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Filing # 14225269 Electronically Filed 05/29/2014 06:56:41 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,
Defendants.
/
PLAINTIFF’S REPLY TO FLORIDA CHARTER FOUNDATION, INC. D/B/A
FRANKLIN ACADEMY CHARTER SCHOOL’S AFFIRMATIVE DEFENSES AND
ANSWER TO ITS COUNTERCLAIM
COMES NOW, Plaintiff, PLANET T UNIFORMS, INC. (“PLANET T”), by and through
undersigned counsel, hereby files this Reply to Defendant, FLORIDA CHARTER
FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL’s (“FRANKLIN”)
Affirmative Defenses and Answer to its Counterclaim filed on April 8, 2014.
1. Admitted.
2. Admitted.
3. Admitted.
4, Plaintiff is without sufficient knowledge to admit or deny the allegations contained
in Paragraph 4 and therefore denies them and demands strict proof thereof.
5. Plaintiff denies the allegations contained in Paragraph 5.
6. Plaintiff denies the allegations contained in Paragraph 6.
7. Plaintiff denies the allegations contained in Paragraph 7.
Page | of 5
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 5/29/2014 6:56:40 PM.****8. Plaintiff denies the allegations contained in Paragraph 8.
9. Plaintiff denies the allegations contained in Paragraph 9.
10. Plaintiff denies the allegations contained in Paragraph 10.
lL. Plaintiff denies the allegations contained in Paragraph 11.
12. Plaintiff denies the allegations contained in Paragraph 12.
13. Plaintiff denies the allegations contained in Paragraph 13.
14. Plaintiff denies the allegations contained in Paragraph 14.
15 Plaintiff denies the allegations contained in Paragraph 15.
16. Plaintiff denies the allegations contained in Paragraph 16.
17. Plaintiff denies the allegations contained in Paragraph 17.
18. Plaintiff denies the allegations contained in Paragraph 18.
19. Plaintiff denies the allegations contained in Paragraph 19.
20. Plaintiff denies the allegations contained in Paragraph 20.
Plaintiff denies all allegations not specifically admitted herein.
REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES
21. Plaintiff asserts equitable estoppel in response to Defendant’s affirmative defenses.
Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely
precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed,
either of property or of contract, or of remedy, as against another person, who has in good faith
relied upon such conduct and has been led thereby to change his position for the worse, and who
on his part acquires some corresponding right, either of property, or of contract or of remedy. The
doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused
another to believe in the existence of a certain state of things, and thereby induces him to act on
this belief injuriously to himself, or to alter his own previous condition to his injury. Major League
Page 2 of 5Baseball v. Morsani, 790 So, 2d 1071 (Fla. 2001). At all times material, as alleged in the
complaint, Plaintiffrelied upon Defendant’s statements and conduct. Therefore, Defendant should
be barred from denying this. Equitable estoppel is based on principles of fair play and essential
justice and arises when one party lures another party into a disadvantageous legal position. See
Major League Baseball, at 1071.
22. Plaintiff pleads constructive fraud to Defendant’s affirmative defenses. A claim for
actionable fraud requires that there was a “...material misrepresentation upon which the other party
relies to his detriment.” See Lance _v. Wade, 547 So. 2d 1008, 1011 (Fla. 1984). “The
distinguishing element of actual fraud is always untruth between the two parties to the transaction,
so that actual fraud may be reduced to misrepresentation and concealment. Not so of constructive
fraud. Constructive fraud is simply a term applied to a great variety of transactions, which equity
regards as wrongful, to which it attributes the same or similar effects as those which follow from
actual fraud, and for which it gives the same or similar relief as that granted in cases of real fraud.”
See Douglas v. Ogle, 85 So. 243, 244 (Fla. 1920). In this case, Defendant who is alleged to have
committed fraud, cannot escape liability by disclaiming the existence of an element of fraud when
the defendant is responsible for the fraud. See complaint. To rule otherwise would reward the
fraud. “It is not necessary that there should have been a fiduciary relation between the parties; nor
that it be positively shown that the one was not left to act upon his own free will in order to
constitute constructive fraud.” See Douglas, at 244.
AFFIRMATIVE DEFENSES
23 As for Plaintiff’s first affirmative defense, Plaintiff/Counter-Defendant asserts that
Defendant failed to state a cause of action upon which relief can be granted. Defendant failed to
state that it complied with all conditions precedent, as required for filing a Breach of Contract
cause of action.
Page 3 of 524. As for Plaintiff's second affirmative defense, Plaintiff asserts equitable estoppel as
stated above.
25. As for Plaintiff's third affirmative defense, Plaintiff asserts constructive fraud as
stated above.
26. As for Plaintiff's forth affirmative defense, Plaintiff asserts that Defendant's
counterclaim fails to state a cause of action upon which relief can be granted. Defendant must
allege facts that if taken as true demonstrate that the parties mutually assented to a certain and
definite proposition and left no essential term open. Jacksonville Port Authority v. W.R. Johnson
Enterprises Inc., 624 So.2d 313 (Fla. lst DCA 1993). Defendant did not dispute that Plaintiff had
a contract for the 2012-2013 school year, but Defendant informed Plaintiff it could no longer sell
its specifically manufactured inventory after March 31, 2013, which was clearly prior to the end
of the term.
27. _ As for Plaintiff fifth affirmative defense, Plaintiff asserts setoff. Plaintiff is entitled
to setoff for any amount owed by Plaintiff to Defendant.
28. As for Plaintiff sixth affirmative defense, Plaintiff asserts accord and satisfaction.
Defendant did not dispute that Plaintiff had a contract for the 2012-2013 school year, but
Defendant informed Plaintiff it could no longer sell its specifically manufactured inventory after
March 31, 2013, which was clearly prior to the end of the term.
29. As for Plaintiff seventh affirmative defense, Plaintiff asserts release. Defendant did
not dispute that Plaintiff had a contract for the 2012-2013 school year, but Defendant informed
Plaintiff it could no longer sell its specifically manufactured inventory after March 31, 2013, which
was clearly prior to the end of the term. Therefore, Defendant released Plaintiff.
30. As for Plaintiff eighth affirmative defense, Plaintiff asserts waiver. Defendant did
not dispute that Plaintiff had a contract for the 2012-2013 school year, but Defendant informed
Page 4 of 5Plaintiff it could no longer sell its specifically manufactured inventory after March 31, 2013, which
was clearly prior to the end of the term. Therefore, Defendant waived its right to assert a breach
of contract action.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished e-
service through the Florida Courts E-Filing Portal to the Service List below on May 29, 2014.
FLORIDA LITIGATION LAW FIRM
David Di Pietro Law P.A.
Legacy Bank Building
12 SE 7" Street, Suite 606
Fort Lauderdale, FL 33301
Telephone: (954) 712-3070
Facsimile: (954) 337-3824
/s/ David Di Pietro
DAVID DI PIETRO, ESQ.
Florida Bar No.: 10370
david@floridalitigationlawfirm.com
NINA DI PIETRO, ESQ.
Florida Bar No.: 27218
nina@floridalitigationlawfirm.com
Page 5 of 5
Preview
Filing # 14225269 Electronically Filed 05/29/2014 06:56:41 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, Defendants. / PLAINTIFF’S REPLY TO FLORIDA CHARTER FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL’S AFFIRMATIVE DEFENSES AND ANSWER TO ITS COUNTERCLAIM COMES NOW, Plaintiff, PLANET T UNIFORMS, INC. (“PLANET T”), by and through undersigned counsel, hereby files this Reply to Defendant, FLORIDA CHARTER FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL’s (“FRANKLIN”) Affirmative Defenses and Answer to its Counterclaim filed on April 8, 2014. 1. Admitted. 2. Admitted. 3. Admitted. 4, Plaintiff is without sufficient knowledge to admit or deny the allegations contained in Paragraph 4 and therefore denies them and demands strict proof thereof. 5. Plaintiff denies the allegations contained in Paragraph 5. 6. Plaintiff denies the allegations contained in Paragraph 6. 7. Plaintiff denies the allegations contained in Paragraph 7. Page | of 5 *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 5/29/2014 6:56:40 PM.****8. Plaintiff denies the allegations contained in Paragraph 8. 9. Plaintiff denies the allegations contained in Paragraph 9. 10. Plaintiff denies the allegations contained in Paragraph 10. lL. Plaintiff denies the allegations contained in Paragraph 11. 12. Plaintiff denies the allegations contained in Paragraph 12. 13. Plaintiff denies the allegations contained in Paragraph 13. 14. Plaintiff denies the allegations contained in Paragraph 14. 15 Plaintiff denies the allegations contained in Paragraph 15. 16. Plaintiff denies the allegations contained in Paragraph 16. 17. Plaintiff denies the allegations contained in Paragraph 17. 18. Plaintiff denies the allegations contained in Paragraph 18. 19. Plaintiff denies the allegations contained in Paragraph 19. 20. Plaintiff denies the allegations contained in Paragraph 20. Plaintiff denies all allegations not specifically admitted herein. REPLY TO DEFENDANT’S AFFIRMATIVE DEFENSES 21. Plaintiff asserts equitable estoppel in response to Defendant’s affirmative defenses. Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps have otherwise existed, either of property or of contract, or of remedy, as against another person, who has in good faith relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy. The doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury. Major League Page 2 of 5Baseball v. Morsani, 790 So, 2d 1071 (Fla. 2001). At all times material, as alleged in the complaint, Plaintiffrelied upon Defendant’s statements and conduct. Therefore, Defendant should be barred from denying this. Equitable estoppel is based on principles of fair play and essential justice and arises when one party lures another party into a disadvantageous legal position. See Major League Baseball, at 1071. 22. Plaintiff pleads constructive fraud to Defendant’s affirmative defenses. A claim for actionable fraud requires that there was a “...material misrepresentation upon which the other party relies to his detriment.” See Lance _v. Wade, 547 So. 2d 1008, 1011 (Fla. 1984). “The distinguishing element of actual fraud is always untruth between the two parties to the transaction, so that actual fraud may be reduced to misrepresentation and concealment. Not so of constructive fraud. Constructive fraud is simply a term applied to a great variety of transactions, which equity regards as wrongful, to which it attributes the same or similar effects as those which follow from actual fraud, and for which it gives the same or similar relief as that granted in cases of real fraud.” See Douglas v. Ogle, 85 So. 243, 244 (Fla. 1920). In this case, Defendant who is alleged to have committed fraud, cannot escape liability by disclaiming the existence of an element of fraud when the defendant is responsible for the fraud. See complaint. To rule otherwise would reward the fraud. “It is not necessary that there should have been a fiduciary relation between the parties; nor that it be positively shown that the one was not left to act upon his own free will in order to constitute constructive fraud.” See Douglas, at 244. AFFIRMATIVE DEFENSES 23 As for Plaintiff’s first affirmative defense, Plaintiff/Counter-Defendant asserts that Defendant failed to state a cause of action upon which relief can be granted. Defendant failed to state that it complied with all conditions precedent, as required for filing a Breach of Contract cause of action. Page 3 of 524. As for Plaintiff's second affirmative defense, Plaintiff asserts equitable estoppel as stated above. 25. As for Plaintiff's third affirmative defense, Plaintiff asserts constructive fraud as stated above. 26. As for Plaintiff's forth affirmative defense, Plaintiff asserts that Defendant's counterclaim fails to state a cause of action upon which relief can be granted. Defendant must allege facts that if taken as true demonstrate that the parties mutually assented to a certain and definite proposition and left no essential term open. Jacksonville Port Authority v. W.R. Johnson Enterprises Inc., 624 So.2d 313 (Fla. lst DCA 1993). Defendant did not dispute that Plaintiff had a contract for the 2012-2013 school year, but Defendant informed Plaintiff it could no longer sell its specifically manufactured inventory after March 31, 2013, which was clearly prior to the end of the term. 27. _ As for Plaintiff fifth affirmative defense, Plaintiff asserts setoff. Plaintiff is entitled to setoff for any amount owed by Plaintiff to Defendant. 28. As for Plaintiff sixth affirmative defense, Plaintiff asserts accord and satisfaction. Defendant did not dispute that Plaintiff had a contract for the 2012-2013 school year, but Defendant informed Plaintiff it could no longer sell its specifically manufactured inventory after March 31, 2013, which was clearly prior to the end of the term. 29. As for Plaintiff seventh affirmative defense, Plaintiff asserts release. Defendant did not dispute that Plaintiff had a contract for the 2012-2013 school year, but Defendant informed Plaintiff it could no longer sell its specifically manufactured inventory after March 31, 2013, which was clearly prior to the end of the term. Therefore, Defendant released Plaintiff. 30. As for Plaintiff eighth affirmative defense, Plaintiff asserts waiver. Defendant did not dispute that Plaintiff had a contract for the 2012-2013 school year, but Defendant informed Page 4 of 5Plaintiff it could no longer sell its specifically manufactured inventory after March 31, 2013, which was clearly prior to the end of the term. Therefore, Defendant waived its right to assert a breach of contract action. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished e- service through the Florida Courts E-Filing Portal to the Service List below on May 29, 2014. FLORIDA LITIGATION LAW FIRM David Di Pietro Law P.A. Legacy Bank Building 12 SE 7" Street, Suite 606 Fort Lauderdale, FL 33301 Telephone: (954) 712-3070 Facsimile: (954) 337-3824 /s/ David Di Pietro DAVID DI PIETRO, ESQ. Florida Bar No.: 10370 david@floridalitigationlawfirm.com NINA DI PIETRO, ESQ. Florida Bar No.: 27218 nina@floridalitigationlawfirm.com Page 5 of 5