statue of Frauds. Furthermore, Planet T claims that the uniforms were specially manufactured (Id.); however, Planet T does not allege that the “specially manufactured” items are not suitable for sale to others in the ordinary course of the seller’s business. Planet T’s failure to plead this element of the statute necessarily means Planet T failed to state a cause of action for Tortious Interference with an Advantageous Business Relationship. Finally, Planet T fails to allege any facts showing that, before notice of repudiation was received and under circumstances which reasonably indicate that the goods are for the “buyer,” Planet T made either a substantial beginning of their manufacture or commitments for their procurement. Planet T merely alleges that “[b]ased upon the representations made by Franklin, Planet T ordered and currently possesses inventory specifically allotted to Franklin that is valued at over $100,000.00.” Sec. Amd. Compl. at § 51. The pleading is faulty because it contains no material details identifying when the special manufacturing began and how those orders relate to the January 24, 2013 notice Planet T received stating that Franklin would not be extending their agreement. Sec. Amd. Compl. at §/ 52. 11 FUERST ITTLEMAN Davip & JOSEPH 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) Because the alleged oral contract violated the Statute of Frauds, it was unenforceable as a matter of law. In addition, Planet T failed to properly plead the elements of § 672.201, Fla. Stat., which means that as a matter of law, the Statute of Frauds applies to the alleged oral contract. As a matter of law, then, Count V must be dismissed. Cc. Franklin performed the oral contract; the oral contract was not breached. According to Planet T’s allegations, Franklin did not breach the alleged oral contract; rather, Franklin performed when Franklin permitted Planet T to sell uniforms to Franklin’s students and parents for a two year period. Sec. Amd. Compl. at § 20; 21; 28; 35; 83. An axiomatic requriment for an action for breach of contract is a material breach. See Friedman v. New York Life Ins. Co., 985 So. 2d 56, 58 (Fla. 4th DCA 2008)(An adequately pled breach of contract action requires three elements: (1) a valid contract; (2) a material breach; and (3) damages.)(emphasis added). Because there was no material breach of the alleged oral contract, an action for breach of contract cannot lie. Count V must be dismissed. IV. Count VI — Promissory Estoppel—Fails to State a Claim. A. The oral agreement violated the Statute of Frauds and was unenforceable as a matter of law; promissory estoppel does not save an oral contract that violates the Statute of Frauds. The Florida Supreme Court answered the following certified question in W.R. Grace & Co. v. Geodata Services, Inc., 547 So. 2d 919 (Fla. 1989): CAN THE DOCTRINE OF PROMISSORY ESTOPPEL BE APPLIED TO ENFORCE ORAL PROMISES WHEN NECESSARY TO PREVENT INJUSTICE IN SITUATIONS NOT COVERED BY THE STATUTE OF FRAUDS WHERE A PROMISOR MAKES AFFIRMATIVE REPRESENTATIONS WHICH HE REASONABLY SHOULD EXPECT WOULD INDUCE THE PROMISEE INTO ACTION OR FORBEARANCE OF A SUBSTANTIAL NATURE IF THE PROMISEE CAN SHOW THAT HE DID IN FACT RELY ON THE REPRESENTATIONS TO HIS DETRIMENT? 12 FUERST ITTLEMAN Davip & JOSEPH 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) W.R. Grace & Co. v. Geodata Services, Inc., 547 So. 2d at 920. The Court answered the question in the affirmative but declined to apply promissory estoppel as mechanism to avoid the Statute of Frauds. W.R. Grace & Co. v. Geodata Services. Inc., 547 So. 2d at 925. As Franklin argued in detail above, the oral contract at issue here violates the Statute of Frauds; therefore, promissory estoppel cannot be applied to save it. Count VI must be dismissed. B. Franklin’s alleged promise was not definite as to terms and time. According to the facts alleged in the Second Amended Complaint, the alleged oral contract was based on Exhibit A, an unexecuted contract. Sec.Amd. Compl. at § 23. Also 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 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 { 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.) The Florida Supreme Court refused to apply promissory estoppel when the alleged promise (here, the oral contract) was “indefinite as to terms and time.” (emphasis in the original). 13 FUERST ITTLEMAN Davip & JOSEPH 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) W.R. Grace & Co. v. Geodata Services, Inc., 547 So. at 924. The Court also said that to find promissory estoppel, “the evidence must be clear and convincing.” Id. at 925, Planet T fails to meet this burden. Here, Exhibit A shows that the parties had not agreed on the terms of the alleged oral contract. When taken with the explicit claims in the Second Amended Complaint that details had to be ironed out (Sec. Amd.Compl. at § 40), as a matter of law, Count VI must be dismissed as failing to successfully plead a claim for promissory estoppel. IV. Count XXII - Misappropriation of Trade Secrets—Fails to State a Claim. The Florida Uniform Trade Secrets Act (“FUTSA”) “displace[s] conflicting tort, restitutory, and other law of this state providing civil remedies for misappropriation of a trade secret.” § 688.008(1), Fla. Stat. (Planet T’s claim does not fall within any of the exceptions to Fla. Stat. § 688.008(1).) Therefore, FUTSA “preempts all claims based on misappropriation of trade secrets.” Alphamed Pharm. Corp. v. Arriva Pharm., Inc., 391 F. Supp. 2d 1148, 1167 (S.D. Fla. 2005); Del Monte Fresh Produce Co. v. Dole Food Co., Inc., 136 F. Supp. 2d 1271, 1291 (S.D. Fla. 2001. Planet T fails to plead the elements clearly laid out in FUTSA; therefore, Planet T’s reliance on the pre-empted common law elements of a claim for misappropriation of trade secrets requires dismissal of Count XVII. Under the FUTSA, “misappropriation” is defined as follows: (a) Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means... § 688.002, Fla. Stat. Planet T’s allegations fall flat when FUTSA is applied to the allegations in the Second Amended Complaint. In paragraph 32, Planet T acknowledged that it “advised FRANKLIN that 14 FUERST ITTLEMAN Davip & JOSEPH 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) the records provided to FRANKLIN were to be kept confidential as they contained trade secret information.” Under Florida law, Planet T “bears the burden of establishing the information allegedly taken by [the defendant] is a trade secret and that it took reasonable steps to protect the information.” VAS Aero Services, LLC v. Arroyo, 860 F. Supp. 2d 1349, 1358 (S.D. Fla. 2012). The mere act of providing the records to Franklin entered the records into the public domain and destroyed their alleged confidentiality. FUTSA defines a trade secret as follows: “Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that: (a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and (b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. (Emphasis added.) § 688.002, Fla. Stat. Planet T has failed to satisfy the two prong test to establish its information constituted a “trade secret.” In fact, Planet T 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 § 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 15 FUERST ITTLEMAN Davip & JOSEPH 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) desiring to do so, at any reasonable time, under reasonable conditions, and under supervision by the custodian of the public records.”) Unless exempted, “‘all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency” are public records. § 119.011(12), Fla. Stat, Planet T’s alleged “trade secrets” fall squarely within this definition. The Florida Supreme Court held that “a public record [] is any material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge of some type.” Shevin v. Byron, Harless, Schaffer, Reid & Associates, Inc., 379 So. 2d 633, 640 (Fla. 1980). Here, Franklin’s official business was to procure a uniform vendor. The materials requested, which were voluntarily supplied to Franklin, “communicated...knowledge of some type.” As a matter of law, then, the moment Planet T handed over the alleged “trade secrets,” those materials became public records subject to inspection and copying by anyone, i.e., they were no longer “secret.” Furthermore, Planet T could not convert its material into trade secrets merely by claiming they are confidential. Amd. Compl. at § 189. See Nat'l Collegiate Athletic Ass'n v. Associated Press, 18 So. 3d 1201, 1208 (Fla. 1st 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.”) The question of whether the material at issue is “a public record” is a matter of law. Media Gen. Convergence, Inc. v. Chief Judge of Thirteenth Judicial Circuit, 840 So. 2d 1008, 1013 (Fla. 16 FUERST ITTLEMAN Davip & JOSEPH 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) 2003) (“The determination of what constitutes a public record is a question of law entitled to de novo review.”) While exemptions to the Public Records Act exist, Planet T failed to plead that any of the exemptions applied at the time the records were turned over. Additionally, Planet T’s records may be construed as public records before they were turned over to Franklin under the provisions of § 119.0701, Fla. Stat.: (2) In addition to other contract requirements provided by law, each public agency contract for services must include a provision that requires the contractor to comply with public records laws, specifically to: (a) Keep and maintain public records that ordinarily and necessarily would be required by the public agency in order to perform the service. (b) Provide the public with access to public records on the same terms and conditions that the public agency would provide the records and at a cost that does not exceed the cost provided in this chapter or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (d) Meet all requirements for retaining public records and transfer, at no cost, to the public agency all public records in possession of the contractor upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the public agency in a format that is compatible with the information technology systems of the public agency. (3) Ifa contractor does not comply with a public records request, the public agency shall enforce the contract provisions in accordance with the contract. Planet T acknowledges that it provided services on behalf of Franklin: ...FRANKLIN's representatives promised that if PLANET T performed well, it would sign a contract with PLANET T. PLANET T did in fact perform well as evidenced by its results for FRANKLIN and received praise from parents during the past two (2) school years. Sec. Amd. Compl. at ¥ 50. 17 FUERST ITTLEMAN Davip & JOSEPH 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) On or around February 2013, FRANKLIN refused to send its students to PLANET T for their school’s uniforms. Sec. Amd. Compl. at { 53. ... FRANKLIN informed PLANET T that not only would it not receive a contract, PLANET T would no longer be able to sell the FRANKLIN specially manufactured uniforms it currently has in inventory after March 31, 2013. Sec. Amd. Compl. at ¥ 54. According to the Florida Attorney General, Planet T was already under the auspices of the Public Records Act when it commenced selling and servicing Franklin customers: The requirements of section 119.0701, Florida Statutes, apply to “’contractor[s]’ who contract with public agencies and are acting on behalf of the public agency in providing those services. Thus, based on the terms of section 119.0701(1)(a), Florida Statutes, the nature and scope of the services provided by a private contractor determine whether he or she is acting on behalf of an agency and would be subject to the requirements of the statute. Thus, for those contractors who are subject to its provisions, the statute treats the private contractor as one taking the place of or standing in the shoes of the public agency, that is “acting on behalf of” the public agency, and requires that the private entity comply with the same public records requirements as the public agency. (Emphasis in the original.) Fla. Att'y Gen. Op. 2014-06 (2014) Planet T sold uniforms to the parents of Franklin’s students under what amounts to an oral licensing agreement, which makes Planet T, as a matter of law, a contractor under the Attorney General’s opinion. Planet T’s inventory lists and its sales and margin information, which it provided to Franklin voluntarily, became by operation of law, public records under the statute even before they were turned over to Franklin. To the extent that Franklin’s receipt of the alleged trade secrets did not confer public records status on the material, Planet T still failed to plead any fact indicating that it took reasonable steps to protect their “trade secrets,” such as citing, at the time the material was turned 18 FUERST ITTLEMAN Davip & JOSEPH 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) over, an exemption that deemed the alleged “trade secrets” non-disclosable under the Public Records Act. Planet T for a third time fails to plead a crucial element of a claim for misappropriation of a trade secret, namely, that plaintiff took reasonable steps to protect the alleged trade secrets. Here, at a minimum, Planet T failed to label the documents as confidential and exempt under Florida’s Public Records Act. This failure is fatal to this claim. See § 688.002(4), Fla. Stat. (“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that...[i]s the subject of efforts that are reasonable under the circumstances to maintain its secrecy.)(emphasis added); also see, Sepro Corp. v. Florida Dep't of Envtl. Prot., 839 So. 2d 781, 784 (Fla. 1st DCA 2003) (“The trade secret owner who fails to label a trade secret as such, or otherwise to specify in writing upon delivery to a state agency that information which it contends is confidential and exempt under the public records law is not to be disclosed, has not taken measures or made efforts that are reasonable under the circumstances to maintain the information's secrecy.”) Here, then, Planet T was required to take steps to ensure that their alleged trade secrets could be kept confidential given the circumstances and it failed to do so. Count XII fails because Planet T’s alleged trade secrets were exposed to the public by its own voluntary act. Therefore, Franklin could not misappropriate them because they were lost any status they may have had upon delivery to it. Planet T failed to state a cause of action for misappropriation of “trade secrets” under the FUTSA and Count XVII must be dismissed. Request for Attorney’s Fees Franklin, 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. 19 FUERST ITTLEMAN Davip & JOSEPH 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, Defendant Florida Charter Foundation, Inc. d/b/a Franklin Academy Charter School respectfully requests that this Honorable Court dismiss Counts I, IV, V, VI AND XXII of Plaintiff Planet T Uniforms, Inc.’s Second Amended Complaint and to award Defendant Franklin its attorney’s fees, if applicable, his costs incurred in defending this action, along with any and all other relief this Court deems just and proper. 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@ fucrstlaw.com E-mail: Tdavid@fuerstlaw.com Secondary: dmuller@fuerstlaw.com Counsel for Defendants By: /s/ CHRISTOPHER M. DAVID Florida Bar No. 985163 Thomas M. David Florida Bar No. 20846 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 31, 2017, I electronically filed the foregoing document using Florida’s eFiling Portal. I also certify that the foregoing document is being served this day on all parties of record via the E-service list associated with this action /s/ Christopher M. David CHRISTOPHER M. DAVID Florida Bar No. 985163 20 FUERST ITTLEMAN Davip & JOSEPH 1001 BRICKELL BAY DRIVE, Suite 3112, MIAMI, FL 33131 * T: 305.350.5690 © F: 305.371.8989 * WWW.FUERSTLAW.COM