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Filing # 30654638 E-Filed 08/10/2015 11:06:29 AM
IN THE CIRCUIT COURT OF THE 17'4 JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-14-001087 (04)
PLANET T UNIFORMS, INC.,
Plaintiff,
vz.
FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL,
Defendant.
FLORIDA CHARTER FOUNDATION, INC.,
D/B/A FRANKLIN ACADEMY CHARTER
SCHOOL,
Counter-Plaintiff,
v.
PLANET T UNIFORMS, INC.,
Counter-Defendant.
/
ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT!
The Defendant, Florida Charter Foundation, Inc. D/B/A Franklin Academy
Charter School (“FCF”), by and through undersigned counsel hereby files and serves its
Answer and Affirmative Defenses to the Amended Complaint and in support thereof
submits as follows:
Any allegation, or part thereof, not specifically admitted is denied.
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 8/10/2015 11:06:29 AM.****CASE NO.: CACE-14-001087 (04)
1. FCF admits that the Plaintiff has attempted to assert a claim for damages.
FCF denies that that the Plaintiff has successfully done so and therefore denies the
allegations contained in paragraph lof the Amended Complaint.
2. FCF is without knowledge as to the allegations contained in paragraph 2 of
the Amended Complaint and therefore denies the same and demands strict proof thereof.
3. FCF admits the allegations contained in paragraph 3 of the Amended
Complaint.
4. FCF admits the allegations contained in paragraph 4 of the Amended
Complaint.
5. FCF is without knowledge as to the allegations contained in paragraph 5 of
the Amended Complaint and therefore denies the same and demands strict proof thereof.
6. FCF is without knowledge as to the allegations contained in paragraph 6 of
the Amended Complaint and therefore denies the same and demands strict proof thereof.
7. FCF admits the allegations contained in paragraph 7 of the Amended
Complaint.
8. FCF admits the allegations contained in paragraph 8 of the Amended
Complaint.
9. The allegations contained in paragraph 9 are admitted only for purpose of
venue.
10. FCF denies the allegations contained in paragraph 10 of the Amended
Complaint.
GENERAL ALLEGATIONS
2CASE NO.: CACE-14-001087 (04)
11. FCF admits that Planet T is a corporation. FCF is without knowledge as to
the remaining allegations contained in paragraph 11 and therefore denies the same.
12. FCF admits the Franklin Academy operates a charter school in Broward
County, Florida.
13. FCF admits that Discovery Schools provides services to FCF based upon a
written agreement between them.
14. FCF admits that iUniforms sells school uniforms.
15. FCF admits that Rogers is the CEO of Discovery Schools. FCF denies the
remaining allegations contained in paragraph 15.
16. FCF admits that Sznitken is a director of FCF and that FCF does business as
Franklin Academy Charter School.
17. FCF admits that it was contacted by Plaintiff and that Plaintiff submitted a
proposal to sell certain school uniforms to the parents of students at Franklin Academy.
FCF denies the remaining allegations contained in paragraph 17 of the Amended
Complaint.
18. FCF denies the allegations contained in paragraph 18 of the Amended
Complaint.
19. FCF is without knowledge as to the allegations contained in paragraph 19
of the Amended Complaint and therefore denies the same and demands strict proof
thereof.CASE NO.: CACE-14-001087 (04)
20. FCF is without knowledge as to the allegations contained in paragraph 20
of the Amended Complaint and therefore denies the same and demands strict proof
thereof.
21. FCF denies the allegations contained in paragraph 21 of the Amended
Complaint.
22. | FCF admits that a proposal was submitted by Planet T by which Planet T
proposed to be licensed by FCF to sell clothing to the parents of students who attended
Franklin Academy. FCF denies that the proposal was acceptable or that anyone on behalf
of Planet T agreed to its terms. FCF admits that Planet T sold uniforms to parents of FCF
students. FCF denies the remaining allegations contained in paragraph 22 of the
Amended Complaint.
23. FCF admits that Planet T sought meetings with FCF regarding its proposal.
FCF denies that it “delayed” meeting with Planet T. FCF denies that it indicated in any
way that the Planet T proposal was acceptable or that it would be accepted. FCF denies
the remaining allegations contained in paragraph 23 of the Amended Complaint.
24. FCF admits that the Planet T proposal was not accepted in May of 2011. FCF
denies the remaining allegations contained in paragraph 24 of the Amended Complaint.
25. FCF denies the allegations contained in paragraph 25 of the Amended
Complaint.
26. FCF admits that Planet T sought additional meetings regarding its
proposal. FCF denies the remaining allegations contained in paragraph 26 of the
Amended Complaint.CASE NO.: CACE-14-001087 (04)
27. FCF denies the allegations contained in paragraph 27 of the Amended
Complaint.
28. FCF denies that it was provided any “privileged sales or margin
information.” FCF is without knowledge as to the state of mind of Planet T at the time.
FCF denies the remaining allegations contained in paragraph 28 of the Amended
Complaint.
29. | FCF admits that it had no need to meet with Planet T because no agreement
was reached and Planet T’s proposals had not been accepted. FCF admits that in or about
March of 2012 Planet T contacted FCF and requested to discuss a proposal for Planet T to
act as uniform supplier for the upcoming school year. FCF denies that an agreement was
reached at that time. The remaining allegations contained in paragraph 29 of the
Amended Complaint denied.
30. | FCF is without knowledge as to the allegations contained in paragraph 30
of the Amended Complaint and therefore denies the same and demands strict proof
thereof.
31. FCF does not believe that a meeting occurred in September of 2012 with
Planet T. FCF denies the remaining allegations contained in paragraph 31 of the
Amended Complaint.
32. | FCF admits that Mr. Sznitken contacted Planet T to set up a visit to Planet
T’s store. FCF denies the remaining allegations contained in paragraph 32 of the
Amended Complaint.CASE NO.: CACE-14-001087 (04)
33. FCF admits that Mr. Sznitken is an FCF employee with the title of
“Director.” FCF further admits that Mr. Sznitken’s duties involve contact with entities
seeking to do enter into agreements with FCF. FCF denies the remaining allegations
contained in paragraph 33 of the Amended Complaint.
34. FCF denies the allegations contained in paragraph 34 of the Complaint.
35. | FCF admits that it requested certain items that the Plaintiff sold to FCF
students. FCF further admits that Plaintiff paid $2,913.40 to satisfy Plaintiff's invoice
#1109753 for the purchased items. FCF denies the remaining allegations contained in
paragraph 35 of the Amended Complaint.
36. | FCF admits that it advised Plaintiff orally on or about January 24, 2013 that
it would not continue the arrangement into the 2013-2014 school year. FCF denies the
remaining allegations contained in paragraph 36 of the Amended Complaint.
37. FCF denies the allegations contained in paragraph 37 of the Amended
Complaint.
38. | FCF denies the allegations contained in paragraph 38 of the Amended
Complaint.
39. FCF denies that it agreed to sign the contract submitted to it by the Plaintiff
or that it agreed to the terms offered by the Plaintiff. Furthermore, FCF denies that the
Plaintiff performed adequately. FCF denies the remaining allegations contained in
paragraph 39 of the Amended Complaint.CASE NO.: CACE-14-001087 (04)
40. FCF is without knowledge as to what items or inventory the Plaintiff
ordered or its state of mind when doing so. FCF denies the remaining allegations
contained in paragraph 40 of the Amended Complaint.
41. | FCF admits that it notified Plaintiff that it could not sell product displaying
FCF’s protected logos after March 31, 2103. FCF admits that it was under no obligation to
guarantee the alleged purchases and that it refused to do so. FCF is without knowledge
as to the remaining allegations contained in paragraph 41 of the Amended Complaint
and therefore denies the same and demands strict proof thereof.
42. FCF is without knowledge as to what items were allegedly ordered by
Plaintiff. FCF denies that any items were ordered for FCF as all goods were sold to the
parents of students of Franklin and not FCF. FCF denies the remaining allegations
contained in paragraph 42 of the Amended Complaint.
43. | FCF 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. FCF denies the remaining allegations contained in paragraph 43 of the
Amended Complaint.
44, FCF is without knowledge as to the allegations contained in paragraph 44
of the Amended Complaint and therefore denies the same and demands strict proof
thereof.
45. FCF admits that the Chairman of the Board of Directors of Franklin
Academy Charter School communicated with parents on August 12, 2013. FCF denies
the remaining the allegations contained in paragraph 45 of the Amended Complaint.
7CASE NO.: CACE-14-001087 (04)
46. FCF 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 46, including all sub-parts, attempt to characterize said
testimony, FCF denies those allegations.
47. FCF denies the allegations contained in paragraph 47 of the Amended
Complaint.
48. FCF denies the allegations contained in paragraph 48 of the Amended
Complaint.
49. FCF denies the allegations contained in paragraph 49 of the Amended
Complaint.
50. FCF denies the allegations contained in paragraph 50 of the Amended
Complaint.
51. FCF is without knowledge as to the allegations contained in paragraph 51
and therefore denies the same and demands strict proof thereof.
52. FCF denies the allegations contained in paragraph 52 of the Amended
Complaint.
53. FCF 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)
Defendant incorporates its responses to paragraphs 1 through 53 as if fully set
forth herein.CASE NO.: CACE-14-001087 (04)
54. FCF admits that it discussed signing a contract with Plaintiff and that the
parties exchanged versions of a contract. However, FCF denies that the parties executed
a contract or had a mutual understanding of the terms of a contract. FCF admits that the
Franklin Academy Charter School’s Board of Directors entertained a proposal and an
addendum from the Plaintiff but denies that any agreement as alleged by the Plaintiff
was entered into. FCF specifically denies that the Franklin Academy Charter School’s
Board of Directors agreed that Plaintiff would be the exclusive uniform vendor. FCF
denies the remaining allegations contained in paragraph 54 of the Amended Complaint.
55. FCF denies the allegations contained in paragraph 55 of the Amended
Complaint.
56. | FCF denies the allegations contained in paragraph 56 of the Amended
Complaint.
57. FCFis without knowledge as to the state of mind of the Plaintiff. FCF denies
the remaining allegations contained in paragraph 57 of the Amended Complaint.
58. FCF denies the allegations contained in paragraph 58 of the Amended
Complaint.
59. FCF denies the allegations contained in paragraph 59 of the Amended
Complaint.
60. FCF denies the allegations contained in paragraph 60 of the Amended
Complaint.
61. FCF denies the allegations contained in paragraph 61 of the Amended
Complaint.CASE NO.: CACE-14-001087 (04)
62. FCF denies the allegations contained in paragraph 62 of the Amended
Complaint.
63. | FCF denies the allegations contained in paragraph 63 of the Amended
Complaint.
WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor
and against the Plaintiff and to award FCF its costs incurred in defending this action.
COUNT II
FRAUDULENT MISREPRESENTATION
(Against Rogers Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 64 through 74 are denied.
COUNT II
FRAUDULENT MISREPRESENTATION
(Against Sznitken Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 75 through 82 are denied.
COUNT IV
NEGLIGENT MISREPRESENTATION
(Against Franklin only)
Defendant incorporates its responses to paragraphs 1 through 53 as if fully set
forth herein.
83. | FCF admits that it discussed signing a contract with Plaintiff and that the
parties exchanged versions of a contract. However, FCF denies that the parties executed
10CASE NO.: CACE-14-001087 (04)
a contract or had a mutual understanding of the terms of a contract. FCF admits that the
Franklin Academy Charter School’s Board of Directors entertained a proposal and an
addendum from the Plaintiff but denies that any agreement as alleged by the Plaintiff
was entered into. FCF specifically denies that the Franklin Academy Charter School’s
Board of Directors agreed that Plaintiff would be the exclusive uniform vendor. FCF
denies the remaining allegations contained in paragraph 83 of the Amended Complaint.
84. FCF denies the allegations contained in paragraph 84 of the Amended
Complaint.
85. FCF denies the allegations contained in paragraph 85 of the Amended
Complaint.
86. | FCF denies the allegations contained in paragraph 86 of the Amended
Complaint.
87. FCF admits that it requested certain items that the Plaintiff sold to FCF
students. FCF further admits that Plaintiff paid $2,913.40 to satisfy Plaintiff's invoice
#1109753 for the purchased items. FCF denies the remaining allegations contained in
paragraph 87 of the Amended Complaint.
88. FCF denies making the alleged statements and therefore denies the
allegations contained in paragraph 88 of the Amended Complaint.
89. FCF denies making the alleged statements and therefore denies the
allegations contained in paragraph 89 of the Amended Complaint.
90. FCF denies making the alleged statements and therefore denies the
allegations contained in paragraph 90 of the Amended Complaint.
11CASE NO.: CACE-14-001087 (04)
91. FCF denies the allegations contained in paragraph 91 of the Amended
Complaint.
WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor
and against the Plaintiff and to award FCF its costs incurred in defending this action.
COUNT V
BREACH OF ORAL CONTRACT
(Against Franklin Only)
Defendant incorporates its responses to paragraphs 1 through 53 as if fully set
forth herein.
92. FCF denies the allegations contained in paragraph 92 of the Amended
Complaint.
93. FCF denies the allegations contained in paragraph 93 of the Amended
Complaint.
94. FCF admits that it notified Plaintiff that it could not sell product displaying
FCF’s protected logos after March 31, 2103. FCF denies that there was an agreement to
“continue” with Plaintiff for any purpose at any time.
95. FCF denies the existence of the alleged oral agreement and denies the
allegations contained in paragraph 95 of the Amended Complaint.
96. The allegations contained in paragraph 96 are the legal conclusions of the
Plaintiff and are therefore denied. The referenced statute has no application to this matter
because, inter alia, the referenced goods were not ordered by or specifically
manufactured for FCF.CASE NO.: CACE-14-001087 (04)
97. The allegations contained in paragraph 97 are the legal conclusions of the
Plaintiff and are therefore denied. The referenced statute has no application to this matter
because, inter alia, the referenced goods were not ordered by or specifically
manufactured for FCF.
98. FCF denies the allegations contained in paragraph 98 of the Amended
Complaint.
WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor
and against the Plaintiff and to award FCF its costs incurred in defending this action.
COUNT VI
PROMISSORY ESTOPPEL
(Against Franklin only)
Defendant incorporates its responses to paragraphs 1 through 53 as if fully set
forth herein.
99. FCF denies the allegations contained in paragraph 99 of the Amended
Complaint.
100. FCF denies the allegations contained in paragraph 100 of the Amended
Complaint.
101. FCF denies the allegations contained in paragraph 101 of the Amended
Complaint.
102. FCF denies the allegations contained in paragraph 102 of the Amended
Complaint.
103. FCF denies allegations contained in paragraph 103 of the Amended
Complaint.CASE NO.: CACE-14-001087 (04)
104. The allegations in paragraph 104 do not require a response. To the extent
the Plaintiff contends otherwise, FCF denies the allegations contained in paragraph 104
of the Amended Complaint.
WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor
and against the Plaintiff and to award FCF its costs incurred in defending this action.
COUNT VII
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against iUniforms Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 105 through 108 are denied.
COUNT VII
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS
RELATIONSHIP
(Against iUniforms Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 109 through 112 are denied.
COUNT Ix
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Shellow Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 113 through 117 are denied.
COUNT X
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS
RELATIONSHIP
14CASE NO.: CACE-14-001087 (04)
(Against Shellow Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 118 through 122 are denied.
COUNT XI
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Rogers Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 123 through 127 are denied.
COUNT XII
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS
RELATIONSHIP
(Against Rogers Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 128 through 132 are denied.
COUNT XIII
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Sznitken Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 133 through 137 are denied.
COUNT XIV
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS
RELATIONSHIP
(Against Sznitken Only)
15CASE NO.: CACE-14-001087 (04)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 138 through 142 are denied.
COUNT XV
TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP
(Against Discovery Schools Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 143 through 146 are denied.
COUNT XVI
TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS
RELATIONSHIP
(Against Discovery Schools Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 147 through 150 are denied.
COUNT XVII
MISAPPROPRIATION OF TRADE SECRETS
(Against Rogers Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 151 through 155 are denied.
COUNT XVIII
MISAPPROPRIATION OF TRADE SECRETS
(Against Sznitken Only)CASE NO.: CACE-14-001087 (04)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 156 through 160 are denied.
COUNT Xx
MISAPPROPRIATION OF TRADE SECRETS
(Against iUniforms Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 167 through 171 are denied.
COUNT XxXI
MISAPPROPRIATION OF TRADE SECRETS
(Against Discovery Schools Only)
This Count is not directed against FCF so FCF offers no response to it. To the extent
the Plaintiff contends that this Count is against FCF, the entirety of the allegations
contained in paragraphs 172 through 176 are denied.
COUNT XxII
MISAPPROPRIATION OF TRADE SECRETS
(Against Franklin Only)
Defendant incorporates its responses to paragraphs 1 through 53 as if fully set
forth herein.
177. FCF denies the allegations contained in paragraph 177 of the Amended
Complaint.
178. FCF denies the allegations contained in paragraph 178 of the Amended
Complaint.CASE NO.: CACE-14-001087 (04)
179. FCF denies the allegations contained in paragraph 179 of the Amended
Complaint.
180. FCF denies the allegations contained in paragraph 180 of the Amended
Complaint.
181. FCF denies allegations contained in paragraph 181 of the Amended
Complaint.
WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor
and against the Plaintiff and to award FCF its costs incurred in defending this action.
AFFIRMATIVE DEFENSES
For its First Affirmative Defense FCF 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 [FCF] 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, FCF alleges that even if Rogers’ statement
could be construed as a false promise to enter into a contract such an action is not
18CASE NO.: CACE-14-001087 (04)
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 FCF alleges that the Plaintiff fails to allege any
utterance by Mr. Sznitken at all, let alone an utterance that would constitute a
misrepresentation of a material fact. Mr. Sznitken merely placed an order for certain
goods, which are openly and notoriously sold, and FCF paid in full for those goods.
Plaintiff makes no attempt to specify how those goods gained proprietary status, nor do
they explain how their products are not readily ascertainable to others and the steps they
have taken to keep their alleged proprietary information secret. Am. Red Cross v. Palm
Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir. 1998) (Under Florida law, a trade
secret consists of information that (1) derives economic value from not being readily
ascertainable by others and (2) is the subject of reasonable efforts to maintain its secrecy.)
Based on the above, Plaintiff has failed to state a cause of action for fraudulent
misrepresentation.
For its Fourth Affirmative Defense FCF alleges that Plaintiff fails to make the
necessary allegation that FCF or its representative(s) made a misrepresentation of a
material fact. Romo v. Amedex Ins. Co., 930 So. 2d 643, 650-51 (Fla. 3d DCA 2006) BasedCASE NO.: CACE-14-001087 (04)
on the above, Plaintiff has failed to state a cause of action for fraudulent
misrepresentation.
For its Fifth Affirmative Defense FCF alleges that Plaintiff's allegation that “Tom
Rogers on behalf of [FCF] 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. FCF sent to Plaintiff a “red-line” version of Plaintiffs proposed contract on May
9, 2011. In a May 16, 2011 email from Plaintiff to FCF, Plaintiff’s representative
acknowledged receipt of the red-line version of the contract. FCF attempted in good faith
to negotiate an express contract, which negates Plaintiffs claim that FCF’s statement “that
[FCF] 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 FCF 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.
20CASE NO.: CACE-14-001087 (04)
For its Seventh Affirmative Defense FCF alleges that Plaintiffs allegation of a false
statement by FCF 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 FCF alleges Plaintiff has failed to state a cause
of action for beach of an oral contract. Plaintiff fails to allege that, under the alleged oral
contract, FCF would be responsible for compensating Plaintiff for unsold merchandise or
inventory. Therefore, an essential term was left open, resulting in an unenforceable
contract. When “...a purported agreement is so vague and so uncertain in the
specifications of the subject matter that the court cannot identify that subject matter or
determine its quality, quantity or price, it will be unenforceable..” Truly Nolen, Inc. v.
21CASE NO.: CACE-14-001087 (04)
Atlas Moving & Storage Warehouses, Inc., 125 So. 2d 903, 905 (Fla. 3d DCA 1961) Based
on the above, Plaintiff has failed to state a cause of action for breach of oral contract.
For its Ninth Affirmative Defense FCF alleges that Plaintiff unjustifiably refused
to perform its obligations under the oral contract(s) between the parties. On February 8,
2011, Plaintiff provided to FCF a proposal and addendum that “...propose[d] a revenue
contribution back to [FCF’s] school of 20% on all items bearing Franklin Academy Logo
and 10% on all bottoms.” FCF’s Franklin Academy Board reviewed the proposal and
approved Plaintiff “to supply uniforms for our students at Franklin Academy for the
2011-2012 school year.” However, Plaintiff failed to contribute the amounts as agreed in
either the 2011-2012 or the 2012-2013 school years. Because of Plaintiff's failure to honor
its side of the contract, FCF notified Plaintiff in February, 2012 that Plaintiff would not be
a vendor for 2012-2013 school year. FCF granted Plaintiff more than an additional month
to sell its remaining inventory and also offered to discuss purchasing some or all of said
inventory. Therefore, FCF was well within its rights when it refused to enter into a third
oral contract for the 2013-2014 school year. Savage v. Horne, 31 So, 2d 477, 482 (Fla. 1947).
Based on the above, Plaintiff has failed to state a cause of action for breach of oral contract.
For its Tenth Affirmative Defense FCF alleges Plaintiff has failed to allege
sufficient ultimate facts to show that FCP’s alleged promise was sufficiently definite as to
its terms to justify an award compensating Plaintiff for unsold merchandise. Plaintiff does
not allege that FCF is responsible for compensating it for its unsold merchandise. Plaintiff
merely states that FCF agreed to enter into a contract at a future date. “[A] truthful
statement as to the present intention of a party with regard to his future act is not the
22CASE NO.: CACE-14-001087 (04)
foundation upon which an estoppel may be built.” S. Inv. Corp. v. Norton, 57 So. 2d 1,3
(Fla. 1952) Furthermore, there is no clear and convincing evidence alleged by Plaintiff
that FCF ever agreed to purchase the unsold merchandise. “For promissory estoppel to
be applied, the evidence must be clear and convincing.” W.R. Grace & Co. v. Geodata
Services, Inc., 547 So. 2d 919, 925 (Fla. 1989) Based on the above, Plaintiff has failed to
state a cause of action for promissory estoppel.
For its Eleventh Affirmative Defense FCF alleges that the Plaintiff's claims are
barred by the statute of frauds. Florida’s Statute of Frauds dictates that “[n]Jo action shall
be brought ... upon any agreement that is not to be performed within the space of 1 year
from the making thereof ... unless the agreement or promise ... [is] in writing...” § 725.01,
Fla. Stat. Here, according to the Complaint, the Plaintiff is asserting an oral agreement
that would require performance over a period between two and four years. Such an
alleged agreement would run afoul of the Statute of Frauds and is unenforceable. 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.” Because the oral contract sued upon here
falls within Florida’s Statute of Frauds, it is unenforceable. F.S. § 672.201(3)(a) as alleged
because the goods at issue were not ordered by or manufactured for FCF.
For its Twelfth Affirmative Defense FCF alleges that the Plaintiff has failed to
comply with a condition precedent. The alleged oral agreement and the draft written
proposal included a proposed revenue contribution back to Defendant’s school of 20%
23CASE NO.: CACE-14-001087 (04)
on all items bearing Franklin Academy Logo and 10% on all bottoms. Plaintiff has failed
to allege that it contributed the amounts in either the 2011-2012 or the 2012-2013 school
years.
DEMAND FOR JURY TRIAL
Florida Charter Foundation, Inc. demands a jury trial on all matters so triable as a
matter of right.
Respectfully submitted,
FUERST ITTLEMAN DAVID & JOSEPH, PL
1001 Brickell Bay Drive
32nd Floor
Miami, Florida 33131
Tel. (305) 350-5690
Fax (305) 371-8989
E-mail: Cdavid@fuerstlaw.com
E-mail: Tdavid@fuerstlaw.com
Secondary: grodriguez@fuerstlaw.com
Counsel for Florida Charter Foundation, Inc.
By: /s/ CHRISTOPHER M. DAVID
Florida Bar No. 985163
Thomas M. David
Florida Bar No. 20846
CERTIFICATE OF SERVICE
I certify that on August 10, 2015, a copy of the foregoing was forwarded via electronic
mail to: The Law Offices of David Di Pietro, P.A., David Di Pietro, Esq.
david@floridalitigationlawfirm.com, Nina Di Pietro, Esq., nina(@floridalitigationlawfirm.com,
service@floridalitigationlawfirm.com.
/s/ Christopher M. David
CHRISTOPHER M. DAVID
Florida Bar No. 985163
24
Preview
Filing # 30654638 E-Filed 08/10/2015 11:06:29 AM IN THE CIRCUIT COURT OF THE 17'4 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-14-001087 (04) PLANET T UNIFORMS, INC., Plaintiff, vz. FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, Defendant. FLORIDA CHARTER FOUNDATION, INC., D/B/A FRANKLIN ACADEMY CHARTER SCHOOL, Counter-Plaintiff, v. PLANET T UNIFORMS, INC., Counter-Defendant. / ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT! The Defendant, Florida Charter Foundation, Inc. D/B/A Franklin Academy Charter School (“FCF”), by and through undersigned counsel hereby files and serves its Answer and Affirmative Defenses to the Amended Complaint and in support thereof submits as follows: Any allegation, or part thereof, not specifically admitted is denied. *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 8/10/2015 11:06:29 AM.****CASE NO.: CACE-14-001087 (04) 1. FCF admits that the Plaintiff has attempted to assert a claim for damages. FCF denies that that the Plaintiff has successfully done so and therefore denies the allegations contained in paragraph lof the Amended Complaint. 2. FCF is without knowledge as to the allegations contained in paragraph 2 of the Amended Complaint and therefore denies the same and demands strict proof thereof. 3. FCF admits the allegations contained in paragraph 3 of the Amended Complaint. 4. FCF admits the allegations contained in paragraph 4 of the Amended Complaint. 5. FCF is without knowledge as to the allegations contained in paragraph 5 of the Amended Complaint and therefore denies the same and demands strict proof thereof. 6. FCF is without knowledge as to the allegations contained in paragraph 6 of the Amended Complaint and therefore denies the same and demands strict proof thereof. 7. FCF admits the allegations contained in paragraph 7 of the Amended Complaint. 8. FCF admits the allegations contained in paragraph 8 of the Amended Complaint. 9. The allegations contained in paragraph 9 are admitted only for purpose of venue. 10. FCF denies the allegations contained in paragraph 10 of the Amended Complaint. GENERAL ALLEGATIONS 2CASE NO.: CACE-14-001087 (04) 11. FCF admits that Planet T is a corporation. FCF is without knowledge as to the remaining allegations contained in paragraph 11 and therefore denies the same. 12. FCF admits the Franklin Academy operates a charter school in Broward County, Florida. 13. FCF admits that Discovery Schools provides services to FCF based upon a written agreement between them. 14. FCF admits that iUniforms sells school uniforms. 15. FCF admits that Rogers is the CEO of Discovery Schools. FCF denies the remaining allegations contained in paragraph 15. 16. FCF admits that Sznitken is a director of FCF and that FCF does business as Franklin Academy Charter School. 17. FCF admits that it was contacted by Plaintiff and that Plaintiff submitted a proposal to sell certain school uniforms to the parents of students at Franklin Academy. FCF denies the remaining allegations contained in paragraph 17 of the Amended Complaint. 18. FCF denies the allegations contained in paragraph 18 of the Amended Complaint. 19. FCF is without knowledge as to the allegations contained in paragraph 19 of the Amended Complaint and therefore denies the same and demands strict proof thereof.CASE NO.: CACE-14-001087 (04) 20. FCF is without knowledge as to the allegations contained in paragraph 20 of the Amended Complaint and therefore denies the same and demands strict proof thereof. 21. FCF denies the allegations contained in paragraph 21 of the Amended Complaint. 22. | FCF admits that a proposal was submitted by Planet T by which Planet T proposed to be licensed by FCF to sell clothing to the parents of students who attended Franklin Academy. FCF denies that the proposal was acceptable or that anyone on behalf of Planet T agreed to its terms. FCF admits that Planet T sold uniforms to parents of FCF students. FCF denies the remaining allegations contained in paragraph 22 of the Amended Complaint. 23. FCF admits that Planet T sought meetings with FCF regarding its proposal. FCF denies that it “delayed” meeting with Planet T. FCF denies that it indicated in any way that the Planet T proposal was acceptable or that it would be accepted. FCF denies the remaining allegations contained in paragraph 23 of the Amended Complaint. 24. FCF admits that the Planet T proposal was not accepted in May of 2011. FCF denies the remaining allegations contained in paragraph 24 of the Amended Complaint. 25. FCF denies the allegations contained in paragraph 25 of the Amended Complaint. 26. FCF admits that Planet T sought additional meetings regarding its proposal. FCF denies the remaining allegations contained in paragraph 26 of the Amended Complaint.CASE NO.: CACE-14-001087 (04) 27. FCF denies the allegations contained in paragraph 27 of the Amended Complaint. 28. FCF denies that it was provided any “privileged sales or margin information.” FCF is without knowledge as to the state of mind of Planet T at the time. FCF denies the remaining allegations contained in paragraph 28 of the Amended Complaint. 29. | FCF admits that it had no need to meet with Planet T because no agreement was reached and Planet T’s proposals had not been accepted. FCF admits that in or about March of 2012 Planet T contacted FCF and requested to discuss a proposal for Planet T to act as uniform supplier for the upcoming school year. FCF denies that an agreement was reached at that time. The remaining allegations contained in paragraph 29 of the Amended Complaint denied. 30. | FCF is without knowledge as to the allegations contained in paragraph 30 of the Amended Complaint and therefore denies the same and demands strict proof thereof. 31. FCF does not believe that a meeting occurred in September of 2012 with Planet T. FCF denies the remaining allegations contained in paragraph 31 of the Amended Complaint. 32. | FCF admits that Mr. Sznitken contacted Planet T to set up a visit to Planet T’s store. FCF denies the remaining allegations contained in paragraph 32 of the Amended Complaint.CASE NO.: CACE-14-001087 (04) 33. FCF admits that Mr. Sznitken is an FCF employee with the title of “Director.” FCF further admits that Mr. Sznitken’s duties involve contact with entities seeking to do enter into agreements with FCF. FCF denies the remaining allegations contained in paragraph 33 of the Amended Complaint. 34. FCF denies the allegations contained in paragraph 34 of the Complaint. 35. | FCF admits that it requested certain items that the Plaintiff sold to FCF students. FCF further admits that Plaintiff paid $2,913.40 to satisfy Plaintiff's invoice #1109753 for the purchased items. FCF denies the remaining allegations contained in paragraph 35 of the Amended Complaint. 36. | FCF admits that it advised Plaintiff orally on or about January 24, 2013 that it would not continue the arrangement into the 2013-2014 school year. FCF denies the remaining allegations contained in paragraph 36 of the Amended Complaint. 37. FCF denies the allegations contained in paragraph 37 of the Amended Complaint. 38. | FCF denies the allegations contained in paragraph 38 of the Amended Complaint. 39. FCF denies that it agreed to sign the contract submitted to it by the Plaintiff or that it agreed to the terms offered by the Plaintiff. Furthermore, FCF denies that the Plaintiff performed adequately. FCF denies the remaining allegations contained in paragraph 39 of the Amended Complaint.CASE NO.: CACE-14-001087 (04) 40. FCF is without knowledge as to what items or inventory the Plaintiff ordered or its state of mind when doing so. FCF denies the remaining allegations contained in paragraph 40 of the Amended Complaint. 41. | FCF admits that it notified Plaintiff that it could not sell product displaying FCF’s protected logos after March 31, 2103. FCF admits that it was under no obligation to guarantee the alleged purchases and that it refused to do so. FCF is without knowledge as to the remaining allegations contained in paragraph 41 of the Amended Complaint and therefore denies the same and demands strict proof thereof. 42. FCF is without knowledge as to what items were allegedly ordered by Plaintiff. FCF denies that any items were ordered for FCF as all goods were sold to the parents of students of Franklin and not FCF. FCF denies the remaining allegations contained in paragraph 42 of the Amended Complaint. 43. | FCF 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. FCF denies the remaining allegations contained in paragraph 43 of the Amended Complaint. 44, FCF is without knowledge as to the allegations contained in paragraph 44 of the Amended Complaint and therefore denies the same and demands strict proof thereof. 45. FCF admits that the Chairman of the Board of Directors of Franklin Academy Charter School communicated with parents on August 12, 2013. FCF denies the remaining the allegations contained in paragraph 45 of the Amended Complaint. 7CASE NO.: CACE-14-001087 (04) 46. FCF 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 46, including all sub-parts, attempt to characterize said testimony, FCF denies those allegations. 47. FCF denies the allegations contained in paragraph 47 of the Amended Complaint. 48. FCF denies the allegations contained in paragraph 48 of the Amended Complaint. 49. FCF denies the allegations contained in paragraph 49 of the Amended Complaint. 50. FCF denies the allegations contained in paragraph 50 of the Amended Complaint. 51. FCF is without knowledge as to the allegations contained in paragraph 51 and therefore denies the same and demands strict proof thereof. 52. FCF denies the allegations contained in paragraph 52 of the Amended Complaint. 53. FCF 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) Defendant incorporates its responses to paragraphs 1 through 53 as if fully set forth herein.CASE NO.: CACE-14-001087 (04) 54. FCF admits that it discussed signing a contract with Plaintiff and that the parties exchanged versions of a contract. However, FCF denies that the parties executed a contract or had a mutual understanding of the terms of a contract. FCF admits that the Franklin Academy Charter School’s Board of Directors entertained a proposal and an addendum from the Plaintiff but denies that any agreement as alleged by the Plaintiff was entered into. FCF specifically denies that the Franklin Academy Charter School’s Board of Directors agreed that Plaintiff would be the exclusive uniform vendor. FCF denies the remaining allegations contained in paragraph 54 of the Amended Complaint. 55. FCF denies the allegations contained in paragraph 55 of the Amended Complaint. 56. | FCF denies the allegations contained in paragraph 56 of the Amended Complaint. 57. FCFis without knowledge as to the state of mind of the Plaintiff. FCF denies the remaining allegations contained in paragraph 57 of the Amended Complaint. 58. FCF denies the allegations contained in paragraph 58 of the Amended Complaint. 59. FCF denies the allegations contained in paragraph 59 of the Amended Complaint. 60. FCF denies the allegations contained in paragraph 60 of the Amended Complaint. 61. FCF denies the allegations contained in paragraph 61 of the Amended Complaint.CASE NO.: CACE-14-001087 (04) 62. FCF denies the allegations contained in paragraph 62 of the Amended Complaint. 63. | FCF denies the allegations contained in paragraph 63 of the Amended Complaint. WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award FCF its costs incurred in defending this action. COUNT II FRAUDULENT MISREPRESENTATION (Against Rogers Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 64 through 74 are denied. COUNT II FRAUDULENT MISREPRESENTATION (Against Sznitken Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 75 through 82 are denied. COUNT IV NEGLIGENT MISREPRESENTATION (Against Franklin only) Defendant incorporates its responses to paragraphs 1 through 53 as if fully set forth herein. 83. | FCF admits that it discussed signing a contract with Plaintiff and that the parties exchanged versions of a contract. However, FCF denies that the parties executed 10CASE NO.: CACE-14-001087 (04) a contract or had a mutual understanding of the terms of a contract. FCF admits that the Franklin Academy Charter School’s Board of Directors entertained a proposal and an addendum from the Plaintiff but denies that any agreement as alleged by the Plaintiff was entered into. FCF specifically denies that the Franklin Academy Charter School’s Board of Directors agreed that Plaintiff would be the exclusive uniform vendor. FCF denies the remaining allegations contained in paragraph 83 of the Amended Complaint. 84. FCF denies the allegations contained in paragraph 84 of the Amended Complaint. 85. FCF denies the allegations contained in paragraph 85 of the Amended Complaint. 86. | FCF denies the allegations contained in paragraph 86 of the Amended Complaint. 87. FCF admits that it requested certain items that the Plaintiff sold to FCF students. FCF further admits that Plaintiff paid $2,913.40 to satisfy Plaintiff's invoice #1109753 for the purchased items. FCF denies the remaining allegations contained in paragraph 87 of the Amended Complaint. 88. FCF denies making the alleged statements and therefore denies the allegations contained in paragraph 88 of the Amended Complaint. 89. FCF denies making the alleged statements and therefore denies the allegations contained in paragraph 89 of the Amended Complaint. 90. FCF denies making the alleged statements and therefore denies the allegations contained in paragraph 90 of the Amended Complaint. 11CASE NO.: CACE-14-001087 (04) 91. FCF denies the allegations contained in paragraph 91 of the Amended Complaint. WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award FCF its costs incurred in defending this action. COUNT V BREACH OF ORAL CONTRACT (Against Franklin Only) Defendant incorporates its responses to paragraphs 1 through 53 as if fully set forth herein. 92. FCF denies the allegations contained in paragraph 92 of the Amended Complaint. 93. FCF denies the allegations contained in paragraph 93 of the Amended Complaint. 94. FCF admits that it notified Plaintiff that it could not sell product displaying FCF’s protected logos after March 31, 2103. FCF denies that there was an agreement to “continue” with Plaintiff for any purpose at any time. 95. FCF denies the existence of the alleged oral agreement and denies the allegations contained in paragraph 95 of the Amended Complaint. 96. The allegations contained in paragraph 96 are the legal conclusions of the Plaintiff and are therefore denied. The referenced statute has no application to this matter because, inter alia, the referenced goods were not ordered by or specifically manufactured for FCF.CASE NO.: CACE-14-001087 (04) 97. The allegations contained in paragraph 97 are the legal conclusions of the Plaintiff and are therefore denied. The referenced statute has no application to this matter because, inter alia, the referenced goods were not ordered by or specifically manufactured for FCF. 98. FCF denies the allegations contained in paragraph 98 of the Amended Complaint. WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award FCF its costs incurred in defending this action. COUNT VI PROMISSORY ESTOPPEL (Against Franklin only) Defendant incorporates its responses to paragraphs 1 through 53 as if fully set forth herein. 99. FCF denies the allegations contained in paragraph 99 of the Amended Complaint. 100. FCF denies the allegations contained in paragraph 100 of the Amended Complaint. 101. FCF denies the allegations contained in paragraph 101 of the Amended Complaint. 102. FCF denies the allegations contained in paragraph 102 of the Amended Complaint. 103. FCF denies allegations contained in paragraph 103 of the Amended Complaint.CASE NO.: CACE-14-001087 (04) 104. The allegations in paragraph 104 do not require a response. To the extent the Plaintiff contends otherwise, FCF denies the allegations contained in paragraph 104 of the Amended Complaint. WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award FCF its costs incurred in defending this action. COUNT VII TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against iUniforms Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 105 through 108 are denied. COUNT VII TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against iUniforms Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 109 through 112 are denied. COUNT Ix TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Shellow Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 113 through 117 are denied. COUNT X TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP 14CASE NO.: CACE-14-001087 (04) (Against Shellow Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 118 through 122 are denied. COUNT XI TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Rogers Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 123 through 127 are denied. COUNT XII TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against Rogers Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 128 through 132 are denied. COUNT XIII TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Sznitken Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 133 through 137 are denied. COUNT XIV TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against Sznitken Only) 15CASE NO.: CACE-14-001087 (04) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 138 through 142 are denied. COUNT XV TORTIOUS INTERFERENCE WITH CONTRACTUAL RELATIONSHIP (Against Discovery Schools Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 143 through 146 are denied. COUNT XVI TORTIOUS INTERFERENCE WITH ADVANTAGEOUS BUSINESS RELATIONSHIP (Against Discovery Schools Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 147 through 150 are denied. COUNT XVII MISAPPROPRIATION OF TRADE SECRETS (Against Rogers Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 151 through 155 are denied. COUNT XVIII MISAPPROPRIATION OF TRADE SECRETS (Against Sznitken Only)CASE NO.: CACE-14-001087 (04) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 156 through 160 are denied. COUNT Xx MISAPPROPRIATION OF TRADE SECRETS (Against iUniforms Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 167 through 171 are denied. COUNT XxXI MISAPPROPRIATION OF TRADE SECRETS (Against Discovery Schools Only) This Count is not directed against FCF so FCF offers no response to it. To the extent the Plaintiff contends that this Count is against FCF, the entirety of the allegations contained in paragraphs 172 through 176 are denied. COUNT XxII MISAPPROPRIATION OF TRADE SECRETS (Against Franklin Only) Defendant incorporates its responses to paragraphs 1 through 53 as if fully set forth herein. 177. FCF denies the allegations contained in paragraph 177 of the Amended Complaint. 178. FCF denies the allegations contained in paragraph 178 of the Amended Complaint.CASE NO.: CACE-14-001087 (04) 179. FCF denies the allegations contained in paragraph 179 of the Amended Complaint. 180. FCF denies the allegations contained in paragraph 180 of the Amended Complaint. 181. FCF denies allegations contained in paragraph 181 of the Amended Complaint. WHEREFORE, FCF requests that this Honorable Court enter judgment in its favor and against the Plaintiff and to award FCF its costs incurred in defending this action. AFFIRMATIVE DEFENSES For its First Affirmative Defense FCF 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 [FCF] 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, FCF alleges that even if Rogers’ statement could be construed as a false promise to enter into a contract such an action is not 18CASE NO.: CACE-14-001087 (04) 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 FCF alleges that the Plaintiff fails to allege any utterance by Mr. Sznitken at all, let alone an utterance that would constitute a misrepresentation of a material fact. Mr. Sznitken merely placed an order for certain goods, which are openly and notoriously sold, and FCF paid in full for those goods. Plaintiff makes no attempt to specify how those goods gained proprietary status, nor do they explain how their products are not readily ascertainable to others and the steps they have taken to keep their alleged proprietary information secret. Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1410 (11th Cir. 1998) (Under Florida law, a trade secret consists of information that (1) derives economic value from not being readily ascertainable by others and (2) is the subject of reasonable efforts to maintain its secrecy.) Based on the above, Plaintiff has failed to state a cause of action for fraudulent misrepresentation. For its Fourth Affirmative Defense FCF alleges that Plaintiff fails to make the necessary allegation that FCF or its representative(s) made a misrepresentation of a material fact. Romo v. Amedex Ins. Co., 930 So. 2d 643, 650-51 (Fla. 3d DCA 2006) BasedCASE NO.: CACE-14-001087 (04) on the above, Plaintiff has failed to state a cause of action for fraudulent misrepresentation. For its Fifth Affirmative Defense FCF alleges that Plaintiff's allegation that “Tom Rogers on behalf of [FCF] 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. FCF sent to Plaintiff a “red-line” version of Plaintiffs proposed contract on May 9, 2011. In a May 16, 2011 email from Plaintiff to FCF, Plaintiff’s representative acknowledged receipt of the red-line version of the contract. FCF attempted in good faith to negotiate an express contract, which negates Plaintiffs claim that FCF’s statement “that [FCF] 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 FCF 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. 20CASE NO.: CACE-14-001087 (04) For its Seventh Affirmative Defense FCF alleges that Plaintiffs allegation of a false statement by FCF 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 FCF alleges Plaintiff has failed to state a cause of action for beach of an oral contract. Plaintiff fails to allege that, under the alleged oral contract, FCF would be responsible for compensating Plaintiff for unsold merchandise or inventory. Therefore, an essential term was left open, resulting in an unenforceable contract. When “...a purported agreement is so vague and so uncertain in the specifications of the subject matter that the court cannot identify that subject matter or determine its quality, quantity or price, it will be unenforceable..” Truly Nolen, Inc. v. 21CASE NO.: CACE-14-001087 (04) Atlas Moving & Storage Warehouses, Inc., 125 So. 2d 903, 905 (Fla. 3d DCA 1961) Based on the above, Plaintiff has failed to state a cause of action for breach of oral contract. For its Ninth Affirmative Defense FCF alleges that Plaintiff unjustifiably refused to perform its obligations under the oral contract(s) between the parties. On February 8, 2011, Plaintiff provided to FCF a proposal and addendum that “...propose[d] a revenue contribution back to [FCF’s] school of 20% on all items bearing Franklin Academy Logo and 10% on all bottoms.” FCF’s Franklin Academy Board reviewed the proposal and approved Plaintiff “to supply uniforms for our students at Franklin Academy for the 2011-2012 school year.” However, Plaintiff failed to contribute the amounts as agreed in either the 2011-2012 or the 2012-2013 school years. Because of Plaintiff's failure to honor its side of the contract, FCF notified Plaintiff in February, 2012 that Plaintiff would not be a vendor for 2012-2013 school year. FCF granted Plaintiff more than an additional month to sell its remaining inventory and also offered to discuss purchasing some or all of said inventory. Therefore, FCF was well within its rights when it refused to enter into a third oral contract for the 2013-2014 school year. Savage v. Horne, 31 So, 2d 477, 482 (Fla. 1947). Based on the above, Plaintiff has failed to state a cause of action for breach of oral contract. For its Tenth Affirmative Defense FCF alleges Plaintiff has failed to allege sufficient ultimate facts to show that FCP’s alleged promise was sufficiently definite as to its terms to justify an award compensating Plaintiff for unsold merchandise. Plaintiff does not allege that FCF is responsible for compensating it for its unsold merchandise. Plaintiff merely states that FCF agreed to enter into a contract at a future date. “[A] truthful statement as to the present intention of a party with regard to his future act is not the 22CASE NO.: CACE-14-001087 (04) foundation upon which an estoppel may be built.” S. Inv. Corp. v. Norton, 57 So. 2d 1,3 (Fla. 1952) Furthermore, there is no clear and convincing evidence alleged by Plaintiff that FCF ever agreed to purchase the unsold merchandise. “For promissory estoppel to be applied, the evidence must be clear and convincing.” W.R. Grace & Co. v. Geodata Services, Inc., 547 So. 2d 919, 925 (Fla. 1989) Based on the above, Plaintiff has failed to state a cause of action for promissory estoppel. For its Eleventh Affirmative Defense FCF alleges that the Plaintiff's claims are barred by the statute of frauds. Florida’s Statute of Frauds dictates that “[n]Jo action shall be brought ... upon any agreement that is not to be performed within the space of 1 year from the making thereof ... unless the agreement or promise ... [is] in writing...” § 725.01, Fla. Stat. Here, according to the Complaint, the Plaintiff is asserting an oral agreement that would require performance over a period between two and four years. Such an alleged agreement would run afoul of the Statute of Frauds and is unenforceable. 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.” Because the oral contract sued upon here falls within Florida’s Statute of Frauds, it is unenforceable. F.S. § 672.201(3)(a) as alleged because the goods at issue were not ordered by or manufactured for FCF. For its Twelfth Affirmative Defense FCF alleges that the Plaintiff has failed to comply with a condition precedent. The alleged oral agreement and the draft written proposal included a proposed revenue contribution back to Defendant’s school of 20% 23CASE NO.: CACE-14-001087 (04) on all items bearing Franklin Academy Logo and 10% on all bottoms. Plaintiff has failed to allege that it contributed the amounts in either the 2011-2012 or the 2012-2013 school years. DEMAND FOR JURY TRIAL Florida Charter Foundation, Inc. demands a jury trial on all matters so triable as a matter of right. Respectfully submitted, FUERST ITTLEMAN DAVID & JOSEPH, PL 1001 Brickell Bay Drive 32nd Floor Miami, Florida 33131 Tel. (305) 350-5690 Fax (305) 371-8989 E-mail: Cdavid@fuerstlaw.com E-mail: Tdavid@fuerstlaw.com Secondary: grodriguez@fuerstlaw.com Counsel for Florida Charter Foundation, Inc. By: /s/ CHRISTOPHER M. DAVID Florida Bar No. 985163 Thomas M. David Florida Bar No. 20846 CERTIFICATE OF SERVICE I certify that on August 10, 2015, a copy of the foregoing was forwarded via electronic mail to: The Law Offices of David Di Pietro, P.A., David Di Pietro, Esq. david@floridalitigationlawfirm.com, Nina Di Pietro, Esq., nina(@floridalitigationlawfirm.com, service@floridalitigationlawfirm.com. /s/ Christopher M. David CHRISTOPHER M. DAVID Florida Bar No. 985163 24