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Filing # 141264941 E-Filed 01/03/2022 11:46:24 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
MELISSA HANSLER,
Plaintiff,
vs.
VCA UNITED, LLC., a Florida Limited CASE NO.: 50-2021-CA-010716-XXXX-MB
Te : ian CTVTT DIVICTON. AT
Liability Company, and JAMES ee
HANSLER, individually,
Defendants.
/
PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO
DISMISS
MELISSA L. HANSLER (“Ms. Hansler” or “Plaintiff’), by and through undersigned
counsel, pursuant to applicable Florida law, hereby files her Response in Opposition to the Motion
to Dismiss filed by Defendants, VCA United LLC (“VCA”) and James Hansler (“Mr. Hansler”)
(collectively, “Defendants”), and states:
BACKGROUND
Ale On September 15, 2021, Plaintiff filed her eight (8) count Complaint against
Defendants, including breach of fiduciary duties (Count IV), and breach of a Temporary Relief
Agreement (Count III) entered into by the parties, among other claims.
2. On October 11, 2021, Defendants filed their Answer and Affirmative Defenses and
a Motion to Dismiss, attacking Count III and Count IV of the Complaint (“Motion to Dismiss”).
SUMMARY OF ARGUMENT
3. Jn their Motion to Dismiss, Defendants assert:
a. Plaintiff failed to state a cause of action for breach of fiduciary duty under Florida
Statute § 605.04091;
b. Plaintiff lacks standing to bring a direct action for breach of fiduciary duty because
only harm suffered by the company itself is alleged in the Compiaint; and
c. The Temporary Relief Agreement is moot by way of Final Judgment being entered,
1
CHEN. DAIAARCACUAALINTY Cl INCEDU ARDIIV7ZN FLEDIZ N4INIQINNAD 44.4294 DNA
HILLY. PAL DLA VUUINE TT, PL, JUOL IIE mDnUeey, ULUIAN, Uuleue. tut citand the family court is the proper court to consider such a claim.
4. Defendants’ arguments fail because:
a. Plaintiff's Complaint sufficiently alleges Mr. Hansler’s breach of fiduciary duties
owed to Plaintiff as a member of the company, including his failure to act as trustee
of property or profit of the company under Fla. Stat. § 605.04091(2)(a);
b. The controlling law in this District does not require separate allegations of harm
suffered by the company, as distinct from a company’s owner; as Mr. Hansler owes
separate and distinct duties to Plaintiff, either in her individual capacity, or those
reflective of her company ownership; and
c. The conduct that forms the basis of Plaintiffs Count III is conduct that occurred
prior to entry of Final Judgment and execution of the parties’ Marital Settlement
Agreement (“MSA”), and the MSA includes language indicating that certain issues
contained in Temporary Relief Agreement remain enforceable.
5. Therefore, Defendants’ Motion to Dismiss should be denied on all grounds.
ARGUMENT
A. Motion to Dismiss Standard.
6. “A motion to dismiss should not be granted if the complaint sets forth facts upon
which relief can be granted upon any theory.” Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364
(Fla. 4th DCA 1981).
7. A motion to dismiss is a drastic remedy that shouid only be granted when it appears
beyond any doubt that the plaintiff could prove no set of facts whatever in support of his or her
claim. See Hillman Constr. Corp. v. Wainer, 636 So. 2d 576, 578 (Fla. 4th DCA 1994); Midflorida
Sch. Fed. Credit Union v. Fansler, 404 So. 2d 1178, 1180 (Fla. 2d DCA 1981); see also Oguz v.
Oguz, 478 So. 2d 437, 440 (Fla. Sth DCA 1985) (“Motions to dismiss are looked on with disfavor
by the court, and are granted sparingly and with care”). “To state a cause of action, a complaint
must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Samuels v. King
Martane On nf Bavt TV nudavdala 729 Gan IA ACD ADE (Ta Ath DOA INDI\ “Whan datarmining the
wmGtor U0, G7 POrt Lauder ame, 102 G0. 20707, 479 Wid. FU Un 2uuiy. wien Geir, ue
merits of a motion to dismiss, the trial court's consideration is limited to the four corners of thecomplaint, the allegations of which must be accepted as true and considered in the light most
favorable to the nonmoving party.” Bell v. Indian River Mem. Hosp., 778 So. 2d 1030, 1032 (Fla.
4th DCA 2001). That is, the Court must draw all reasonable inferences in plaintiff's favor. Vienneau
v. Metropolitan Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989); Salit v. Ruden, McCloskey,
Smith, Schusler & Russell, PA, 742 So. 2d 381, 383 (Fla. 4th DCA 1999).
B. Plaintiff's Complaint Sufficiently Alleges Mr. Hansler’s Breach Of Fiduciary Duties
Owed To Plaintiff As a Member Of The Company.
8. Plaintiff has pled that, as managing-member of the company, Mr. Hansler owed
duties of loyalty and care to the company and its members. See Complaint at | 82; Fla. Stat. §
605.04091(1).
9. Plaintiff has pled both breaches of duties of loyalty and duty of care, and those
allegations are combined in Paragraphs 89(a)-(h) of the Complaint.
10. Pursuant to Florida law, the duty of loyalty includes accounting to the company
and holding as trustee for it any property, profit, or benefit derived by the member from the use of
the company’s property. Fla. Stat. § 605.0409 1(2)(a)(2).
11. Plaintiffhas pled that Mr. Hansler managed the accounting and financial operations
of VCA and attempted to funnel, launder, or otherwise transfer and abscond with assets of VCA,
among other actions, in direct contravention of the fiduciary duty of loyalty owed by him to
Plaintiff, as a member of VCA. See Complaint at J] 85, 89(c).
12.
engaging in grossly negligent or reckless conduct, or willful or intentional misconduct in the
conduct of the company’s activities and affairs. Fla. Stat. § 605.04091(3).
13. Plaintiffhas pled that Mr. Hansler’s conduct constitutes combined breaches of duties
of loyalty and duties of care by, among other things:e Failing to use the proper duty of care and improperly winding up the company’s
activities or affairs, to the detriment of the company and its members; See Complaint at
189)
* Unilaterally closing VCA without any regard for VCA’s clients, customers, independent
contractors and sources of revenue; See Complaint at J 89(a)
¢ Withholding payroll to VCA employees and independent contractors essential to VCA’s
operations: See Complaint at {| 89(d)
e Failing to make payments on financed equipment necessary to operate VCA; See
Complaint at |] 89(e)
¢ Failing to obtain or fund equipment necessary to operate VCA; See Complaint at § 89(f)
e Failing to find nhone lines n
ating to find phone lines n
essarv to onerate VCA: See Comnlaint at € 89(0)
Saag we Npestes 6 tay Wee Svssspetaces Sey SoD
e Failing to fund and maintain software necessary to operate VCA; See Complaint at |
89(h)
¢ Failing to use the proper duty of care and improperly winding up the company’s
activities or affairs by engaging in reckless conduct with total disregard to VCA’s
clients, customers, and indenendent contractors, See Comnlaint at { 89(b)
14. Therefore, Plaintiff has sufficiently pled Mr. Hansler’s breach of fiduciary duties
owed to her as a member, and dismissal of Count IV for failure to state a cause of action would be
improper.
C. Plaintiff Is Not Required To Allege Harm Separate From That Suffered By The
Company, As Distinct From A Company’s Owner; Mr. Hansler Owes Separate and
Distinct Duties to Plaintiff, Either In Her Individual Capacity, or In Her Capacity on
Behalf of the Company.
15. | Where, as here, a plaintiff is owed separate duties of loyalty and care in her
individual capacity (e.g. as member who is owed fiduciary duties of loyalty and care by the
managing-member of the company. Fla. Stat. § 605.04091(1)), the Fourth District Court of Appeal
looked beyond the traditional two-prong test! for distinguishing direct actions by shareholders or
! Which includes (1) direct harm to the shareholder or member such that the alleged injury does not flow subsequently
from an initial harm to the company and (2) a special injury to the shareholder or member that is separate and distinct
from those sustained by the other shareholders or members.
4member of a company, in Strazzulla v. Riverside Banking Co., 175 So. 3d 879, 884 (Fla. 4th DCA
2015), when a separate duty is owed by the defendant(s) to the individual plaintiff under
contractual or statutory mandates.
16. Here, Plaintiff has standing to bring a direct action against Mr. Hansler for breach
of fiduciary duty owed to her in her individual capacity as a member, because Mr. Hansler owes
separate fiduciary duties of loyalty and care to Plaintiff individually. Fla. Stat. § 605.04091(1).
D. The Conduct Forming the Basis of Count III Occurred Prior to Entry of Final
Judgment and Execution of the MSA.
17. Conduct that occurred prior to entry of the Final Judgment and MSA survives the
Final Judgment and MSA, and a violation of the Temporary Relief Agreement is a proper cause of
action.
18. Plaintiff pled that the parties entered into the Temporary Relief Agreement in which
Mr. Hansler agreed to endorse all VCA outstanding checks within 24 hours and deposit them into
the undersigned’s Trust account; however, Mr. Hansler failed to endorse all of the checks, instead
holding selected checks in another account solely controlled by Mr. Hansler, preventing the debts
from being paid in the order and priority agreed to, leaving VCA debts unpaid. See Complaint at {J
37-40, 72-77.
19. Plaintiff pled that these actions constituted material breaches of the Temporary
Relief Agreement by Mr. Hansler. See Complaint at { 78.
an
LU.
1n AAAN 4
1Z, ZUZU, and
Final Judgment of Dissolution of Marriage which was entered on February 14, 2020.
? Like Defendants, Plaintiff does not attach the MSA due to its sensitive nature, and will provide it to the Court at the
hearing on Defendants’ Motion to Dismiss.21. Mr. Hansler’s breach of the Temporary Relief Agreement occurred when he did not
endorse and deposit checks as he was required to, within 24 hours of June 12, 2019, which was
prior to entry of both the MSA and Final Judgment.
22. Therefore, conduct that occurred prior to entry of the MSA and Final Judgment may
properly form the basis for a cause of action for breach of the Temporary Relief Agreement.
23. Furthermore, the Temporary Relief Agreement addresses issues not contained in the
MSA, such as the procedure for paying outstanding VCA debts. While paragraph 28 of the MSA
provides that the MSA is the entire agreement as to the subjects covered by the MSA, the
procedure for paying outstanding VCA debts is not included in it.
24. Accordingly, the parties intended for aspects of the Temporary Relief Agreement
not covered by the MSA to remain enforceable, specifically including the provisions of it that set
forth the procedures for paying outstanding VCA debts.
25. In fact, the releases in paragraphs 17 and 18 of the MSA specifically exclude claims
relating to VCA—another indication that the parties intended the Temporary Relief Agreement to
remain enforceable.
26. Thus, it 1s clear that the parties intended the Temporary Relief Agreement to remain
enforceable as to the issues not contained in the MSA, and therefore, dismissal of Count III of the
Complaint would be improper.
CONCLUSION
For all the foregoing reasons, Plaintiffrespectfully requests that the Court deny Defendants’
Motion to Dismiss.
WHEREFORE, Plaintiff, MELISSA L. HANSLER, respectfully requests that the Court
law an Ordar (1\ ENVING Dafandante? Matinn ta Diemice: an AD’ antacin. 1 Faethar valia£
enter af Craer Gy DENYING Deienaants’ Mouon to Dismiss; and (2) catering any ruruier reret
as the Court deems just and proper.CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the
Florida ePortal and furnished via electronical mail to all counsel of record on this 3rd day of
January 2022.
THE MARKARIAN GROUP
Attorneys for Plaintiff
2925 PGA Boulevard, Suite 204
Palm Beach Gardens, Florida 33410
Telephone: (561) 626-4700
Facsimile: (561) 627-9479
By: /s/ David K. Markarian
David K. Markarian
Florida Bar No. 480691
David R. Glickman
Florida Bar No. 118685
Preview
Filing # 141264941 E-Filed 01/03/2022 11:46:24 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA MELISSA HANSLER, Plaintiff, vs. VCA UNITED, LLC., a Florida Limited CASE NO.: 50-2021-CA-010716-XXXX-MB Te : ian CTVTT DIVICTON. AT Liability Company, and JAMES ee HANSLER, individually, Defendants. / PLAINTIFF’S RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS MELISSA L. HANSLER (“Ms. Hansler” or “Plaintiff’), by and through undersigned counsel, pursuant to applicable Florida law, hereby files her Response in Opposition to the Motion to Dismiss filed by Defendants, VCA United LLC (“VCA”) and James Hansler (“Mr. Hansler”) (collectively, “Defendants”), and states: BACKGROUND Ale On September 15, 2021, Plaintiff filed her eight (8) count Complaint against Defendants, including breach of fiduciary duties (Count IV), and breach of a Temporary Relief Agreement (Count III) entered into by the parties, among other claims. 2. On October 11, 2021, Defendants filed their Answer and Affirmative Defenses and a Motion to Dismiss, attacking Count III and Count IV of the Complaint (“Motion to Dismiss”). SUMMARY OF ARGUMENT 3. Jn their Motion to Dismiss, Defendants assert: a. Plaintiff failed to state a cause of action for breach of fiduciary duty under Florida Statute § 605.04091; b. Plaintiff lacks standing to bring a direct action for breach of fiduciary duty because only harm suffered by the company itself is alleged in the Compiaint; and c. The Temporary Relief Agreement is moot by way of Final Judgment being entered, 1 CHEN. DAIAARCACUAALINTY Cl INCEDU ARDIIV7ZN FLEDIZ N4INIQINNAD 44.4294 DNA HILLY. PAL DLA VUUINE TT, PL, JUOL IIE mDnUeey, ULUIAN, Uuleue. tut citand the family court is the proper court to consider such a claim. 4. Defendants’ arguments fail because: a. Plaintiff's Complaint sufficiently alleges Mr. Hansler’s breach of fiduciary duties owed to Plaintiff as a member of the company, including his failure to act as trustee of property or profit of the company under Fla. Stat. § 605.04091(2)(a); b. The controlling law in this District does not require separate allegations of harm suffered by the company, as distinct from a company’s owner; as Mr. Hansler owes separate and distinct duties to Plaintiff, either in her individual capacity, or those reflective of her company ownership; and c. The conduct that forms the basis of Plaintiffs Count III is conduct that occurred prior to entry of Final Judgment and execution of the parties’ Marital Settlement Agreement (“MSA”), and the MSA includes language indicating that certain issues contained in Temporary Relief Agreement remain enforceable. 5. Therefore, Defendants’ Motion to Dismiss should be denied on all grounds. ARGUMENT A. Motion to Dismiss Standard. 6. “A motion to dismiss should not be granted if the complaint sets forth facts upon which relief can be granted upon any theory.” Orlovsky v. Solid Surf, Inc., 405 So. 2d 1363, 1364 (Fla. 4th DCA 1981). 7. A motion to dismiss is a drastic remedy that shouid only be granted when it appears beyond any doubt that the plaintiff could prove no set of facts whatever in support of his or her claim. See Hillman Constr. Corp. v. Wainer, 636 So. 2d 576, 578 (Fla. 4th DCA 1994); Midflorida Sch. Fed. Credit Union v. Fansler, 404 So. 2d 1178, 1180 (Fla. 2d DCA 1981); see also Oguz v. Oguz, 478 So. 2d 437, 440 (Fla. Sth DCA 1985) (“Motions to dismiss are looked on with disfavor by the court, and are granted sparingly and with care”). “To state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Samuels v. King Martane On nf Bavt TV nudavdala 729 Gan IA ACD ADE (Ta Ath DOA INDI\ “Whan datarmining the wmGtor U0, G7 POrt Lauder ame, 102 G0. 20707, 479 Wid. FU Un 2uuiy. wien Geir, ue merits of a motion to dismiss, the trial court's consideration is limited to the four corners of thecomplaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmoving party.” Bell v. Indian River Mem. Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001). That is, the Court must draw all reasonable inferences in plaintiff's favor. Vienneau v. Metropolitan Life Ins. Co., 548 So. 2d 856, 858 (Fla. 4th DCA 1989); Salit v. Ruden, McCloskey, Smith, Schusler & Russell, PA, 742 So. 2d 381, 383 (Fla. 4th DCA 1999). B. Plaintiff's Complaint Sufficiently Alleges Mr. Hansler’s Breach Of Fiduciary Duties Owed To Plaintiff As a Member Of The Company. 8. Plaintiff has pled that, as managing-member of the company, Mr. Hansler owed duties of loyalty and care to the company and its members. See Complaint at | 82; Fla. Stat. § 605.04091(1). 9. Plaintiff has pled both breaches of duties of loyalty and duty of care, and those allegations are combined in Paragraphs 89(a)-(h) of the Complaint. 10. Pursuant to Florida law, the duty of loyalty includes accounting to the company and holding as trustee for it any property, profit, or benefit derived by the member from the use of the company’s property. Fla. Stat. § 605.0409 1(2)(a)(2). 11. Plaintiffhas pled that Mr. Hansler managed the accounting and financial operations of VCA and attempted to funnel, launder, or otherwise transfer and abscond with assets of VCA, among other actions, in direct contravention of the fiduciary duty of loyalty owed by him to Plaintiff, as a member of VCA. See Complaint at J] 85, 89(c). 12. engaging in grossly negligent or reckless conduct, or willful or intentional misconduct in the conduct of the company’s activities and affairs. Fla. Stat. § 605.04091(3). 13. Plaintiffhas pled that Mr. Hansler’s conduct constitutes combined breaches of duties of loyalty and duties of care by, among other things:e Failing to use the proper duty of care and improperly winding up the company’s activities or affairs, to the detriment of the company and its members; See Complaint at 189) * Unilaterally closing VCA without any regard for VCA’s clients, customers, independent contractors and sources of revenue; See Complaint at J 89(a) ¢ Withholding payroll to VCA employees and independent contractors essential to VCA’s operations: See Complaint at {| 89(d) e Failing to make payments on financed equipment necessary to operate VCA; See Complaint at |] 89(e) ¢ Failing to obtain or fund equipment necessary to operate VCA; See Complaint at § 89(f) e Failing to find nhone lines n ating to find phone lines n essarv to onerate VCA: See Comnlaint at € 89(0) Saag we Npestes 6 tay Wee Svssspetaces Sey SoD e Failing to fund and maintain software necessary to operate VCA; See Complaint at | 89(h) ¢ Failing to use the proper duty of care and improperly winding up the company’s activities or affairs by engaging in reckless conduct with total disregard to VCA’s clients, customers, and indenendent contractors, See Comnlaint at { 89(b) 14. Therefore, Plaintiff has sufficiently pled Mr. Hansler’s breach of fiduciary duties owed to her as a member, and dismissal of Count IV for failure to state a cause of action would be improper. C. Plaintiff Is Not Required To Allege Harm Separate From That Suffered By The Company, As Distinct From A Company’s Owner; Mr. Hansler Owes Separate and Distinct Duties to Plaintiff, Either In Her Individual Capacity, or In Her Capacity on Behalf of the Company. 15. | Where, as here, a plaintiff is owed separate duties of loyalty and care in her individual capacity (e.g. as member who is owed fiduciary duties of loyalty and care by the managing-member of the company. Fla. Stat. § 605.04091(1)), the Fourth District Court of Appeal looked beyond the traditional two-prong test! for distinguishing direct actions by shareholders or ! Which includes (1) direct harm to the shareholder or member such that the alleged injury does not flow subsequently from an initial harm to the company and (2) a special injury to the shareholder or member that is separate and distinct from those sustained by the other shareholders or members. 4member of a company, in Strazzulla v. Riverside Banking Co., 175 So. 3d 879, 884 (Fla. 4th DCA 2015), when a separate duty is owed by the defendant(s) to the individual plaintiff under contractual or statutory mandates. 16. Here, Plaintiff has standing to bring a direct action against Mr. Hansler for breach of fiduciary duty owed to her in her individual capacity as a member, because Mr. Hansler owes separate fiduciary duties of loyalty and care to Plaintiff individually. Fla. Stat. § 605.04091(1). D. The Conduct Forming the Basis of Count III Occurred Prior to Entry of Final Judgment and Execution of the MSA. 17. Conduct that occurred prior to entry of the Final Judgment and MSA survives the Final Judgment and MSA, and a violation of the Temporary Relief Agreement is a proper cause of action. 18. Plaintiff pled that the parties entered into the Temporary Relief Agreement in which Mr. Hansler agreed to endorse all VCA outstanding checks within 24 hours and deposit them into the undersigned’s Trust account; however, Mr. Hansler failed to endorse all of the checks, instead holding selected checks in another account solely controlled by Mr. Hansler, preventing the debts from being paid in the order and priority agreed to, leaving VCA debts unpaid. See Complaint at {J 37-40, 72-77. 19. Plaintiff pled that these actions constituted material breaches of the Temporary Relief Agreement by Mr. Hansler. See Complaint at { 78. an LU. 1n AAAN 4 1Z, ZUZU, and Final Judgment of Dissolution of Marriage which was entered on February 14, 2020. ? Like Defendants, Plaintiff does not attach the MSA due to its sensitive nature, and will provide it to the Court at the hearing on Defendants’ Motion to Dismiss.21. Mr. Hansler’s breach of the Temporary Relief Agreement occurred when he did not endorse and deposit checks as he was required to, within 24 hours of June 12, 2019, which was prior to entry of both the MSA and Final Judgment. 22. Therefore, conduct that occurred prior to entry of the MSA and Final Judgment may properly form the basis for a cause of action for breach of the Temporary Relief Agreement. 23. Furthermore, the Temporary Relief Agreement addresses issues not contained in the MSA, such as the procedure for paying outstanding VCA debts. While paragraph 28 of the MSA provides that the MSA is the entire agreement as to the subjects covered by the MSA, the procedure for paying outstanding VCA debts is not included in it. 24. Accordingly, the parties intended for aspects of the Temporary Relief Agreement not covered by the MSA to remain enforceable, specifically including the provisions of it that set forth the procedures for paying outstanding VCA debts. 25. In fact, the releases in paragraphs 17 and 18 of the MSA specifically exclude claims relating to VCA—another indication that the parties intended the Temporary Relief Agreement to remain enforceable. 26. Thus, it 1s clear that the parties intended the Temporary Relief Agreement to remain enforceable as to the issues not contained in the MSA, and therefore, dismissal of Count III of the Complaint would be improper. CONCLUSION For all the foregoing reasons, Plaintiffrespectfully requests that the Court deny Defendants’ Motion to Dismiss. WHEREFORE, Plaintiff, MELISSA L. HANSLER, respectfully requests that the Court law an Ordar (1\ ENVING Dafandante? Matinn ta Diemice: an AD’ antacin. 1 Faethar valia£ enter af Craer Gy DENYING Deienaants’ Mouon to Dismiss; and (2) catering any ruruier reret as the Court deems just and proper.CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was filed with the Florida ePortal and furnished via electronical mail to all counsel of record on this 3rd day of January 2022. THE MARKARIAN GROUP Attorneys for Plaintiff 2925 PGA Boulevard, Suite 204 Palm Beach Gardens, Florida 33410 Telephone: (561) 626-4700 Facsimile: (561) 627-9479 By: /s/ David K. Markarian David K. Markarian Florida Bar No. 480691 David R. Glickman Florida Bar No. 118685