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Filing # 132595452 E-Filed 08/12/2021 06:44:58 PM
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA.
EXPERIMAX FRANCHISING, LLC, CASE NO: 502021CA001626XXXXMB
Plaintiff, DIVISION: AO
vs.
JEFFERY SIEPIERSKI, GINA FONTANA-
SIEPIERSKI, and BLUTUSK TECH, LLC,
Defendants.
JEFFERY SIEPIERSKI; GINA FONTANA-
OIMNMNevT. ..4 DITITTIOY THATT TT
OLOPLOENONE, au, DLUULUOK 10UN, LLL,
Counter-Plaintiffs/Third-Party Plaintiffs,,
vs.
EXPERIMAX FRANCHISING, LLC;
EXPERTMAC FRANCHISING, LLC:
UFG GROUP, INC. d/b/a UNITED FRANCHISE
GROUP; and, HEALTH CLUB EXPERTS.COM,
LLC d/b/a BUSINESS FINANCE DEPOT,
Counter-Defendant and Third-Party Defendants.
/
THIRD-PARTY DEFENDANT, UFG GROUP, INC.’S MOTION TO DISMISS THIRD-
PARTY PLAINTIFFS’ COMPLAINT AGAINST UFG GROUP, INC.
AND/OR MOTION FOR MORE DEFINITE STATEMENT
UFG GROUP, INC. (“UFG Group”), by and through the undersigned counsel, and
pursuant to Florida Rule of Civil Procedure 1.140 moves to dismiss Third-Party Plaintiffs’ Third-
Party Complaint against UFG Group or in the alternative for a provide a more definite statement,
and in support thereof, states as follows:
CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN FLED NaMginnns neAs-FQ DN
Hn. PAL DLA VUUINE TT, FL, VUOL I mDnUueey, ULLIAN, Yor i2i2ue) vu. gu itINTRODUCTION
1. Third-Party Plaintiffs JEFFERY SIEPIERSKI; GINA FONTANA-SIEPIERSKI;
and, BLUTUSK TECH, LLC (collectively, “Franchisees”) were sued by EXPERIMAX
FRANCHISING, LLC (“Experimax”) for breaching the franchise agreement by failing to pay the
required royalty and marketing payments and operating a competitive business.
2. Franchisees have now added a third-party complaint against UFG Group for
fraudulent inducement, violation of the Florida Fraudulent and Deceptive Trade Practices Act
(“FDUTPA”), negligent misrepresentation, and civil conspiracy (the “Third-Party Complaint”).
3. The causes of action alleged by Franchisees against Experimac suffer from multiple
pleading deficiencies, including the pleading of certain causes of action which must legally fail
due to representations made by Franchisees (contained in the exhibit to their third-party complaint)
which they cannot avoid.
4. Alternatively, the Third-Party Complaint should be amended because it is not clear
from the pleading which acts were committed by UFG Group, Experimax, or EXPERIMAC
FRANCHISING, LLC (“Experimac”) because each of the parties and their actions are conflated
together.
5. Franchisees alleged insufficient facts that UFG Group should be a party to the
instant lawsuit by relying solely on the facts that UFG Group, Experimax, and Experimac share
the same office address, registered agent, and some UFG Group officer and directors are also
officers and directors for Experimax and Experimac.
6. In analyzing Franchisees’ pleading a pattern emerges wherein, that despite
Franchisees noting that the third-party defendants and counter-defendant are separate parties,Experimac, UFG Group, and Experimax are continually conflated as the same party for purposes
of ascribing the actions of one as also performed by each of the others.
7. Therefore, all Counts against UFG Group should be dismissed or in the alternative,
Franchisees should be required to amend the pleading to allow Experimac to properly respond to
the allegations against it and not related to other parties.
STATEMENT OF FACTS
8. On May 11, 2016, Experimac entering into a franchise agreement with Jeffrey
Siepierski and Gina Fontana-Siepierski. See Third-Party Complaint at { 1.
9. The parties executed an addendum to the Franchise Agreement on October 27,
2016, adding BluTusk Tech, LLC as a co-franchisee. See Third-Party Complaint Ex. 1, Addendum
to Franchise Agreement, generally.
10. Pursuant to the Franchise Agreement, Franchisees attested that they did not rely
upon any statements by Experimac prior to entering into the Franchise Agreement. See Third-Party
Complaint at Ex. 1.
11. Experimac subsequently assigned the Franchise Agreement to Experimax. See
Third-Party Compiaint at 7 3.
12. Experimax filed suit against Franchisees alleging breach of franchise agreement
due to Franchisees’ failure to pay the contractual royalty and marketing fees and Franchisees’
operation of a competing business. See Third-Party Complaint at 13.
13. Franchisees have now filed a Third-Party Complaint against UFG Group among
other parties alleging that Experimac fraudulently induced Franchisees into signing the Franchise
Agreement, violated FDUTPA, committed negligent misrepresentation, and was part of a civil
annanivant againet Dranshicaas Cae Third Dart: Camnlaint sanarallyr
COlspiacy against rrancniseys. vee iitusr airy UVOnpiain, Bunerany.MOTION TO DISMISS STANDARD
14. | When deciding on a motion to dismiss, a Florida trial court is confined to the four
comers of the complaint. Peterson v. Pollack, 290 So. 3d 102, 105 (Fla. 4th DCA 2020).
15. The test for whether a plaintiff has stated a cause of action is whether the pleader
could prove any set of facts that would support his or her claims. Ingalsbe v. Stewart Ag., Inc., 869
So. 2d 30, 35 (Fla. 4th DCA 2004).
16. The facts alleged in a pleading must be accepted as true, and all reasonable
inferences must be drawn in favor of the pleader. Wallisville Corp. v. McGuinness, 154 So. 3d
501, 503 (Fla. 4th DCA 2015). However, “conclusory allegations are insufficient.” Stein v. BBX
Cap. Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018).
17. Thus, a pleading must contain the ultimate facts supporting each element of each
cause of action alleged. Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905, 907 (Fla. 2010).
18. Additionally, exhibits to a complaint can serve as a basis for dismissing a complaint
for failure to state a cause of action if the exhibits actually negate the cause of action. Fladell v.
Palm Beach Cty. Canvassing Bd., 2000 Fla. LEXIS 2590, at *4 (Dec. 1, 2000).
ARGUMENT
A. Pursuant to the Terms of the Franchise Agreement, Third-Party Plaintiffs did not
Rely on any Representations by UFG Group.
19. Franchisees third-party complaint alleges in multiple places that UFG Group made
”
Tepreseniauions tat maucea Prancnisees to “Enler into tTansaclions, mcludimg ine Agreement...
See Third-Party Complaint at §f 137-142 (Count for Fraudulent Misrepresentation); fJ 180-181,
183, 185 (Count for Negligent Misrepresentation); 188 (Count of Breach of Contract); § 202,
204 and 205 (Civil Conspiracy).20. ‘Further, Franchisees seek relief under FDUTPA for acts arising out of the
“negotiation of, or entry into” the Franchise Agreement. See Third-Party Complaint at { 164; see
also Third-Party Complaint at Count V generally (Declaratory Judgment for Violation of
FDUTPA).
21. The terms in the Franchise Agreement that do not correspond with the facts alleged
in the Third-Party Complaint should be considered true and control over the Third-Party
Complaint’s allegations.
22. Under Florida law, where the language of an exhibit to a pleading is inconsistent
with the pleading, the language of the exhibit controls. Haslett v. Broward Health Imperial Point
Med. Ctr., 197 So. 3d 124, 127 (Fla. 4th DCA 2016).
23. Moreover, it is established that “[a] party cannot recover in fraud for alleged oral
misrepresentations that are adequately covered or expressly contradicted in a later written
contract.” Mac-Gray Servs. v. DeGeorge, 913 So. 2d 630, 634 (Fla. 4th DCA 2005).
24. The Third-Party Complaint attached the Franchise Agreement as Exhibit “A” to the
pleading.
25. Throughout the Third-Party Compiaint, Franchisees make allegations that are in
opposite to the Franchise Agreement.
26. Franchisees repeatedly claim that they were provided false and misleading that the
West Palm Beach store was a “typical store.” See Third-Party Complaint at 7 53.
27. Yet the franchise agreement, signed by all parties, clearly provides that:
YOU SPECIFICALLY ACKNOWLEDGE THAT THERE IS NO EXPERIMAC
STORE THAT MAY BE CONSIDERED TO BE A “TYPICAL” OR
“AVERAGE” CENTER.
Cae Third Dart Camnlaint By 1 Deanshica Aaraamant atnn 2497
ce 1itosr arly WOnipiallie OA, 1, rrancnise mE eum, at pp. 20-27.28.
Franchisees also make claims that they were provided with false and misleading
representations to induce Franchisees to sign the Franchise Agreement.
29.
In contravention of said claim, the Franchise Agreement states:
EXM MAKES NO REPRESENTATIONS OR GUARANTEES AS TO
NET/GROSS SALES, PROFITS, COSTS OR EARNINGS YOU CAN EXPECT.
YOU ARE NOT ENTITLED TO ANY COMPENSATION OR
REIMBURSEMENT FOR LOSS OF PROSPECTIVE PROFITS, ANTICIPATED
SALES, OR OTHER LOSSES OCCASIONED BY CANCELLATION OR
TERMINATION.
See Third-Party Complaint Ex. 1, Franchise Agreement, at p. 27.
30.
Franchisees further claim that they relied upon statements by Experimax and the
third-party defendants to their detriment in signing the Franchise Agreement.
31.
However, the Franchise Agreement states:
NO PERSON IS AUTHORIZED TO GIVE ANY REPRESENTATIONS OTHER
THAN THOSE CONTAINED OR INCORPORATED N THIS FRANCHISE
AGREEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED.
See Third-Party Complaint Ex. 1, Franchise Agreement, at p. 27.
32.
Additionally, with respect to the allegations regarding that Experimax defrauded
Franchisees and Franchisees relied on statements outside of the Franchise Disclosure Document
that are asserted in the Third-Party Complaint, Franchise acknowledged in Section Eighteen of the
Franchise Agreement that Franchisees relied on no pre-contractual statements:
..tiat You fave been told that if there are any pre-Contiactual statements
which You consider have been made to You which have induced You to
enter into this Agreement, You are obliged to submit the particulars thereof
to EXM so that any misconceptions or misunderstandings can be resolved.
In such case, an agreed form of pre-contractual statements upon which You
relied on may be annexed to and made part of this Agreement;ii. You have been given the opportunity to provide EXM particulars of any
precontractual statements which You consider have been made to You
which have induced You to enter into this Agreement; and
iii. this Agreement therefore contains the entire agreement between the parties
and accordingly no pre-contractual statements shall add to or vary this
Agreement or be of any force or effect unless such pre-contractual
statements are either contained in this Agreement or in an annex to it, and
You waive any right You may have to sue for damages and/or rescind this
Agreement for any pre-contractual statements not contained in this
Agreement or an annex to it. Nothing in this Agreement or in any related
agreement, however, is intended to disclaim the representations made in the
Disclosure Document that EXM furnished to You. Nothing within this
Agreement shall be considered a waiver of reliance by You of the
representations made in the Disclosure Document or its exhibits or
amendments.”
See Third-Party Complaint Ex. 1, Franchise Agreement, at p. 24.
33. The terms of the Franchise Agreement should be interpreted as true over any
contradictory statements in the Third-Party Complaint and said contradictory statements should be
stricken which would remove the factual allegations required for the fraudulent inducement,
negligent misrepresentation, and breach claims against Experimax made prior to signing the
Franchise Agreement.
34. Since Franchisees did not rely on UFG Group’s alleged representations,
Franchisees cannot maintain their fraud and breach claims based on misrepresentations.
35. Therefore, Counts I, IV, V, VI, VII, and IX should be dismissed.
B. Third-Party Plaintiffs Fail to Plead Fraudulent Inducement with the Particularity
Required Under Florida Law.
36. A fraudulent inducement claim requires: “(1) a false statement of material fact; (2)
the maker of the false statement knew or should have known of the falsity of the statement; (3) the
maker intended that the false statement induce another's reliance; and (4) the other party justifiablyrelied on the false statement to its detriment.” Prieto v. Smook, Inc., 97 So. 3d 916, 917. (Fla. 4th
DCA 2012).
37. As previously stated in Section A of this Motion, Franchisees acknowledged in the
Franchise Agreement that they did not rely on any statements by UFG Group. Consequently,
Franchisees did not justifiably rely on any alleged false statement by UFG Group to their detriment.
38. Moreover, “[iJn order for a claim of fraud in the inducement to withstand a motion
to dismiss, it must allege fraud with the requisite particularity required by Florida Rule of Civil
Procedure 1.120(b), including who made the false statement, the substance of the false statement,
the time frame in which it was made and the context in which the statement was made.” Eagletech
Communs., Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 861-62 (Fla. 4th DCA 2012) quoting
Bankers Mut. Capital Corp. v. U.S. Fid. & Guar. Co., 784 So. 2d 485, 490 (Fla. 4th DCA 2001).
39. | The Third-Party Complaint never differentiates the actions of Experimac to those
of UFG Group.
40. Instead, each is simply considered the same party:
a. As a direct and proximate result of Experimac and UFG providing Jeff
and Gina with inaccurate and misleading financial information concerning
the amount of capttai needed to get an Experimac store up and running in
2016, in reliance on this misinformation, Jeff and Gina were induced to pay
a $49,500.00 franchise establishment fee to Experimac, and incurred other
expenses associated with the startup of their Orchard Park Experimac Store,
and accordingly, were damaged.
See Third-Party Complaint at § 45.
b. As a direct and proximate result of Experimac and UFG providing Jeff
and Gina with inaccurate and misleading financial information concerning
the Experimac store in West Palm Beach, Florida, in reliance on this
misinformation, Jeff and Gina were induced to pay a $49,500.00 franchise
establishment fee to Experimac, enter into the SBA Loan, enter into the
Agreement, and incurred other expenses associated with the startup of their
Orahard Darl Dunariman Gara and annardinaly 1a damaged
UrcuiaiG 1 ain Lxperimac Sire, aia acCoraingiy, weie Gamagea.See Third-Party Complaint at J 61.
c. As a direct and proximate result of Experimac and UFG providing Jeff
and Gina with inaccurate and misleading financial information concerning
the alleged “greater purchasing power” associated with Experimac’s ability
to quickly, easily, and cheaply supply inventory to its franchisees, Jeff and
Gina were induced to enter into the Agreement, pay a $49,500.00 franchise
establishment fee to Experimac, enter into the SBA Loan, and incurred other
expenses associated with the startup of their Orchard Park Experimac Store,
and accordingly, were damaged.
See Third-Party Complaint at 80.
d. As a direct and proximate result of Experimac and UFG providing Jeff
and Gina with inaccurate and misleading financial information concerning
financial projections of their forthcoming Orchard Park Experimac Store,
Jeff and Gina were induced to pay a $49,500.00 franchise establishment fee
to Experimac, and incurred other expenses associated with the startup of
their Orchard Park Experimac Store, and accordingly, were damaged.
See Third-Party Complaint at § 104.
41. These allegations fail to plead fraudulent inducement with the particularity required
for fraud claims under Florida law since Experimac and UFG Group are conflated. UFG Group is
unable to decipher which alleged fraudulent actions were performed by Experimac or by UFG
Group.
42. Therefore, the fraudulent inducement claims against UFG Group should be
dismissed or in the alternative, required to be sufficiently replead with the requisite particularity.
Cc. There was No Violation of FDUTPA Committed by UFG Group.
a Te ee IM A tat a ta ee Mn NY 2 Att we
4). 1U SSlAULISH a PUUIPA CAI, WIG pledUilg Must allege. (1) a USCEpuUVe acl UL
unfair practice; (2) causation; and (3) actual damages.” Stewart Agency, Inc. v. Arrigo Enters.,
Inc., 266 So. 3d 207, 212 (Fla. 4th DCA 2019).44. A deceptive act is defined as a “representation, omission, or practice that is likely
to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment.”
PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003).
45. Aspreviously stated in Section A of this Motion, Franchisees legally could not have
relied upon and therefore UFG Group cannot be held liable for any common law form of fraud
that would be deemed a deceptive or unfair practice in the course of trade or commerce.
46. In the absence of a common law fraud tort, such as in this case where UFG Group
did not act fraudulently, FDUPTA violation may be based upon any of the following:
(a) Any rules promulgated pursuant to the Federal Trade Commission Act, 15
U.S.C. ss. 41 et seq.;
(b) The standards of unfairness and deception set forth and interpreted by the
Federal Trade Commission or the federal courts; or
(c) Any law, statute, rule, regulation, or ordinance which proscribes unfair
methods of competition, or unfair, deceptive, or unconscionable acts or
practices.
Fla. Stat. § 501.203(3) (2020).
47. Nowhere in the Third-Party Complaint do Franchisees provide a specific FDUPTA,
Federal Trade Commission, or federal court regulations, acts, or standards that provide the basis
for a vioiation by UFG Group.
48. Instead, Franchisees simply make blanket statements that UFG Group’s actions
were immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers and
thus violated FDUTPA.
49. This is insufficient to sustain an action for FDUTPA violation and survive a motion
to dismiss.
50. Furthermore, a FDUTPA claim cannot be stated based upon oral representations
wehinh ava in anntradiatinn afurrittan tarme afa annteant hanenes ralianaa an enah ranracantatinns
Wilcn aie in COmuauicu0n Or Written tris O1 a Contact, UCCaUSe TUlalce On Suc TepresemlaloLls,
10is unreasonable as a matter of law. Dorestin v. Hollywood Imps., Inc., 45 So. 3d 819, 825 (Fla. 4th
DCA 2010).
51. Therefore, since no specific statute, act, or regulation that UFG Group allegedly
violated was provided in the Third-Party Complaint, Count IV should be dismissed with prejudice
against UFG Group for failure to state a claim.
D. The FDUTPA Claims Against UFG Group Occurring Prior to June 25, 2017 are
barred by the Statute of Limitations Because they Alleged Violations Occurred More
than 4 Years Prior to Filing of the Third-Party Complaint.
52. The statute of limitations for a FDUTPA claim is 4 years after the alleged violation.
See § 95.11(3)(f), Fla. Stat; see also Yusuf Mohamad Excavation v. Ringhaver Equip. Co., 793 So.
2d 1127, 1128 (Fla. 5th DCA 2001).
53. According to Franchisees, UFG Group made false and misleading representations
and material omissions in 2016 to Franchisees to induce Franchisees to enter into the Franchise
Agreement.
54. These alleged representations and omissions form the basis of Franchisees claim
that UFG Group violated FDUTPA.
55. However, the alieged FDUTPA violations occurred more than 4 years prior to
Franchisees filing the Third-Party Complaint against UFG Group.!
56. Therefore, any and all claims alleging that UFG Group violated FDUTPA prior to
June 25, 2017 should be dismissed with prejudice due to the passing of the statute of limitations.
' The Third-Party Complaint was filed on June 25, 2021.
11E. The Claim for Declaratory Judgment of a Violation of FDUTPA Should be Dismissed
Because Franchisees Failed to properly plead a FDUTPA Violation by UFG Group.
57. Franchisees’ separate count for declaratory judgment that UFG Group committed
a FDUTPA violation is inconsistent
58. Section 501.211(1), Florida Statutes, provides: Without regard to any other remedy
or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an
action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a
person who has violated, is violating, or is otherwise likely to violate this part.
59. To state a claim for equitable relief, an entity must show (1) that it is aggrieved, in
that its rights have been, are being, or will be adversely affected, by (2) a violation of FDUTPA,
meaning an unfair or deceptive practice which is injurious to consumers. Stewart Ag., Inc. v. Arrigo
Enters., 266 So. 3d 207, 214 (Fla. 4th DCA 2019).
60. Since the Third-Party Complaint fails to properly plead a violation of FDUTPA by
UFG Group, a declaratory judgment would be improper in this case.
61. Therefore, the claim for declaratory relief count should be dismissed.
F. Negligent Misrepresentation
62. In order to be actionable, a suit for negligent misrepresentation must contain the
following elements: (1) misrepresentation of a material fact; (2) the representor must either know
of the misrepresentation, must make the representation without knowledge as to its truth or falsity,
Of MUS MAKE the representation Wider CircuMstaicEs i Which he ought tO have Kiowa OF its
falsity; (3) the representor must intend that the representation induce another to act on it; (4) injury
must result to the party acting in justifiable reliance on the misrepresentation. Wallerstein v. Hosp.
Corp. of Am., 573 So. 249, 10 (Fla. 4th DCA 1990).
1263. Asprevious stated in Section A of this Motion, Franchisees attested in the Franchise
Agreement that they never relied on any statement by UFG Group in order to sign the Franchise
Agreement. See Third-Party Complaint at Ex. A.
64. | Consequently, Franchisees did not justifiably rely on any alleged misrepresentation
by UFG Group.
65. Therefore, the negligent misrepresentation claim against UFG Group should be
dismissed.
G. The Third-Party Complaint Fails to Properly Plead a Civil Conspiracy by UFG
Group
66. The elements of a civil conspiracy claim are: “(1) an agreement between two or
more parties, (2) to do an unlawful act or to do a lawful act by unlawful means, (3) the doing of
some overt act in pursuance of the conspiracy, and (4) damage to plaintiff as a result of the acts
done under the conspiracy.” Russo v. Fink, 87 So. 3d 815, 819 (Fla. 4th DCA 2012) quoting Raimi
v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997) (affirming dismissal of complaint that
failed to allege sufficient facts with respect to a civil conspiracy count).
67. “General allegations of conspiracy are inadequate,” and “[a] complaint must set
forth clear, positive, and specific allegations of civil conspiracy.” Eagletech Communs., Inc., 79
So. 3d at 863 quoting World Class Yachts, Inc. v. Murphy, 731 So. 2d 798, 799 (Fla. 4th DCA
1999).
£0 Ned ee ee ee ed ee Ma, a Ne et
00. KAUICL Wan Clea, POSIUVE, aNd SPeCIIC aegauions ule 1uitd-rafly Comipiaine
states:
Experimac/Experimax, UFG, and Health Club had an agreement between each
other whereby they would defraud Counter/Third-Party Plaintiffs into believing the
false representations, statements, and/or omissions of fact alleged herein about the
natininatad narfarmanna af: (a\ Dvnariman and Uvnarimay under tha Anraamant:
anuciparca perormance Or: (ay OxXperimad aiG GxpenimMax wader wie Agreemenc,
and, (b) the profits and revenues of the Orchard Park Experimac Store.
13See Third-Party Complaint { 203.
69. Franchisees have failed to specifically identify any agreement that including the
when, where, or how or the alleged unlawful acts or fraud allegedly committed by UFG Group.
70. Therefore, the civil conspiracy allegations are conclusory, vague, and indefinite
ambiguous and the Count IX should be dismissed, with prejudice, against UFG Group.
CONCLUSION
71. If some part of the Complaint should not be dismissed, then Franchisees should be
required to file an Amended Complaint that appropriately sets forth its claims in a more definite
manner, providing sufficient factual allegations so that Defendants can respond through
straightforward affirmations or denials. See Fla R. Civ. P. 1.140(e).
72. Franchisees acknowledged prior to signing the Franchise Agreement that they did
not rely on any representations made by UFG Group. Additionally, Franchisees have repeatedly
failed to plead the minimum standards required under Florida law to state claims against UFG
Group. Due to the Third-Party Complaint’s failure to identify the specific fraudulent statements
provided, negligent misrepresentation stated, breaches of the contract made, or conspiracy entered
into with respect to Experimac, the claims fail as a matter of law.
Wherefore, Third-Party Defendant, UFG Group hereby respectfully requests that the Court
dismiss all of the Counts against UFG Group with prejudice and/or in the alternative requiring
Third-Party Piaiititis 1 provide a MOTE definite statement Setting Torin the facts, dates ana times
that support each claim being asserted by each separate Third-Party Plaintiff against UFG Group,
an award of reasonable attorneys’ fees and costs pursuant to Fla. Stat. §§ 57.105 and 501.2105,
together with such and other further relief the Court deems just and proper.
14Dated: August 12, 2021
By:
Respectfully submitted,
4/ Christian Dorismond
Mark D. Nichols, Esq.
Florida Bar No.: 056580
mnichols@ufgcorp.com
Christian Dorismond, Esq.
Florida Bar No.: 10125387
cdorismond@ufgcorp.com
UFG Group, INC.
2121 Vista Parkway
West Palm Beach, FL 33411
Tel: (561) 868 -1453
Counsel for UFG Group, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished via the court’s
email service to Justin G. Prociv, Esq., LAPIN & LEICHTLING, LLP, Counsel for Defendants, 255
Alhambra Circle, Suite 600, Coral Gables, Florida 33134 at JProciv@LL-lawfirm.com and Joel
Kenwood, Esq., SACHS SAX CAPLAN, 6111 Broken Sound Parkway NW, Suite 200, Boca Raton,
Florida 33487 at jkenwood@ssclawfirm.com; mfayter@ssclawfirm.com on this August 12, 2021.
By:
15
4/ Christian Dorismond
Christian Dorismond. Esq.
Preview
Filing # 132595452 E-Filed 08/12/2021 06:44:58 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA. EXPERIMAX FRANCHISING, LLC, CASE NO: 502021CA001626XXXXMB Plaintiff, DIVISION: AO vs. JEFFERY SIEPIERSKI, GINA FONTANA- SIEPIERSKI, and BLUTUSK TECH, LLC, Defendants. JEFFERY SIEPIERSKI; GINA FONTANA- OIMNMNevT. ..4 DITITTIOY THATT TT OLOPLOENONE, au, DLUULUOK 10UN, LLL, Counter-Plaintiffs/Third-Party Plaintiffs,, vs. EXPERIMAX FRANCHISING, LLC; EXPERTMAC FRANCHISING, LLC: UFG GROUP, INC. d/b/a UNITED FRANCHISE GROUP; and, HEALTH CLUB EXPERTS.COM, LLC d/b/a BUSINESS FINANCE DEPOT, Counter-Defendant and Third-Party Defendants. / THIRD-PARTY DEFENDANT, UFG GROUP, INC.’S MOTION TO DISMISS THIRD- PARTY PLAINTIFFS’ COMPLAINT AGAINST UFG GROUP, INC. AND/OR MOTION FOR MORE DEFINITE STATEMENT UFG GROUP, INC. (“UFG Group”), by and through the undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.140 moves to dismiss Third-Party Plaintiffs’ Third- Party Complaint against UFG Group or in the alternative for a provide a more definite statement, and in support thereof, states as follows: CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN FLED NaMginnns neAs-FQ DN Hn. PAL DLA VUUINE TT, FL, VUOL I mDnUueey, ULLIAN, Yor i2i2ue) vu. gu itINTRODUCTION 1. Third-Party Plaintiffs JEFFERY SIEPIERSKI; GINA FONTANA-SIEPIERSKI; and, BLUTUSK TECH, LLC (collectively, “Franchisees”) were sued by EXPERIMAX FRANCHISING, LLC (“Experimax”) for breaching the franchise agreement by failing to pay the required royalty and marketing payments and operating a competitive business. 2. Franchisees have now added a third-party complaint against UFG Group for fraudulent inducement, violation of the Florida Fraudulent and Deceptive Trade Practices Act (“FDUTPA”), negligent misrepresentation, and civil conspiracy (the “Third-Party Complaint”). 3. The causes of action alleged by Franchisees against Experimac suffer from multiple pleading deficiencies, including the pleading of certain causes of action which must legally fail due to representations made by Franchisees (contained in the exhibit to their third-party complaint) which they cannot avoid. 4. Alternatively, the Third-Party Complaint should be amended because it is not clear from the pleading which acts were committed by UFG Group, Experimax, or EXPERIMAC FRANCHISING, LLC (“Experimac”) because each of the parties and their actions are conflated together. 5. Franchisees alleged insufficient facts that UFG Group should be a party to the instant lawsuit by relying solely on the facts that UFG Group, Experimax, and Experimac share the same office address, registered agent, and some UFG Group officer and directors are also officers and directors for Experimax and Experimac. 6. In analyzing Franchisees’ pleading a pattern emerges wherein, that despite Franchisees noting that the third-party defendants and counter-defendant are separate parties,Experimac, UFG Group, and Experimax are continually conflated as the same party for purposes of ascribing the actions of one as also performed by each of the others. 7. Therefore, all Counts against UFG Group should be dismissed or in the alternative, Franchisees should be required to amend the pleading to allow Experimac to properly respond to the allegations against it and not related to other parties. STATEMENT OF FACTS 8. On May 11, 2016, Experimac entering into a franchise agreement with Jeffrey Siepierski and Gina Fontana-Siepierski. See Third-Party Complaint at { 1. 9. The parties executed an addendum to the Franchise Agreement on October 27, 2016, adding BluTusk Tech, LLC as a co-franchisee. See Third-Party Complaint Ex. 1, Addendum to Franchise Agreement, generally. 10. Pursuant to the Franchise Agreement, Franchisees attested that they did not rely upon any statements by Experimac prior to entering into the Franchise Agreement. See Third-Party Complaint at Ex. 1. 11. Experimac subsequently assigned the Franchise Agreement to Experimax. See Third-Party Compiaint at 7 3. 12. Experimax filed suit against Franchisees alleging breach of franchise agreement due to Franchisees’ failure to pay the contractual royalty and marketing fees and Franchisees’ operation of a competing business. See Third-Party Complaint at 13. 13. Franchisees have now filed a Third-Party Complaint against UFG Group among other parties alleging that Experimac fraudulently induced Franchisees into signing the Franchise Agreement, violated FDUTPA, committed negligent misrepresentation, and was part of a civil annanivant againet Dranshicaas Cae Third Dart: Camnlaint sanarallyr COlspiacy against rrancniseys. vee iitusr airy UVOnpiain, Bunerany.MOTION TO DISMISS STANDARD 14. | When deciding on a motion to dismiss, a Florida trial court is confined to the four comers of the complaint. Peterson v. Pollack, 290 So. 3d 102, 105 (Fla. 4th DCA 2020). 15. The test for whether a plaintiff has stated a cause of action is whether the pleader could prove any set of facts that would support his or her claims. Ingalsbe v. Stewart Ag., Inc., 869 So. 2d 30, 35 (Fla. 4th DCA 2004). 16. The facts alleged in a pleading must be accepted as true, and all reasonable inferences must be drawn in favor of the pleader. Wallisville Corp. v. McGuinness, 154 So. 3d 501, 503 (Fla. 4th DCA 2015). However, “conclusory allegations are insufficient.” Stein v. BBX Cap. Corp., 241 So. 3d 874, 876 (Fla. 4th DCA 2018). 17. Thus, a pleading must contain the ultimate facts supporting each element of each cause of action alleged. Goldberg v. Merrill Lynch Credit Corp., 35 So. 3d 905, 907 (Fla. 2010). 18. Additionally, exhibits to a complaint can serve as a basis for dismissing a complaint for failure to state a cause of action if the exhibits actually negate the cause of action. Fladell v. Palm Beach Cty. Canvassing Bd., 2000 Fla. LEXIS 2590, at *4 (Dec. 1, 2000). ARGUMENT A. Pursuant to the Terms of the Franchise Agreement, Third-Party Plaintiffs did not Rely on any Representations by UFG Group. 19. Franchisees third-party complaint alleges in multiple places that UFG Group made ” Tepreseniauions tat maucea Prancnisees to “Enler into tTansaclions, mcludimg ine Agreement... See Third-Party Complaint at §f 137-142 (Count for Fraudulent Misrepresentation); fJ 180-181, 183, 185 (Count for Negligent Misrepresentation); 188 (Count of Breach of Contract); § 202, 204 and 205 (Civil Conspiracy).20. ‘Further, Franchisees seek relief under FDUTPA for acts arising out of the “negotiation of, or entry into” the Franchise Agreement. See Third-Party Complaint at { 164; see also Third-Party Complaint at Count V generally (Declaratory Judgment for Violation of FDUTPA). 21. The terms in the Franchise Agreement that do not correspond with the facts alleged in the Third-Party Complaint should be considered true and control over the Third-Party Complaint’s allegations. 22. Under Florida law, where the language of an exhibit to a pleading is inconsistent with the pleading, the language of the exhibit controls. Haslett v. Broward Health Imperial Point Med. Ctr., 197 So. 3d 124, 127 (Fla. 4th DCA 2016). 23. Moreover, it is established that “[a] party cannot recover in fraud for alleged oral misrepresentations that are adequately covered or expressly contradicted in a later written contract.” Mac-Gray Servs. v. DeGeorge, 913 So. 2d 630, 634 (Fla. 4th DCA 2005). 24. The Third-Party Complaint attached the Franchise Agreement as Exhibit “A” to the pleading. 25. Throughout the Third-Party Compiaint, Franchisees make allegations that are in opposite to the Franchise Agreement. 26. Franchisees repeatedly claim that they were provided false and misleading that the West Palm Beach store was a “typical store.” See Third-Party Complaint at 7 53. 27. Yet the franchise agreement, signed by all parties, clearly provides that: YOU SPECIFICALLY ACKNOWLEDGE THAT THERE IS NO EXPERIMAC STORE THAT MAY BE CONSIDERED TO BE A “TYPICAL” OR “AVERAGE” CENTER. Cae Third Dart Camnlaint By 1 Deanshica Aaraamant atnn 2497 ce 1itosr arly WOnipiallie OA, 1, rrancnise mE eum, at pp. 20-27.28. Franchisees also make claims that they were provided with false and misleading representations to induce Franchisees to sign the Franchise Agreement. 29. In contravention of said claim, the Franchise Agreement states: EXM MAKES NO REPRESENTATIONS OR GUARANTEES AS TO NET/GROSS SALES, PROFITS, COSTS OR EARNINGS YOU CAN EXPECT. YOU ARE NOT ENTITLED TO ANY COMPENSATION OR REIMBURSEMENT FOR LOSS OF PROSPECTIVE PROFITS, ANTICIPATED SALES, OR OTHER LOSSES OCCASIONED BY CANCELLATION OR TERMINATION. See Third-Party Complaint Ex. 1, Franchise Agreement, at p. 27. 30. Franchisees further claim that they relied upon statements by Experimax and the third-party defendants to their detriment in signing the Franchise Agreement. 31. However, the Franchise Agreement states: NO PERSON IS AUTHORIZED TO GIVE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED N THIS FRANCHISE AGREEMENT, AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION SHOULD NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED. See Third-Party Complaint Ex. 1, Franchise Agreement, at p. 27. 32. Additionally, with respect to the allegations regarding that Experimax defrauded Franchisees and Franchisees relied on statements outside of the Franchise Disclosure Document that are asserted in the Third-Party Complaint, Franchise acknowledged in Section Eighteen of the Franchise Agreement that Franchisees relied on no pre-contractual statements: ..tiat You fave been told that if there are any pre-Contiactual statements which You consider have been made to You which have induced You to enter into this Agreement, You are obliged to submit the particulars thereof to EXM so that any misconceptions or misunderstandings can be resolved. In such case, an agreed form of pre-contractual statements upon which You relied on may be annexed to and made part of this Agreement;ii. You have been given the opportunity to provide EXM particulars of any precontractual statements which You consider have been made to You which have induced You to enter into this Agreement; and iii. this Agreement therefore contains the entire agreement between the parties and accordingly no pre-contractual statements shall add to or vary this Agreement or be of any force or effect unless such pre-contractual statements are either contained in this Agreement or in an annex to it, and You waive any right You may have to sue for damages and/or rescind this Agreement for any pre-contractual statements not contained in this Agreement or an annex to it. Nothing in this Agreement or in any related agreement, however, is intended to disclaim the representations made in the Disclosure Document that EXM furnished to You. Nothing within this Agreement shall be considered a waiver of reliance by You of the representations made in the Disclosure Document or its exhibits or amendments.” See Third-Party Complaint Ex. 1, Franchise Agreement, at p. 24. 33. The terms of the Franchise Agreement should be interpreted as true over any contradictory statements in the Third-Party Complaint and said contradictory statements should be stricken which would remove the factual allegations required for the fraudulent inducement, negligent misrepresentation, and breach claims against Experimax made prior to signing the Franchise Agreement. 34. Since Franchisees did not rely on UFG Group’s alleged representations, Franchisees cannot maintain their fraud and breach claims based on misrepresentations. 35. Therefore, Counts I, IV, V, VI, VII, and IX should be dismissed. B. Third-Party Plaintiffs Fail to Plead Fraudulent Inducement with the Particularity Required Under Florida Law. 36. A fraudulent inducement claim requires: “(1) a false statement of material fact; (2) the maker of the false statement knew or should have known of the falsity of the statement; (3) the maker intended that the false statement induce another's reliance; and (4) the other party justifiablyrelied on the false statement to its detriment.” Prieto v. Smook, Inc., 97 So. 3d 916, 917. (Fla. 4th DCA 2012). 37. As previously stated in Section A of this Motion, Franchisees acknowledged in the Franchise Agreement that they did not rely on any statements by UFG Group. Consequently, Franchisees did not justifiably rely on any alleged false statement by UFG Group to their detriment. 38. Moreover, “[iJn order for a claim of fraud in the inducement to withstand a motion to dismiss, it must allege fraud with the requisite particularity required by Florida Rule of Civil Procedure 1.120(b), including who made the false statement, the substance of the false statement, the time frame in which it was made and the context in which the statement was made.” Eagletech Communs., Inc. v. Bryn Mawr Inv. Grp., Inc., 79 So. 3d 855, 861-62 (Fla. 4th DCA 2012) quoting Bankers Mut. Capital Corp. v. U.S. Fid. & Guar. Co., 784 So. 2d 485, 490 (Fla. 4th DCA 2001). 39. | The Third-Party Complaint never differentiates the actions of Experimac to those of UFG Group. 40. Instead, each is simply considered the same party: a. As a direct and proximate result of Experimac and UFG providing Jeff and Gina with inaccurate and misleading financial information concerning the amount of capttai needed to get an Experimac store up and running in 2016, in reliance on this misinformation, Jeff and Gina were induced to pay a $49,500.00 franchise establishment fee to Experimac, and incurred other expenses associated with the startup of their Orchard Park Experimac Store, and accordingly, were damaged. See Third-Party Complaint at § 45. b. As a direct and proximate result of Experimac and UFG providing Jeff and Gina with inaccurate and misleading financial information concerning the Experimac store in West Palm Beach, Florida, in reliance on this misinformation, Jeff and Gina were induced to pay a $49,500.00 franchise establishment fee to Experimac, enter into the SBA Loan, enter into the Agreement, and incurred other expenses associated with the startup of their Orahard Darl Dunariman Gara and annardinaly 1a damaged UrcuiaiG 1 ain Lxperimac Sire, aia acCoraingiy, weie Gamagea.See Third-Party Complaint at J 61. c. As a direct and proximate result of Experimac and UFG providing Jeff and Gina with inaccurate and misleading financial information concerning the alleged “greater purchasing power” associated with Experimac’s ability to quickly, easily, and cheaply supply inventory to its franchisees, Jeff and Gina were induced to enter into the Agreement, pay a $49,500.00 franchise establishment fee to Experimac, enter into the SBA Loan, and incurred other expenses associated with the startup of their Orchard Park Experimac Store, and accordingly, were damaged. See Third-Party Complaint at 80. d. As a direct and proximate result of Experimac and UFG providing Jeff and Gina with inaccurate and misleading financial information concerning financial projections of their forthcoming Orchard Park Experimac Store, Jeff and Gina were induced to pay a $49,500.00 franchise establishment fee to Experimac, and incurred other expenses associated with the startup of their Orchard Park Experimac Store, and accordingly, were damaged. See Third-Party Complaint at § 104. 41. These allegations fail to plead fraudulent inducement with the particularity required for fraud claims under Florida law since Experimac and UFG Group are conflated. UFG Group is unable to decipher which alleged fraudulent actions were performed by Experimac or by UFG Group. 42. Therefore, the fraudulent inducement claims against UFG Group should be dismissed or in the alternative, required to be sufficiently replead with the requisite particularity. Cc. There was No Violation of FDUTPA Committed by UFG Group. a Te ee IM A tat a ta ee Mn NY 2 Att we 4). 1U SSlAULISH a PUUIPA CAI, WIG pledUilg Must allege. (1) a USCEpuUVe acl UL unfair practice; (2) causation; and (3) actual damages.” Stewart Agency, Inc. v. Arrigo Enters., Inc., 266 So. 3d 207, 212 (Fla. 4th DCA 2019).44. A deceptive act is defined as a “representation, omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, to the consumer's detriment.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003). 45. Aspreviously stated in Section A of this Motion, Franchisees legally could not have relied upon and therefore UFG Group cannot be held liable for any common law form of fraud that would be deemed a deceptive or unfair practice in the course of trade or commerce. 46. In the absence of a common law fraud tort, such as in this case where UFG Group did not act fraudulently, FDUPTA violation may be based upon any of the following: (a) Any rules promulgated pursuant to the Federal Trade Commission Act, 15 U.S.C. ss. 41 et seq.; (b) The standards of unfairness and deception set forth and interpreted by the Federal Trade Commission or the federal courts; or (c) Any law, statute, rule, regulation, or ordinance which proscribes unfair methods of competition, or unfair, deceptive, or unconscionable acts or practices. Fla. Stat. § 501.203(3) (2020). 47. Nowhere in the Third-Party Complaint do Franchisees provide a specific FDUPTA, Federal Trade Commission, or federal court regulations, acts, or standards that provide the basis for a vioiation by UFG Group. 48. Instead, Franchisees simply make blanket statements that UFG Group’s actions were immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers and thus violated FDUTPA. 49. This is insufficient to sustain an action for FDUTPA violation and survive a motion to dismiss. 50. Furthermore, a FDUTPA claim cannot be stated based upon oral representations wehinh ava in anntradiatinn afurrittan tarme afa annteant hanenes ralianaa an enah ranracantatinns Wilcn aie in COmuauicu0n Or Written tris O1 a Contact, UCCaUSe TUlalce On Suc TepresemlaloLls, 10is unreasonable as a matter of law. Dorestin v. Hollywood Imps., Inc., 45 So. 3d 819, 825 (Fla. 4th DCA 2010). 51. Therefore, since no specific statute, act, or regulation that UFG Group allegedly violated was provided in the Third-Party Complaint, Count IV should be dismissed with prejudice against UFG Group for failure to state a claim. D. The FDUTPA Claims Against UFG Group Occurring Prior to June 25, 2017 are barred by the Statute of Limitations Because they Alleged Violations Occurred More than 4 Years Prior to Filing of the Third-Party Complaint. 52. The statute of limitations for a FDUTPA claim is 4 years after the alleged violation. See § 95.11(3)(f), Fla. Stat; see also Yusuf Mohamad Excavation v. Ringhaver Equip. Co., 793 So. 2d 1127, 1128 (Fla. 5th DCA 2001). 53. According to Franchisees, UFG Group made false and misleading representations and material omissions in 2016 to Franchisees to induce Franchisees to enter into the Franchise Agreement. 54. These alleged representations and omissions form the basis of Franchisees claim that UFG Group violated FDUTPA. 55. However, the alieged FDUTPA violations occurred more than 4 years prior to Franchisees filing the Third-Party Complaint against UFG Group.! 56. Therefore, any and all claims alleging that UFG Group violated FDUTPA prior to June 25, 2017 should be dismissed with prejudice due to the passing of the statute of limitations. ' The Third-Party Complaint was filed on June 25, 2021. 11E. The Claim for Declaratory Judgment of a Violation of FDUTPA Should be Dismissed Because Franchisees Failed to properly plead a FDUTPA Violation by UFG Group. 57. Franchisees’ separate count for declaratory judgment that UFG Group committed a FDUTPA violation is inconsistent 58. Section 501.211(1), Florida Statutes, provides: Without regard to any other remedy or relief to which a person is entitled, anyone aggrieved by a violation of this part may bring an action to obtain a declaratory judgment that an act or practice violates this part and to enjoin a person who has violated, is violating, or is otherwise likely to violate this part. 59. To state a claim for equitable relief, an entity must show (1) that it is aggrieved, in that its rights have been, are being, or will be adversely affected, by (2) a violation of FDUTPA, meaning an unfair or deceptive practice which is injurious to consumers. Stewart Ag., Inc. v. Arrigo Enters., 266 So. 3d 207, 214 (Fla. 4th DCA 2019). 60. Since the Third-Party Complaint fails to properly plead a violation of FDUTPA by UFG Group, a declaratory judgment would be improper in this case. 61. Therefore, the claim for declaratory relief count should be dismissed. F. Negligent Misrepresentation 62. In order to be actionable, a suit for negligent misrepresentation must contain the following elements: (1) misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the representation without knowledge as to its truth or falsity, Of MUS MAKE the representation Wider CircuMstaicEs i Which he ought tO have Kiowa OF its falsity; (3) the representor must intend that the representation induce another to act on it; (4) injury must result to the party acting in justifiable reliance on the misrepresentation. Wallerstein v. Hosp. Corp. of Am., 573 So. 249, 10 (Fla. 4th DCA 1990). 1263. Asprevious stated in Section A of this Motion, Franchisees attested in the Franchise Agreement that they never relied on any statement by UFG Group in order to sign the Franchise Agreement. See Third-Party Complaint at Ex. A. 64. | Consequently, Franchisees did not justifiably rely on any alleged misrepresentation by UFG Group. 65. Therefore, the negligent misrepresentation claim against UFG Group should be dismissed. G. The Third-Party Complaint Fails to Properly Plead a Civil Conspiracy by UFG Group 66. The elements of a civil conspiracy claim are: “(1) an agreement between two or more parties, (2) to do an unlawful act or to do a lawful act by unlawful means, (3) the doing of some overt act in pursuance of the conspiracy, and (4) damage to plaintiff as a result of the acts done under the conspiracy.” Russo v. Fink, 87 So. 3d 815, 819 (Fla. 4th DCA 2012) quoting Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla. 3d DCA 1997) (affirming dismissal of complaint that failed to allege sufficient facts with respect to a civil conspiracy count). 67. “General allegations of conspiracy are inadequate,” and “[a] complaint must set forth clear, positive, and specific allegations of civil conspiracy.” Eagletech Communs., Inc., 79 So. 3d at 863 quoting World Class Yachts, Inc. v. Murphy, 731 So. 2d 798, 799 (Fla. 4th DCA 1999). £0 Ned ee ee ee ed ee Ma, a Ne et 00. KAUICL Wan Clea, POSIUVE, aNd SPeCIIC aegauions ule 1uitd-rafly Comipiaine states: Experimac/Experimax, UFG, and Health Club had an agreement between each other whereby they would defraud Counter/Third-Party Plaintiffs into believing the false representations, statements, and/or omissions of fact alleged herein about the natininatad narfarmanna af: (a\ Dvnariman and Uvnarimay under tha Anraamant: anuciparca perormance Or: (ay OxXperimad aiG GxpenimMax wader wie Agreemenc, and, (b) the profits and revenues of the Orchard Park Experimac Store. 13See Third-Party Complaint { 203. 69. Franchisees have failed to specifically identify any agreement that including the when, where, or how or the alleged unlawful acts or fraud allegedly committed by UFG Group. 70. Therefore, the civil conspiracy allegations are conclusory, vague, and indefinite ambiguous and the Count IX should be dismissed, with prejudice, against UFG Group. CONCLUSION 71. If some part of the Complaint should not be dismissed, then Franchisees should be required to file an Amended Complaint that appropriately sets forth its claims in a more definite manner, providing sufficient factual allegations so that Defendants can respond through straightforward affirmations or denials. See Fla R. Civ. P. 1.140(e). 72. Franchisees acknowledged prior to signing the Franchise Agreement that they did not rely on any representations made by UFG Group. Additionally, Franchisees have repeatedly failed to plead the minimum standards required under Florida law to state claims against UFG Group. Due to the Third-Party Complaint’s failure to identify the specific fraudulent statements provided, negligent misrepresentation stated, breaches of the contract made, or conspiracy entered into with respect to Experimac, the claims fail as a matter of law. Wherefore, Third-Party Defendant, UFG Group hereby respectfully requests that the Court dismiss all of the Counts against UFG Group with prejudice and/or in the alternative requiring Third-Party Piaiititis 1 provide a MOTE definite statement Setting Torin the facts, dates ana times that support each claim being asserted by each separate Third-Party Plaintiff against UFG Group, an award of reasonable attorneys’ fees and costs pursuant to Fla. Stat. §§ 57.105 and 501.2105, together with such and other further relief the Court deems just and proper. 14Dated: August 12, 2021 By: Respectfully submitted, 4/ Christian Dorismond Mark D. Nichols, Esq. Florida Bar No.: 056580 mnichols@ufgcorp.com Christian Dorismond, Esq. Florida Bar No.: 10125387 cdorismond@ufgcorp.com UFG Group, INC. 2121 Vista Parkway West Palm Beach, FL 33411 Tel: (561) 868 -1453 Counsel for UFG Group, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished via the court’s email service to Justin G. Prociv, Esq., LAPIN & LEICHTLING, LLP, Counsel for Defendants, 255 Alhambra Circle, Suite 600, Coral Gables, Florida 33134 at JProciv@LL-lawfirm.com and Joel Kenwood, Esq., SACHS SAX CAPLAN, 6111 Broken Sound Parkway NW, Suite 200, Boca Raton, Florida 33487 at jkenwood@ssclawfirm.com; mfayter@ssclawfirm.com on this August 12, 2021. By: 15 4/ Christian Dorismond Christian Dorismond. Esq.