Preview
Filing # 11695487 Electronically Filed 03/24/2014 05:49:09 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 RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO
DISMISS
COMES NOW, Plaintiff, PLANET T UNIFORMS, INC. (“PLANET T”), by and through
undersigned counsel, hereby files this Response in Opposition to Defendant, FLORIDA
CHARTER FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL
(“FRANKLIN”)’s Motion to Dismiss Plaintiffs Complaint.
1. On or about January 16, 2014, PLANET T filed this instant lawsuit against
FRANKLIN.
2. On or about February 4, 2014, FRANKLIN filed a Motion to Dismiss PLANET T’s
Complaint for various reasons, in which PLANET T will address below.
3. For the below stated reasons, PLANET T’s Complaint should not be dismissed.
I. Failure to attach Exhibits
4. FRANKLIN first argues that PLANET T’s Complaint should be dismissed for failure
to attach the cited exhibits to the Complaint.
Page | of 8
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 3/24/2014 5:49:09 PM.****10.
1.
PLANET T inadvertently did not attach the two exhibits referenced in the Complaint
when it filed same.
This issue is moot as, PLANET T filed a Notice of Filing Exhibits to Complaint on
March 5, 2014.
However, despite the issue being moot, the Complaint cannot be dismiss due to failure
to attach the exhibits.
FRANKLIN argues that a Motion to Dismiss must be granted when exhibits are not
attached to a Complaint according to Samuels v. King Motor Co. of Fort Lauderdale,
782 So.2d 489 (Fla. 4" DCA 2001). However, Samuels states that a Motion to Dismiss
is the proper attack to a Complaint when it fails to attach exhibits when the complaint
is based on a written instrument. PLANET T’s Complaint is not based solely on a
written instrument, contrarily, PLANET T’s counts are based off of an oral contract.
Id. at 500,
For the above stated reasons, FRANKLIN’s Motion to Dismiss on all counts based on
failure to attach exhibits to the Complaint should be denied.
IL Fraudulent Misrepresentation
FRANKLIN next argues that PLANET T’s count I for fraudulent misrepresentation
should be dismissed because it fails to state a cause of action.
FRANKLIN argues that it is impossible for it not to have performed the promise
PLANET T alleges in Paragraph 35 of the Complaint. In Paragraph 35 of the
Complaint, PLANET T alleges that “Tom Rogers on behalf of FRANKLIN orally
agreed that it PLANET T performed as promised, a contract would be immediately
executed following the 2010-2011 back to school season.”
Page 2 of 812.
13.
14.
16.
17.
PLANET T made a scrivenor’s error in Paragraph 35 of the Complaint, as the correct
back to school year is actually 2011-2012. This is the basis of FRANKLIN’s Motion
to Dismiss Count I. However, this issue is moot as, PLANET T filed a Motion to
Correct Scrivenor’s Error in Complaint on March 24, 2014.
Additionally, FRANKLIN argues that PLANET T’s Count I for Fraudulent
Misrepresentation should be dismissed for failure to state an actionable fraud.
FRANKLIN argues that Mr. Rogers promised to sign a contract in the future and a
promise to do something in the future is not an actionable fraud.
. FRANKLIN cites to Sleight v. Sun & Surf Realty, Inc., 410 So.2d 998 (Fla. 3d DCA
1982) in support of its assertion that a false statement amounting to a promise to do
something in the future is not actionable fraud. However, the Court also stated that a
misrepresentation must “ordinarily relate to a past or existing fact to be the basis of a
claim for relief sounding in fraud” and PLANET T alleges that Mr. Rogers
misrepresented FRANKLIN’: intention to enter a contract in the future. /d. at 999, The
misrepresentation related to a then-existing fact because Mr. Rogers, on behalf of
FRANKLIN, was misrepresenting his intention, at that time, to enter into a contract.
He misrepresented that he wanted to enter into a contract and that amounts to fraudulent
misrepresentation according to Sleight. /d.
Further, FRANKLIN argues that PLANET T’s Count I for Fraudulent
Misrepresentation should be dismissed for failure to state a cause of action based upon
Mr. Sznitken’s alleged actions.
Mr. Sznitken’s statement asking for a full list of styles, sizes, and colors of the items
supplied by PLANET T to Defendant was misrepresenting that he would use this
information in negotiation during their planned meeting to sign the contract.
Page 3 of 818.
19.
20.
21,
22,
N
Further, these were not the only misrepresentations that Mr. Sznitken made. Mr.
Sznitken also advised PLANET T that a meeting would be set up soon to iron out details
and sign the contract. These statements represented that FRANKLIN was going to sign
the contract.
Further, in a Motion to Dismiss, the Court is to take all the factual allegations alleged
in the Complaint as true; therefore, the factual arguments are not proper for a Motion
to Dismiss.
For the above mentioned reasons, FRANKLIN’s Motion to Dismiss Count I,
Fraudulent Misrepresentation, should be denied.
Ill. Negligent Misrepresentation
FRANKLIN next argues that PLANET T’s Count II for Negligent Misrepresentation
should be dismissed because it fails to state a cause of action.
FRANKLIN again argues impossibility due to the scrivenor’s error of 2010-2011
school year instead of the correct 2011-2012 school year. As stated above, this issue is
moot as PLANET T filed its Motion to Correct Scrivenor’s Error on March 24, 2014.
. FRANKLIN also argues that PLANET T cannot prevail in a claim for fraud or
negligent misrepresentation because Florida law requires that the Plaintiff justifiably
rely upon the false statement. FRANKLIN claims PLANET T could not justifiably rely
upon an agreement to agree.
. However, PLANET T can justifiably rely on FRANKLIN’s statement that it intends to
enter into a contract after performance by PLANET T. PLANET T made a false
statement about its then-existing intention to enter into a contract and PLANET T
ordered custom-made uniforms and withheld from other business opportunities in
reliance on same.
Page 4 of 825,
26.
27.
28
29,
31.
32
Additionally, as stated above, Mr. Rogers’ statements are actionable fraud as they relate
to FRANKLIN’s then-existing intention to fulfill its promise to enter into a contract.
For the above stated reasons, FRANKLIN’s Motion to Dismiss Count II for negligent
misrepresentation should be denied.
IV. Breach of Oral Contract
FRANKLIN next argues that PLANET T’s count III for breach of oral contract should
be dismissed because it is barred by the Statute of Frauds.
FRANKLIN argues that PLANET T alleges an oral contract which requires
performance over a period between two and four years and in Florida an agreement
which is not performed within one year must be in writing or it is barred by the Statute
of Frauds.
PLANET T has numerous emails from FRANKLIN representatives which comply with
the Statute of Frauds. These emails outline the oral contract and is signed by
FRANKLIN through email signature.
. Additionally, Florida Courts have consistently held that when a party fully performs
under an oral contract, the non-performing party cannot use the Statute of Frauds as a
defense. Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1251, 1253 (Fla.
4" DCA 1982).
PLANET T fully complied with the oral contract when it ordered specifically
manufactured uniforms.
However, even if the Court were to find that PLANET T did not fully perform and that
there was not a written document to comply with the Statute of Frauds, PLANET T
does not allege an oral contract that requires performance over a period between two
and four years. Contrarily, PLANET T alleges that in March of 2012 Ivy Bernardo on
Page 5 of 833.
35,
36.
37.
behalf of FRANKLIN offered PLANET T to act as the exclusive uniform vendor for
the 2012-2013 year and she would set up a meeting soon to sign the contract.
Ms. Bernardo, on behalf of FRANKLIN, orally entered into a contract with PLANET
T in March of 2012 in which PLANET T would order specifically manufactured
uniforms and FRANKLIN would require its students to order uniforms exclusively
from PLANET T. The signing of the official contract would occur at a meeting soon
thereafter. Due to FRANKLIN’s promise, PLANET T ordered specifically
manufactured uniforms.
. FRANKLIN breached the oral contract when it refused to send its students to PLANET
T for their school’s uniforms and for requesting PLANET T cease selling any inventory
of specifically manufactured uniforms as of March 31, 2013.
Further, Statute of Frauds is properly pled as an affirmative defense, not as grounds for
a Motion to Dismiss. Affirmative defenses are not proper as grounds for a Motion to
Dismiss, because it requires the Court to go beyond the four corners of the pleadings.
Wausau Ins. Co. v. Haynes, 683 So.2d 1123, 1125 (Fla. 4" DCA 1996); Stucchio v.
Huffstetler, 690 So.2d 753, 754 (Fla. 5" DCA 1997); and Conner v. Walt Disney
Company, 827 So.2d 318, 319 (Fla. 5" DCA 2002).
For the above stated reasons, FRANKLIN’s Motion to Dismiss Count III for breach of
oral contract should be denied.
Vv. Promissory Estoppel
FRANKLIN next argues that PLANET T’s count IV for promissory estoppel should
be dismissed because it fails to state a cause of action.
Page 6 of 838. FRANKLIN again argues impossibility due to the scrivenor’s error of 2010-2011
school year instead of the correct 2011-2012 school year. As stated above, this issue is
moot as PLANET T filed its Motion to Correct Scrivenor’s Error on March 24, 2014.
39. Further, FRANKLIN argues that promissory estoppel does not apply when a party is
stating its intention to agree in the future. However, as explained supra, FRANKLIN
did not make a statement to agree to something in the future, rather, FRANKLIN
entered into an oral contract with PLANET T in March of 2012 in which PLANET T
would order specifically manufactured uniforms and FRANKLIN would require its
students to order uniforms exclusively from PLANET T. The signing of the official
contract would occur at a meeting soon thereafter. Due to FRANKLIN’s promise,
PLANET T ordered specifically manufactured uniforms.
40. FRANKLIN argues that promissory estoppel is not an exception to the statute of frauds.
However, PLANET T never argues that it is and as explained supra, the oral contract
does not violate the statute of frauds.
WHEREFORE, Plaintiff, PLANET T UNIFORMS, INC., respectfully requests this
Honorable Court deny Defendant, FLORIDA CHARTER FOUNDATION, INC. D/B/A
FRANKLIN ACADEMY CHARTER SCHOOL’s, Motion to Dismiss, and such further relief as
this Court deems just and proper.
CERTIFICATE OF SERVICE
J 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 March 24, 2014.
FLORIDA LITIGATION LAW FIRM
The Law Offices of David Di Pietro, P.A.
Legacy Bank Building
12 SE 7" Street, Suite 606
Fort Lauderdale, FL 33301
Page 7 of 8Primary:
service@floridalitigationlawfirm.com
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
SERVICE LIST
Christopher M. David, Esq.
Fuerst Ittleman David & Joseph, PL
1001 Brickell Bay Drive, 32™ Floor
Miami, Florida 33131
Emails: cdavid@fuerstlaw.com; tdavid@fuerstlaw.com;
And jconcepcion@fuerstlaw.com
Page 8 of 8
Preview
Filing # 11695487 Electronically Filed 03/24/2014 05:49:09 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 RESPONSE IN OPPOSITION TO DEFENDANT’S MOTION TO DISMISS COMES NOW, Plaintiff, PLANET T UNIFORMS, INC. (“PLANET T”), by and through undersigned counsel, hereby files this Response in Opposition to Defendant, FLORIDA CHARTER FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL (“FRANKLIN”)’s Motion to Dismiss Plaintiffs Complaint. 1. On or about January 16, 2014, PLANET T filed this instant lawsuit against FRANKLIN. 2. On or about February 4, 2014, FRANKLIN filed a Motion to Dismiss PLANET T’s Complaint for various reasons, in which PLANET T will address below. 3. For the below stated reasons, PLANET T’s Complaint should not be dismissed. I. Failure to attach Exhibits 4. FRANKLIN first argues that PLANET T’s Complaint should be dismissed for failure to attach the cited exhibits to the Complaint. Page | of 8 *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 3/24/2014 5:49:09 PM.****10. 1. PLANET T inadvertently did not attach the two exhibits referenced in the Complaint when it filed same. This issue is moot as, PLANET T filed a Notice of Filing Exhibits to Complaint on March 5, 2014. However, despite the issue being moot, the Complaint cannot be dismiss due to failure to attach the exhibits. FRANKLIN argues that a Motion to Dismiss must be granted when exhibits are not attached to a Complaint according to Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4" DCA 2001). However, Samuels states that a Motion to Dismiss is the proper attack to a Complaint when it fails to attach exhibits when the complaint is based on a written instrument. PLANET T’s Complaint is not based solely on a written instrument, contrarily, PLANET T’s counts are based off of an oral contract. Id. at 500, For the above stated reasons, FRANKLIN’s Motion to Dismiss on all counts based on failure to attach exhibits to the Complaint should be denied. IL Fraudulent Misrepresentation FRANKLIN next argues that PLANET T’s count I for fraudulent misrepresentation should be dismissed because it fails to state a cause of action. FRANKLIN argues that it is impossible for it not to have performed the promise PLANET T alleges in Paragraph 35 of the Complaint. In Paragraph 35 of the Complaint, PLANET T alleges that “Tom Rogers on behalf of FRANKLIN orally agreed that it PLANET T performed as promised, a contract would be immediately executed following the 2010-2011 back to school season.” Page 2 of 812. 13. 14. 16. 17. PLANET T made a scrivenor’s error in Paragraph 35 of the Complaint, as the correct back to school year is actually 2011-2012. This is the basis of FRANKLIN’s Motion to Dismiss Count I. However, this issue is moot as, PLANET T filed a Motion to Correct Scrivenor’s Error in Complaint on March 24, 2014. Additionally, FRANKLIN argues that PLANET T’s Count I for Fraudulent Misrepresentation should be dismissed for failure to state an actionable fraud. FRANKLIN argues that Mr. Rogers promised to sign a contract in the future and a promise to do something in the future is not an actionable fraud. . FRANKLIN cites to Sleight v. Sun & Surf Realty, Inc., 410 So.2d 998 (Fla. 3d DCA 1982) in support of its assertion that a false statement amounting to a promise to do something in the future is not actionable fraud. However, the Court also stated that a misrepresentation must “ordinarily relate to a past or existing fact to be the basis of a claim for relief sounding in fraud” and PLANET T alleges that Mr. Rogers misrepresented FRANKLIN’: intention to enter a contract in the future. /d. at 999, The misrepresentation related to a then-existing fact because Mr. Rogers, on behalf of FRANKLIN, was misrepresenting his intention, at that time, to enter into a contract. He misrepresented that he wanted to enter into a contract and that amounts to fraudulent misrepresentation according to Sleight. /d. Further, FRANKLIN argues that PLANET T’s Count I for Fraudulent Misrepresentation should be dismissed for failure to state a cause of action based upon Mr. Sznitken’s alleged actions. Mr. Sznitken’s statement asking for a full list of styles, sizes, and colors of the items supplied by PLANET T to Defendant was misrepresenting that he would use this information in negotiation during their planned meeting to sign the contract. Page 3 of 818. 19. 20. 21, 22, N Further, these were not the only misrepresentations that Mr. Sznitken made. Mr. Sznitken also advised PLANET T that a meeting would be set up soon to iron out details and sign the contract. These statements represented that FRANKLIN was going to sign the contract. Further, in a Motion to Dismiss, the Court is to take all the factual allegations alleged in the Complaint as true; therefore, the factual arguments are not proper for a Motion to Dismiss. For the above mentioned reasons, FRANKLIN’s Motion to Dismiss Count I, Fraudulent Misrepresentation, should be denied. Ill. Negligent Misrepresentation FRANKLIN next argues that PLANET T’s Count II for Negligent Misrepresentation should be dismissed because it fails to state a cause of action. FRANKLIN again argues impossibility due to the scrivenor’s error of 2010-2011 school year instead of the correct 2011-2012 school year. As stated above, this issue is moot as PLANET T filed its Motion to Correct Scrivenor’s Error on March 24, 2014. . FRANKLIN also argues that PLANET T cannot prevail in a claim for fraud or negligent misrepresentation because Florida law requires that the Plaintiff justifiably rely upon the false statement. FRANKLIN claims PLANET T could not justifiably rely upon an agreement to agree. . However, PLANET T can justifiably rely on FRANKLIN’s statement that it intends to enter into a contract after performance by PLANET T. PLANET T made a false statement about its then-existing intention to enter into a contract and PLANET T ordered custom-made uniforms and withheld from other business opportunities in reliance on same. Page 4 of 825, 26. 27. 28 29, 31. 32 Additionally, as stated above, Mr. Rogers’ statements are actionable fraud as they relate to FRANKLIN’s then-existing intention to fulfill its promise to enter into a contract. For the above stated reasons, FRANKLIN’s Motion to Dismiss Count II for negligent misrepresentation should be denied. IV. Breach of Oral Contract FRANKLIN next argues that PLANET T’s count III for breach of oral contract should be dismissed because it is barred by the Statute of Frauds. FRANKLIN argues that PLANET T alleges an oral contract which requires performance over a period between two and four years and in Florida an agreement which is not performed within one year must be in writing or it is barred by the Statute of Frauds. PLANET T has numerous emails from FRANKLIN representatives which comply with the Statute of Frauds. These emails outline the oral contract and is signed by FRANKLIN through email signature. . Additionally, Florida Courts have consistently held that when a party fully performs under an oral contract, the non-performing party cannot use the Statute of Frauds as a defense. Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1251, 1253 (Fla. 4" DCA 1982). PLANET T fully complied with the oral contract when it ordered specifically manufactured uniforms. However, even if the Court were to find that PLANET T did not fully perform and that there was not a written document to comply with the Statute of Frauds, PLANET T does not allege an oral contract that requires performance over a period between two and four years. Contrarily, PLANET T alleges that in March of 2012 Ivy Bernardo on Page 5 of 833. 35, 36. 37. behalf of FRANKLIN offered PLANET T to act as the exclusive uniform vendor for the 2012-2013 year and she would set up a meeting soon to sign the contract. Ms. Bernardo, on behalf of FRANKLIN, orally entered into a contract with PLANET T in March of 2012 in which PLANET T would order specifically manufactured uniforms and FRANKLIN would require its students to order uniforms exclusively from PLANET T. The signing of the official contract would occur at a meeting soon thereafter. Due to FRANKLIN’s promise, PLANET T ordered specifically manufactured uniforms. . FRANKLIN breached the oral contract when it refused to send its students to PLANET T for their school’s uniforms and for requesting PLANET T cease selling any inventory of specifically manufactured uniforms as of March 31, 2013. Further, Statute of Frauds is properly pled as an affirmative defense, not as grounds for a Motion to Dismiss. Affirmative defenses are not proper as grounds for a Motion to Dismiss, because it requires the Court to go beyond the four corners of the pleadings. Wausau Ins. Co. v. Haynes, 683 So.2d 1123, 1125 (Fla. 4" DCA 1996); Stucchio v. Huffstetler, 690 So.2d 753, 754 (Fla. 5" DCA 1997); and Conner v. Walt Disney Company, 827 So.2d 318, 319 (Fla. 5" DCA 2002). For the above stated reasons, FRANKLIN’s Motion to Dismiss Count III for breach of oral contract should be denied. Vv. Promissory Estoppel FRANKLIN next argues that PLANET T’s count IV for promissory estoppel should be dismissed because it fails to state a cause of action. Page 6 of 838. FRANKLIN again argues impossibility due to the scrivenor’s error of 2010-2011 school year instead of the correct 2011-2012 school year. As stated above, this issue is moot as PLANET T filed its Motion to Correct Scrivenor’s Error on March 24, 2014. 39. Further, FRANKLIN argues that promissory estoppel does not apply when a party is stating its intention to agree in the future. However, as explained supra, FRANKLIN did not make a statement to agree to something in the future, rather, FRANKLIN entered into an oral contract with PLANET T in March of 2012 in which PLANET T would order specifically manufactured uniforms and FRANKLIN would require its students to order uniforms exclusively from PLANET T. The signing of the official contract would occur at a meeting soon thereafter. Due to FRANKLIN’s promise, PLANET T ordered specifically manufactured uniforms. 40. FRANKLIN argues that promissory estoppel is not an exception to the statute of frauds. However, PLANET T never argues that it is and as explained supra, the oral contract does not violate the statute of frauds. WHEREFORE, Plaintiff, PLANET T UNIFORMS, INC., respectfully requests this Honorable Court deny Defendant, FLORIDA CHARTER FOUNDATION, INC. D/B/A FRANKLIN ACADEMY CHARTER SCHOOL’s, Motion to Dismiss, and such further relief as this Court deems just and proper. CERTIFICATE OF SERVICE J 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 March 24, 2014. FLORIDA LITIGATION LAW FIRM The Law Offices of David Di Pietro, P.A. Legacy Bank Building 12 SE 7" Street, Suite 606 Fort Lauderdale, FL 33301 Page 7 of 8Primary: service@floridalitigationlawfirm.com 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 SERVICE LIST Christopher M. David, Esq. Fuerst Ittleman David & Joseph, PL 1001 Brickell Bay Drive, 32™ Floor Miami, Florida 33131 Emails: cdavid@fuerstlaw.com; tdavid@fuerstlaw.com; And jconcepcion@fuerstlaw.com Page 8 of 8