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Filing # 120612054 E-Filed 02/01/2021 04:40:33 PM
TN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT
IN AND FOR ALACHUA COUNTY, FLORIDA
RAD WEAR, INC., CASE NUMBER: 01-2020-CA-003 132
a Florida corporation, and
Circuit Civil Division: K
Plaintiff,
vs.
BAPTIST HEALTH SYSTEM, INC. a
Florida not for profit corporation,
Defendant.
SECOND AMENDED COMP. iT AND DEMAND FOR JURY TRIAL
COMES NOW, Plaintiff, Rad Wear, Inc. (“Rad Wear”), a Florida corporation, and for its
Second Amended Complaint and Demand for Jury Trial against Defendant, Baptist Health System,
Inc. (“Baptist Health”), a Florida not for profit corporation, states as follows:
JURISDICTION AND IDENTIFICATION OF PARTIES
1. This is an action for damages in excess of $15,000.00.
2. Plaintiff Rad Wear is a Florida corporation which, at all times material hereto, keeps
and maintains an office for transaction of its customary business in Alachua County, Florida.
3. Defendant Baptist Health is a not for profit corporation which transacts its
customary business in the state of Florida.
4. As more fully set forth below, one or more causes of action herein accrued in
Alachua County, Florida, because, among other things, payments to Plaintiff Rad Wear as alleged
herein, were and are, at all relevant times hereto, due in Alachua County.
"2020 CA 003132" 120612054 Filed at Alachua County Clerk 02/01/2021 04:40:39 PM ESTRad Wear, Inc. v. Baptist Health System, Inc.
Alachua County
Second Amended Complaint and Demand for Jury Trial
f
5. This Court has jurisdiction over Defendant Baptist Health, and venue is proper in
Alachua County, Florida, pursuant to section 47.051, Florida Statutes.
6, On or about March 31, 2020, Bonnie L. Jewett, on behalf of Defendant Baptist
Health, contacted Plaintiff Rad Wear and requested a quote for 300,000 disposable face masks (an
individual mask is referred to as “Mask” and multiple masks are referred to as “Masks”).
7. Plaintiff Rad Wear emailed Ms. Jewett multiple quotes that same day, all
referencing 500,000 Masks.
8. Rad Wear also informed Defendant Baptist Health, at the time it provided the initial
quotes, that full payment in advance would be required because Rad Wear’s supplier,
Clothpromotions Plus, Inc. (“Clothpromotions”), in turn required payment in order to source the
order from Clothpromotions’ manufacturer in China.
9. A series of negotiations, both oral and in writing, ensued between Rad Wear and
Baptist Health to address pricing issues, the manufacturing process, and timing and volume of
deliveries to the United States and specifically to Baptist Health.
10. During the course of these negotiations, Ms. Jewett, on behalf of Defendant Baptist
Health, repeatedly and on numerous occasions represented to Plaintiff Rad Wear that Defendant
Baptist Health needed 500,000 Masks from Plaintiff Rad Wear.
11. During the course of the negotiations, Defendant Baptist Health was informed
repeatedly that the Masks would be manufactured all at once in order for Defendant Baptist Health
to benefit from lower pricing, i.e., $.64 per Mask, which Ms. Jewett requested and accepted, further
implying from her conduct that Plaintiff Rad Wear should proceed with arranging for the delivery
of the 500,000 Masks to Defendant Baptist Health.Rad Wear, Inc. v. Baptist Health System, inc,
Alachua County
Second Amended Complaint and Demand for Jury Trial
12. During the course of the negotiations, Defendant Baptist Health was informed
repeatedly that the Masks would be shipped from China approximately 100,000 Masks at a time
because it would otherwise take much longer to ship all 500,000 at once, due in part, to
uncertainties during the COVID-19 pandemic. Ms. Jewett requested and accepted these shipment
arrangements, further implying from her conduct that Plaintiff Rad Wear should proceed with
arranging for the delivery of the 500,000 Masks to Defendant Baptist Health.
13. At all relevant times hereto, Ms. Jewett, on behalf of Defendant Baptist Health,
knew or had reason to know that there was no guarantee as to the dates of delivery of any of the
500,000 Masks and represented that Defendant Baptist Health would be flexible in light of the
uncertain times due to the COVID-19 pandemic.
14. At all relevant times hereto, Ms. Jewett, on behalf of Defendant Baptist Health,
represented to Plaintiff Rad Wear that Defendant Baptist Health was willing to accept deliveries
of approximately 100,000 Masks or even less at a time.
15. Plaintiff Rad Wear relied on the foregoing representations and related conduct of
Ms. Jewett, which induced Plaintiff Rad Wear to deposit $50,000 with Clothpromotions and
commit to total payment to Clothpromotions of a far greater amount in order to secure the delivery
of the 500,000 Masks to Defendant Baptist Health.
16. On April 10, 2020, Ms. Jewett, on behalf of Defendant Baptist Health, entered in
to a contract with Plaintiff Rad Wear, whereby Baptist Health reaffirmed its commitment to “a
TOTAL order of 500k pieces” from Rad Wear, to be delivered approximately 100,000 at a time.
Although the signature line is dated April 20, 2020, attached hereto and incorporated herein as
Exhibit 1 is a true copy of the agreement which Ms. Jewett signed on April 10, 2020
(“Agreement”).Rad Wear, Inc. v. Baptist Health System, Inc,
Alachua County
Second Amended Complaint and Demand for Jury Trial
17. All 500,000 Masks were produced within a week, of which Ms. Jewett was aware
at the time, and never did she request to cancel any portion of the 500,000 order.
18. During the course of the parties’ dealings, Ms. Jewett represented to Plaintiff Rad
Wear that, although Defendant Baptist Health ordered and agreed to purchase 500,000 Masks at
$.64 per Mask, solely to ensure Defendant Baptist Health’s installment payment upon each
delivery, she needed Plaintiff Rad Wear to provide an “estimate” of 100,000 Masks per delivery.
Ms. Jewett further represented that such estimate internally allows the hospital to generate an
internal purchase order authorizing the installment payments to Plaintiff Rad Wear. Plaintiff Rad
Wear would then invoice upon a delivery in which case Defendant Baptist Health would wire an
installment payment to Plaintiff Rad Wear.
19, In reliance on Ms. Jewett’s representations, Plaintiff Rad Wear included in multiple
estimates and in the Agreement the statement “100k at a time...” in addition to the language “a
TOTAL order of 500k pieces”. See, e.g., Exhibit 1.
20. At all relevant times hereto, Defendant Baptist Health never objected to the
language “a TOTAL order of 500k pieces” in any estimate or on the Agreement.
21. The first shipment included 25,000 Masks and was delivered on or about May 8,
2020 to Defendant Baptist Health.
22. Plaintiff Rad Wear invoiced for these 25,000 Masks on or about May 8, 2020,
which reflected a balance of 475,000 Masks to which Defendant Baptist Health did not object. A
true and complete copy of the invoice is attached hereto as Exhibit 2.
23. A second shipment of 100,000 Masks was already in transport from the
manufacturer of which Ms. Jewett was aware at the time, on or around May 8, 2020, and delivered
to Defendant Baptist Health shortly thereafter.Rad Wear, Inc. v. Baptist Health System, Inc,
Alachua County
Second Amended Complaint and Demand for Jury Trial
24, Plaintiff Rad Wear invoiced for these 100,000 Masks on or about May 8, 2020,
which reflected a balance of 375,000 Masks to which Defendant Baptist Health did not object. A
true and complete copy of the invoice is attached hereto as Exhibit 3.
25. On or about May 7, 2020, Plaintiff Rad Wear was contacted via email by Ms.
Gretchen Miller, on behalf of Defendant Baptist Health, inquiring whether the remaining Masks
could be cancelled.
26. Baptist Health has only accepted delivery of and paid for the above 125,000 Masks
and has failed and refused to accept delivery of and pay for the balance of the order, which consists
of 375,000 Masks.
27. On or about July 15, 2020, Ms. Miller also admitted to Plaintiff Rad Wear that Ms.
Jewett had mishandled the Mask order and had Ms. Miller been involved, Defendant Baptist
Health would not be in breach.
28. Via voicemail dated May 12, 2020, Defendant Baptist Health also admitted to the
purchase of hundreds of thousands of Masks, far more than 125,000.
29. The undelivered 375,000 Masks, at all relevant times hereto, are in the possession
of Clothpromotions although such Masks may be delivered to Plaintiff Rad Wear in Alachua
County at a later time.
30, Plaintiff Rad Wear has performed all of its obligations under the Agreement and all
other conditions precedent have occurred.
COUNTI
Violation of Florida’s Unfair and Deceptive Trade Practices Act
31. Plaintiff realleges the allegations set forth in Paragraphs 1-29 above as if set forth
herein in full.Rad Wear, Inc. v, Baptist Health Systent, Ine.
Alachua County
Second Amended Complaint and Demand for Jury Trial
32. Pursuant to Section 501,202(2), Section 501.203(6), Section 501.203(7) and
Section 501.211, Florida Statutes, Plaintiff is a “legitimate business enterprise”, “interested party
or person”, “consumer” and/or aggrieved person for purposes of the Florida Deceptive and Unfair
Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 ef seq.
33. Pursuant to Section 501.203(8) and 501.203(9) of the FDUPTA, Defendant Baptist
Health is engaged in a “trade or business”, which includes without limitation, offering money as
a “thing of value” to legitimate business enterprises, interested parties or persons, consumers
and/or aggrieved persons such as Plaintiff in exchange for masks similar to those at issue in this
case, and Defendant Baptist Health was specifically engaged in such trade or business, offering
money as a thing of value to Plaintiff in exchange for the Masks.
34. The misrepresentations, conduct, and failure to act of and by Defendant Baptist
Health, as set forth in Paragraphs 6-28, are unfair methods of competition, unconscionable acts or
practices, and/or unfair and deceptive acts or practices in the conduct of a trade or business, which
are therefore unlawful, pursuant to Section 501.204 of the FDUTPA.
35. Asaresult of Defendant Baptist Health’s conduct, Plaintiff Rad Wear has suffered
actual damages and is entitled to statutory damages as set forth in the FDUTPA,
36. Pursuant to Section 501.2105 and Section 511.211 of the FDUTPA, Plaintiff Rad
Wear is entitled to recovery of its reasonable attorney’s fees and costs.
WHEREFORE, Plaintiff Rad Wear respectfully requests compensatory and statutory
damages and reasonable attorney’s fees and costs, to be proven at trial, and such other and further
relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, Inc,
Alachua County
Second Amended Complaint and Demand for Jury Trial
é
COUNT H
Breach of Contract: Uniform Commercial Code Action for Price
37, Plaintiff realleges the allegations set forth in Paragraphs 1-30 above as if set forth
herein in full.
38. Defendant Baptist Health had an obligation, pursuant to the Agreement, to accept
delivery of and pay for the balance of the 500,000 Masks, specifically the 375,000 Masks that
remain in the possession of Clothpromotions and/or Plaintiff Rad Wear. See, Exhibit 1.
39. Defendant Baptist Health, despite multiple demands made by Rad Wear, has failed
and refused to accept delivery of and pay for the 375,000 Masks.
40. Pursuant to the terms of the Agreement, the transaction at issue involves the sale of
goods for more than $500 and thus Plaintiff Rad Wear is availed to the rights and remedies afforded
under Chapter 672, Florida Statutes (the “Uniform Commercial Code”). See, Exhibit 1.
41. As aresult of Defendant Baptist Health's breach, Plaintiff has been damaged and
is entitled to remedies for price due pursuant to Section 672.703(5) and Section 672.709, Florida
Statutes.
42, Plaintiff has made reasonable effort to resell the 375,000 Masks at a reasonable
price or the circumstances reasonably indicate that such effort, at all relevant times hereto, has
been and/or will be unavailing.
43. The price for the 375,000 Masks and due and owing from Defendant Baptist Health
is $240,000.00.
WHEREFORE, Plaintiff Rad Wear respectfully requests damages in the amount of
$240,000.00 and such other and further relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, inc.
Alachua County
Second Amended Complaint and Demand for Jury Triat
Count 11
Breach of Contract: Uniform Commercial Code Action for
Contract Price Less Market Price
44. In the alternative to Count {I, Plaintiff realleges the allegations set forth in
Paragraphs 1-30 above as if set forth herein in full.
45, Defendant Baptist Health had an obligation, pursuant to the Agreement, to accept
delivery of and pay for the balance of the 500,000 Masks, specifically the 375,000 Masks that
remain in the possession of Clothpromotions and/or Plaintiff Rad Wear. See, Exhibit 1.
46. Defendant Baptist Health, despite multiple demands made by Rad Wear, has failed
and refused to accept delivery of and pay for the 375,000 Masks.
47. Pursuant to the terms of the Agreement, the transaction at issue involves the sale of
goods for more than $500 and thus Plaintiff Rad Wear is availed to the rights and remedies afforded
under Chapter 672, Florida Statutes (the “Uniform Commercial Code”). See, Exhibit 1.
48. Asa result of Defendant Baptist Health’s breach, Plaintiff has been damaged and
is entitled to remedies for contract price less market price pursuant to Section 672.703(5) and
Section 672.708, Florida Statutes.
49. The price for the 375,000 Masks, pursuant to the Agreement, is $240,000.00.
50. Defendant Baptist Health has admitted that, all relevant times hereto, the market
price for a Mask is $.05, or $18,750.00 for the 375,000 Masks
51. Plaintiff Rad Wear has thus been damaged in the amount of $221,250.00.
WHEREFORE, Plaintiff Rad Wear respectfully requests damages in the amount of
$221,250.00 and such other and further relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, Inc.
Alachua County
Second Amended Complaint and Demand for Jury Trial
gf
Count IV
Negligent Misrepresentation
52. In the alternative to Counts I and Ill, Plaintiff realleges the allegations in
Paragraphs 1-15 and 17-29 set forth above as if set forth herein in full.
53. As set forth in Paragraphs 6, 10-12, and 18, Defendant Baptist Health made
multiple, ongoing, and repeated statements to Plaintiff Rad Wear that Defendant Baptist Health
needed 500,000 Masks from Rad Wear and that Defendant Baptist Health needed Rad Wear to
provide documentation reflecting an “estimate” of 100,000 Masks per delivery only for purposes
of Defendant Baptist Health’s internal purchase order and payment authorization process.
54. The statements concerned material facts that Defendant Baptist Health believed to
be true but which were in fact false.
55. Defendant Baptist Health was negligent in making the statements because
Defendant Baptist Health should have known that its statements and representations were false.
56. | When making the statements, Defendant Baptist Health intended or expected that
Plaintiff Rad Wear would rely on the statements.
57. Plaintiff Rad Wear justifiably relied on the misrepresentations in placing an order
and making a financial commitment to Clothpromotions to purchase 500,000 Masks.
58. Defendant Baptist Health’s failure and refusal to accept the remaining 375,000
Masks, despite its representations, has caused damages to Plaintiff Rad Wear in an amount to be
proven at trial.
WHEREFORE, Plaintiff Rad Wear respectfully requests compensatory and incidental
damages to be proven at trial, and such other and further relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, Inc.
Alachua County
Second Amended Complaint and Demand for Jury Trial
f
Count IV
Promissory Estoppel
59, In the alternative to Counts H, HI and TV, Plaintiff realleges the allegations in
Paragraphs 1-15 and 17-29 set forth above as if set forth herein in full.
60. As set forth in Paragraphs 6, 10-12, and 18, Defendant Baptist Health made
multiple, ongoing, and repeated representations to Plaintiff Rad Wear that Defendant Baptist
Health needed 500,000 Masks from Rad Wear and that Defendant Baptist Health needed Rad Wear
to provide documentation reflecting an “estimate” of 100,000 Masks per delivery only for purposes
of Defendant Baptist Health’s internal purchase order and payment authorization process.
61. ‘The statements concerned material facts that are contrary to Defendant Baptist
Health’s later-asserted position that Defendant Baptist Health is not responsible for and will not
pay for the 375,000 Masks.
62. Plaintiff Rad Wear reasonably relied on the misrepresentations of Defendant
Baptist Health.
63. Plaintiff Rad Wear changed its position to its detriment as a result of Defendant
Baptist Health’s misrepresentations and Plaintiff Rad Wear’s reliance thereon, by placing an order
and making a financial commitment to Clothpromotions to purchase 500,000 Masks.
64. Defendant Baptist Health’s failure and refusal to accept the remaining 375,000
Masks, despite its misrepresentations, has caused damages to Plaintiff Rad Wear in an amount to
be proven at trial.
WHEREFORE, Plaintiff Rad Wear respectfully requests compensatory and incidental
damages to be proven at trial, and such other and further relief as the Court deems just and proper.
10Rad Wear, Inc. v, Baptist Health System, Inc.
Alachua County
Second Amended Complaint and Demand for Jury Trial
Count V
Contract Reformation
65, In the alternative to Counts Il, Hl, 1V, and V, Plaintiff realleges the allegations in
Paragraphs 1-30 set forth above as if set forth herein in full.
66. The reference to “100k pieces at a time...” set forth in the Agreement was the result
of either a mutual mistake of Plaintiff and Defendant or a unilateral mistake by Plaintiff Rad Wear
coupled with inequitable conduct of Defendant Baptist Health through its failure and refusal to
accept and pay for the remaining 375,000 Masks. See, Exhibit 1.
67. The language “100k pieces at a time...” fails to express the agreement of the
Plaintiff and Defendant that Defendant Rad Wear would accept and pay for 500,000 Masks as
otherwise set forth in the Agreement. See, Exhibit 1.
68. Asa result of the mistake as set forth above, whether mutual or unilateral, Plaintiff
Rad Wear has been damaged in an amount to be proven at trial.
WHEREFORE, Plaintiff Rad Wear respectfully requests reformation of the Agreement
to remove reference to “100k pieces at a time...”, compensatory and incidental damages to be
proven at trial, and such other and further relief as the Court deems just and proper.
FOLDS, WALKER & MALTBY, LLC
/s/ Richard B, Maltby
RICHARD B. MALTBY
FBN: 0123602
527 E. University Avenue
Gainesville, FL 32601
rich@fwmlawfirm.com
brianna@fwmlawfirm.com
(352) 372-1282
(352) 375-9960 (facsimile)
Attorney for Plaintiff
11Rad Wear, Inc. v. Baptist Health System, Inc.
Alachua County
Second Amended Complaint and Demand for Jury Trial
/
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed via
Florida Court’s Electronic E-Filing Portal and served via email to Michael T. Fackler, Esq. at
mfackler@milamhoward.com, on this 1st day of February, 2021.
FOLDS, WALKER & MALTBY, LLC
__/s/ Richard B. Maltby
RICHARD B. MALTBY
FBN: 0123602
527 E. University Avenue
Gainesville, FL 32601
rich@fwmlawfirm.com
brianna@fwmlawfirm.com
(352) 372-1282
(352) 375-9960 (facsimile)
Attorney for Plaintiff
12Rad Wear, Inc.
“IN 2135 NW 40th Terrace, Suite A
eA Kk Gainesville, FL. 32605
Office (352) 727-4498
Fax (352) 727-4499
info@radweardasigns.com
Www. fadweardesigns.com
L
Bill To
Ship To.
Baptist Medical Center
PO BOX 45128
Jacksonville, FL 32232
(904) 202-2036
Baptist Medical Center - Warehouse
3563 Philips Hwy, Suite B50!
jacksonville, 207
Atir: Ranale te
P.O. No.
Terme Rep
Project
101035001308
Due on receipt RR-AH
Disposable Face Masks
Description
aly Rate
Amount
Disposable Face Masks - CE NPS020030083
*400K pieces at a time, priced tor 6 TOTAL order of 500K
pieces
Shipping: FedEx Ground, Using Client's Shipper #
Production Time: 10-16 business days
FIRM in-hands date. ASAP
“inventory is subject to change
**Eatimate is valid through 04/10/20
160,000
0.64 84,000.00
9.00 0.00
order completion
**Credit card payments wil} incur « 3% convenience fee
*This is NOT an invoice, please do nol pay off of this estimate, An invoice will bu sont on
Subtotal
$64,000.00
5 Bontisie Ln srzorg029
Sales Tax (0.0%) $0.00
Total
$64,000.00
Pisase sign & remit to above e-mail address or fax number to begin processing
order. Thanks)
EXHIBIT
aRad Wear, Inc. .
fab 2135 NW 40th Terrace, Suite A I nvoice
lA ik Gainesville, FL 32605 ern vi ~
Office (252) 727-4408 Date fovoice #
Fax (352) 727-4499
info@jradweardesigns.com 5/772020 ATSTT
www. radweardesigns.com
Bit To Ship To
Baptist Medical Cenier Baptist Medical Center - Warehnuce
PO BOX 45128 3563 Phibyps wy, Suite F-SOt
Jacksonville, FL 32232 Jacksonville PL 92207
(904) 202-2036 Adin: Boanic Jowntt
[ P.O. No. Terms Rep Project
| 101095001306 Due on teceint RR-AH Disposabie Face Manks |
Description Oty Rate Amaunt
Disposable Face Maska - CE NP&O20030053 26,000 oes 16,000.00
Balance of 475K remaining
Shipping: 8 9.00 0.00
Ovar 150 ibs. Use Optireight, Call 888-457-5851 to arrange
pick up
Under 180 bbs.: Une FedEx Ground, Shipper # 476568749
1BMC
**Credit card paymenix will incur » 3% cunvenionce fee Subtotal $16,000.00
**Paymenta not received within 30 deys are subject to a 1.5% per month luc charge
[FeAny isoucs with the order must be reported within 5 business days of receiving the order Sales Tax (0.0%) $0.00
Total $16,000.00
Payments/Credits $0.00
Thank fe Bien
yank you for your business. Balance Bue $16,000.00
EXHIBITRad Wear, Inc.
bh 2135 NW 40th Terrace, Suite A
Gainesville, FL 32605 °
WEAR fice (350) 727-4498 Date invoice @
Fax (352) 727-4489
info@radweardesigns com $/26/2020 17688
www radweardasigns.com
Ba To Ship To.
Baptist Medical Canter Baptie Medical Cenies « Warchouse
PO BOX 45126 3592 Phibps liwy, Suite L594
Jacksonville, FL 32232 Jacksonvitte, PL 32207
(804) 202-2036 Atty Ronni¢ Jewett
— crested
P.O. No. Terms. Rep Project
101035001306 ‘Due on receipt RRA Disposable Face Masks
Description ay Rate Amount
Disposable Face Maeka - CE NPS020030053 400,000 0.64 84,000.00
Baisnce of 375K remaining
Shipping. 9 0.00 0.09
Ovar 150 ibs. Use Optitreight, Call 888-457-5861 to arrange
pick up
Under 150 los.: Use FedEx Ground, Shipper # 476568749
BMC
**Credit card payments will incur # 3% convenience fee Subtotal $64,000.00
**Paymonts not received within 30 days are subject to w 1.5% per month fete charge
[**Any issues with the order must be reported within business days uf tecciving the order | Salow Tax (0.0%) $0.00
Total $64,000.00
Payments/Credits $0.00
‘Thank you for your business.
mae EXHIBIT Balance Due —_ 4.20000
_3
Preview
Filing # 120612054 E-Filed 02/01/2021 04:40:33 PM TN THE CIRCUIT COURT OF THE EIGHTH JUDICIAL CIRCUIT IN AND FOR ALACHUA COUNTY, FLORIDA RAD WEAR, INC., CASE NUMBER: 01-2020-CA-003 132 a Florida corporation, and Circuit Civil Division: K Plaintiff, vs. BAPTIST HEALTH SYSTEM, INC. a Florida not for profit corporation, Defendant. SECOND AMENDED COMP. iT AND DEMAND FOR JURY TRIAL COMES NOW, Plaintiff, Rad Wear, Inc. (“Rad Wear”), a Florida corporation, and for its Second Amended Complaint and Demand for Jury Trial against Defendant, Baptist Health System, Inc. (“Baptist Health”), a Florida not for profit corporation, states as follows: JURISDICTION AND IDENTIFICATION OF PARTIES 1. This is an action for damages in excess of $15,000.00. 2. Plaintiff Rad Wear is a Florida corporation which, at all times material hereto, keeps and maintains an office for transaction of its customary business in Alachua County, Florida. 3. Defendant Baptist Health is a not for profit corporation which transacts its customary business in the state of Florida. 4. As more fully set forth below, one or more causes of action herein accrued in Alachua County, Florida, because, among other things, payments to Plaintiff Rad Wear as alleged herein, were and are, at all relevant times hereto, due in Alachua County. "2020 CA 003132" 120612054 Filed at Alachua County Clerk 02/01/2021 04:40:39 PM ESTRad Wear, Inc. v. Baptist Health System, Inc. Alachua County Second Amended Complaint and Demand for Jury Trial f 5. This Court has jurisdiction over Defendant Baptist Health, and venue is proper in Alachua County, Florida, pursuant to section 47.051, Florida Statutes. 6, On or about March 31, 2020, Bonnie L. Jewett, on behalf of Defendant Baptist Health, contacted Plaintiff Rad Wear and requested a quote for 300,000 disposable face masks (an individual mask is referred to as “Mask” and multiple masks are referred to as “Masks”). 7. Plaintiff Rad Wear emailed Ms. Jewett multiple quotes that same day, all referencing 500,000 Masks. 8. Rad Wear also informed Defendant Baptist Health, at the time it provided the initial quotes, that full payment in advance would be required because Rad Wear’s supplier, Clothpromotions Plus, Inc. (“Clothpromotions”), in turn required payment in order to source the order from Clothpromotions’ manufacturer in China. 9. A series of negotiations, both oral and in writing, ensued between Rad Wear and Baptist Health to address pricing issues, the manufacturing process, and timing and volume of deliveries to the United States and specifically to Baptist Health. 10. During the course of these negotiations, Ms. Jewett, on behalf of Defendant Baptist Health, repeatedly and on numerous occasions represented to Plaintiff Rad Wear that Defendant Baptist Health needed 500,000 Masks from Plaintiff Rad Wear. 11. During the course of the negotiations, Defendant Baptist Health was informed repeatedly that the Masks would be manufactured all at once in order for Defendant Baptist Health to benefit from lower pricing, i.e., $.64 per Mask, which Ms. Jewett requested and accepted, further implying from her conduct that Plaintiff Rad Wear should proceed with arranging for the delivery of the 500,000 Masks to Defendant Baptist Health.Rad Wear, Inc. v. Baptist Health System, inc, Alachua County Second Amended Complaint and Demand for Jury Trial 12. During the course of the negotiations, Defendant Baptist Health was informed repeatedly that the Masks would be shipped from China approximately 100,000 Masks at a time because it would otherwise take much longer to ship all 500,000 at once, due in part, to uncertainties during the COVID-19 pandemic. Ms. Jewett requested and accepted these shipment arrangements, further implying from her conduct that Plaintiff Rad Wear should proceed with arranging for the delivery of the 500,000 Masks to Defendant Baptist Health. 13. At all relevant times hereto, Ms. Jewett, on behalf of Defendant Baptist Health, knew or had reason to know that there was no guarantee as to the dates of delivery of any of the 500,000 Masks and represented that Defendant Baptist Health would be flexible in light of the uncertain times due to the COVID-19 pandemic. 14. At all relevant times hereto, Ms. Jewett, on behalf of Defendant Baptist Health, represented to Plaintiff Rad Wear that Defendant Baptist Health was willing to accept deliveries of approximately 100,000 Masks or even less at a time. 15. Plaintiff Rad Wear relied on the foregoing representations and related conduct of Ms. Jewett, which induced Plaintiff Rad Wear to deposit $50,000 with Clothpromotions and commit to total payment to Clothpromotions of a far greater amount in order to secure the delivery of the 500,000 Masks to Defendant Baptist Health. 16. On April 10, 2020, Ms. Jewett, on behalf of Defendant Baptist Health, entered in to a contract with Plaintiff Rad Wear, whereby Baptist Health reaffirmed its commitment to “a TOTAL order of 500k pieces” from Rad Wear, to be delivered approximately 100,000 at a time. Although the signature line is dated April 20, 2020, attached hereto and incorporated herein as Exhibit 1 is a true copy of the agreement which Ms. Jewett signed on April 10, 2020 (“Agreement”).Rad Wear, Inc. v. Baptist Health System, Inc, Alachua County Second Amended Complaint and Demand for Jury Trial 17. All 500,000 Masks were produced within a week, of which Ms. Jewett was aware at the time, and never did she request to cancel any portion of the 500,000 order. 18. During the course of the parties’ dealings, Ms. Jewett represented to Plaintiff Rad Wear that, although Defendant Baptist Health ordered and agreed to purchase 500,000 Masks at $.64 per Mask, solely to ensure Defendant Baptist Health’s installment payment upon each delivery, she needed Plaintiff Rad Wear to provide an “estimate” of 100,000 Masks per delivery. Ms. Jewett further represented that such estimate internally allows the hospital to generate an internal purchase order authorizing the installment payments to Plaintiff Rad Wear. Plaintiff Rad Wear would then invoice upon a delivery in which case Defendant Baptist Health would wire an installment payment to Plaintiff Rad Wear. 19, In reliance on Ms. Jewett’s representations, Plaintiff Rad Wear included in multiple estimates and in the Agreement the statement “100k at a time...” in addition to the language “a TOTAL order of 500k pieces”. See, e.g., Exhibit 1. 20. At all relevant times hereto, Defendant Baptist Health never objected to the language “a TOTAL order of 500k pieces” in any estimate or on the Agreement. 21. The first shipment included 25,000 Masks and was delivered on or about May 8, 2020 to Defendant Baptist Health. 22. Plaintiff Rad Wear invoiced for these 25,000 Masks on or about May 8, 2020, which reflected a balance of 475,000 Masks to which Defendant Baptist Health did not object. A true and complete copy of the invoice is attached hereto as Exhibit 2. 23. A second shipment of 100,000 Masks was already in transport from the manufacturer of which Ms. Jewett was aware at the time, on or around May 8, 2020, and delivered to Defendant Baptist Health shortly thereafter.Rad Wear, Inc. v. Baptist Health System, Inc, Alachua County Second Amended Complaint and Demand for Jury Trial 24, Plaintiff Rad Wear invoiced for these 100,000 Masks on or about May 8, 2020, which reflected a balance of 375,000 Masks to which Defendant Baptist Health did not object. A true and complete copy of the invoice is attached hereto as Exhibit 3. 25. On or about May 7, 2020, Plaintiff Rad Wear was contacted via email by Ms. Gretchen Miller, on behalf of Defendant Baptist Health, inquiring whether the remaining Masks could be cancelled. 26. Baptist Health has only accepted delivery of and paid for the above 125,000 Masks and has failed and refused to accept delivery of and pay for the balance of the order, which consists of 375,000 Masks. 27. On or about July 15, 2020, Ms. Miller also admitted to Plaintiff Rad Wear that Ms. Jewett had mishandled the Mask order and had Ms. Miller been involved, Defendant Baptist Health would not be in breach. 28. Via voicemail dated May 12, 2020, Defendant Baptist Health also admitted to the purchase of hundreds of thousands of Masks, far more than 125,000. 29. The undelivered 375,000 Masks, at all relevant times hereto, are in the possession of Clothpromotions although such Masks may be delivered to Plaintiff Rad Wear in Alachua County at a later time. 30, Plaintiff Rad Wear has performed all of its obligations under the Agreement and all other conditions precedent have occurred. COUNTI Violation of Florida’s Unfair and Deceptive Trade Practices Act 31. Plaintiff realleges the allegations set forth in Paragraphs 1-29 above as if set forth herein in full.Rad Wear, Inc. v, Baptist Health Systent, Ine. Alachua County Second Amended Complaint and Demand for Jury Trial 32. Pursuant to Section 501,202(2), Section 501.203(6), Section 501.203(7) and Section 501.211, Florida Statutes, Plaintiff is a “legitimate business enterprise”, “interested party or person”, “consumer” and/or aggrieved person for purposes of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 ef seq. 33. Pursuant to Section 501.203(8) and 501.203(9) of the FDUPTA, Defendant Baptist Health is engaged in a “trade or business”, which includes without limitation, offering money as a “thing of value” to legitimate business enterprises, interested parties or persons, consumers and/or aggrieved persons such as Plaintiff in exchange for masks similar to those at issue in this case, and Defendant Baptist Health was specifically engaged in such trade or business, offering money as a thing of value to Plaintiff in exchange for the Masks. 34. The misrepresentations, conduct, and failure to act of and by Defendant Baptist Health, as set forth in Paragraphs 6-28, are unfair methods of competition, unconscionable acts or practices, and/or unfair and deceptive acts or practices in the conduct of a trade or business, which are therefore unlawful, pursuant to Section 501.204 of the FDUTPA. 35. Asaresult of Defendant Baptist Health’s conduct, Plaintiff Rad Wear has suffered actual damages and is entitled to statutory damages as set forth in the FDUTPA, 36. Pursuant to Section 501.2105 and Section 511.211 of the FDUTPA, Plaintiff Rad Wear is entitled to recovery of its reasonable attorney’s fees and costs. WHEREFORE, Plaintiff Rad Wear respectfully requests compensatory and statutory damages and reasonable attorney’s fees and costs, to be proven at trial, and such other and further relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, Inc, Alachua County Second Amended Complaint and Demand for Jury Trial é COUNT H Breach of Contract: Uniform Commercial Code Action for Price 37, Plaintiff realleges the allegations set forth in Paragraphs 1-30 above as if set forth herein in full. 38. Defendant Baptist Health had an obligation, pursuant to the Agreement, to accept delivery of and pay for the balance of the 500,000 Masks, specifically the 375,000 Masks that remain in the possession of Clothpromotions and/or Plaintiff Rad Wear. See, Exhibit 1. 39. Defendant Baptist Health, despite multiple demands made by Rad Wear, has failed and refused to accept delivery of and pay for the 375,000 Masks. 40. Pursuant to the terms of the Agreement, the transaction at issue involves the sale of goods for more than $500 and thus Plaintiff Rad Wear is availed to the rights and remedies afforded under Chapter 672, Florida Statutes (the “Uniform Commercial Code”). See, Exhibit 1. 41. As aresult of Defendant Baptist Health's breach, Plaintiff has been damaged and is entitled to remedies for price due pursuant to Section 672.703(5) and Section 672.709, Florida Statutes. 42, Plaintiff has made reasonable effort to resell the 375,000 Masks at a reasonable price or the circumstances reasonably indicate that such effort, at all relevant times hereto, has been and/or will be unavailing. 43. The price for the 375,000 Masks and due and owing from Defendant Baptist Health is $240,000.00. WHEREFORE, Plaintiff Rad Wear respectfully requests damages in the amount of $240,000.00 and such other and further relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, inc. Alachua County Second Amended Complaint and Demand for Jury Triat Count 11 Breach of Contract: Uniform Commercial Code Action for Contract Price Less Market Price 44. In the alternative to Count {I, Plaintiff realleges the allegations set forth in Paragraphs 1-30 above as if set forth herein in full. 45, Defendant Baptist Health had an obligation, pursuant to the Agreement, to accept delivery of and pay for the balance of the 500,000 Masks, specifically the 375,000 Masks that remain in the possession of Clothpromotions and/or Plaintiff Rad Wear. See, Exhibit 1. 46. Defendant Baptist Health, despite multiple demands made by Rad Wear, has failed and refused to accept delivery of and pay for the 375,000 Masks. 47. Pursuant to the terms of the Agreement, the transaction at issue involves the sale of goods for more than $500 and thus Plaintiff Rad Wear is availed to the rights and remedies afforded under Chapter 672, Florida Statutes (the “Uniform Commercial Code”). See, Exhibit 1. 48. Asa result of Defendant Baptist Health’s breach, Plaintiff has been damaged and is entitled to remedies for contract price less market price pursuant to Section 672.703(5) and Section 672.708, Florida Statutes. 49. The price for the 375,000 Masks, pursuant to the Agreement, is $240,000.00. 50. Defendant Baptist Health has admitted that, all relevant times hereto, the market price for a Mask is $.05, or $18,750.00 for the 375,000 Masks 51. Plaintiff Rad Wear has thus been damaged in the amount of $221,250.00. WHEREFORE, Plaintiff Rad Wear respectfully requests damages in the amount of $221,250.00 and such other and further relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, Inc. Alachua County Second Amended Complaint and Demand for Jury Trial gf Count IV Negligent Misrepresentation 52. In the alternative to Counts I and Ill, Plaintiff realleges the allegations in Paragraphs 1-15 and 17-29 set forth above as if set forth herein in full. 53. As set forth in Paragraphs 6, 10-12, and 18, Defendant Baptist Health made multiple, ongoing, and repeated statements to Plaintiff Rad Wear that Defendant Baptist Health needed 500,000 Masks from Rad Wear and that Defendant Baptist Health needed Rad Wear to provide documentation reflecting an “estimate” of 100,000 Masks per delivery only for purposes of Defendant Baptist Health’s internal purchase order and payment authorization process. 54. The statements concerned material facts that Defendant Baptist Health believed to be true but which were in fact false. 55. Defendant Baptist Health was negligent in making the statements because Defendant Baptist Health should have known that its statements and representations were false. 56. | When making the statements, Defendant Baptist Health intended or expected that Plaintiff Rad Wear would rely on the statements. 57. Plaintiff Rad Wear justifiably relied on the misrepresentations in placing an order and making a financial commitment to Clothpromotions to purchase 500,000 Masks. 58. Defendant Baptist Health’s failure and refusal to accept the remaining 375,000 Masks, despite its representations, has caused damages to Plaintiff Rad Wear in an amount to be proven at trial. WHEREFORE, Plaintiff Rad Wear respectfully requests compensatory and incidental damages to be proven at trial, and such other and further relief as the Court deems just and proper.Rad Wear, Inc. v. Baptist Health System, Inc. Alachua County Second Amended Complaint and Demand for Jury Trial f Count IV Promissory Estoppel 59, In the alternative to Counts H, HI and TV, Plaintiff realleges the allegations in Paragraphs 1-15 and 17-29 set forth above as if set forth herein in full. 60. As set forth in Paragraphs 6, 10-12, and 18, Defendant Baptist Health made multiple, ongoing, and repeated representations to Plaintiff Rad Wear that Defendant Baptist Health needed 500,000 Masks from Rad Wear and that Defendant Baptist Health needed Rad Wear to provide documentation reflecting an “estimate” of 100,000 Masks per delivery only for purposes of Defendant Baptist Health’s internal purchase order and payment authorization process. 61. ‘The statements concerned material facts that are contrary to Defendant Baptist Health’s later-asserted position that Defendant Baptist Health is not responsible for and will not pay for the 375,000 Masks. 62. Plaintiff Rad Wear reasonably relied on the misrepresentations of Defendant Baptist Health. 63. Plaintiff Rad Wear changed its position to its detriment as a result of Defendant Baptist Health’s misrepresentations and Plaintiff Rad Wear’s reliance thereon, by placing an order and making a financial commitment to Clothpromotions to purchase 500,000 Masks. 64. Defendant Baptist Health’s failure and refusal to accept the remaining 375,000 Masks, despite its misrepresentations, has caused damages to Plaintiff Rad Wear in an amount to be proven at trial. WHEREFORE, Plaintiff Rad Wear respectfully requests compensatory and incidental damages to be proven at trial, and such other and further relief as the Court deems just and proper. 10Rad Wear, Inc. v, Baptist Health System, Inc. Alachua County Second Amended Complaint and Demand for Jury Trial Count V Contract Reformation 65, In the alternative to Counts Il, Hl, 1V, and V, Plaintiff realleges the allegations in Paragraphs 1-30 set forth above as if set forth herein in full. 66. The reference to “100k pieces at a time...” set forth in the Agreement was the result of either a mutual mistake of Plaintiff and Defendant or a unilateral mistake by Plaintiff Rad Wear coupled with inequitable conduct of Defendant Baptist Health through its failure and refusal to accept and pay for the remaining 375,000 Masks. See, Exhibit 1. 67. The language “100k pieces at a time...” fails to express the agreement of the Plaintiff and Defendant that Defendant Rad Wear would accept and pay for 500,000 Masks as otherwise set forth in the Agreement. See, Exhibit 1. 68. Asa result of the mistake as set forth above, whether mutual or unilateral, Plaintiff Rad Wear has been damaged in an amount to be proven at trial. WHEREFORE, Plaintiff Rad Wear respectfully requests reformation of the Agreement to remove reference to “100k pieces at a time...”, compensatory and incidental damages to be proven at trial, and such other and further relief as the Court deems just and proper. FOLDS, WALKER & MALTBY, LLC /s/ Richard B, Maltby RICHARD B. MALTBY FBN: 0123602 527 E. University Avenue Gainesville, FL 32601 rich@fwmlawfirm.com brianna@fwmlawfirm.com (352) 372-1282 (352) 375-9960 (facsimile) Attorney for Plaintiff 11Rad Wear, Inc. v. Baptist Health System, Inc. Alachua County Second Amended Complaint and Demand for Jury Trial / CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed via Florida Court’s Electronic E-Filing Portal and served via email to Michael T. Fackler, Esq. at mfackler@milamhoward.com, on this 1st day of February, 2021. FOLDS, WALKER & MALTBY, LLC __/s/ Richard B. Maltby RICHARD B. MALTBY FBN: 0123602 527 E. University Avenue Gainesville, FL 32601 rich@fwmlawfirm.com brianna@fwmlawfirm.com (352) 372-1282 (352) 375-9960 (facsimile) Attorney for Plaintiff 12Rad Wear, Inc. “IN 2135 NW 40th Terrace, Suite A eA Kk Gainesville, FL. 32605 Office (352) 727-4498 Fax (352) 727-4499 info@radweardasigns.com Www. fadweardesigns.com L Bill To Ship To. Baptist Medical Center PO BOX 45128 Jacksonville, FL 32232 (904) 202-2036 Baptist Medical Center - Warehouse 3563 Philips Hwy, Suite B50! jacksonville, 207 Atir: Ranale te P.O. No. Terme Rep Project 101035001308 Due on receipt RR-AH Disposable Face Masks Description aly Rate Amount Disposable Face Masks - CE NPS020030083 *400K pieces at a time, priced tor 6 TOTAL order of 500K pieces Shipping: FedEx Ground, Using Client's Shipper # Production Time: 10-16 business days FIRM in-hands date. ASAP “inventory is subject to change **Eatimate is valid through 04/10/20 160,000 0.64 84,000.00 9.00 0.00 order completion **Credit card payments wil} incur « 3% convenience fee *This is NOT an invoice, please do nol pay off of this estimate, An invoice will bu sont on Subtotal $64,000.00 5 Bontisie Ln srzorg029 Sales Tax (0.0%) $0.00 Total $64,000.00 Pisase sign & remit to above e-mail address or fax number to begin processing order. Thanks) EXHIBIT aRad Wear, Inc. . fab 2135 NW 40th Terrace, Suite A I nvoice lA ik Gainesville, FL 32605 ern vi ~ Office (252) 727-4408 Date fovoice # Fax (352) 727-4499 info@jradweardesigns.com 5/772020 ATSTT www. radweardesigns.com Bit To Ship To Baptist Medical Cenier Baptist Medical Center - Warehnuce PO BOX 45128 3563 Phibyps wy, Suite F-SOt Jacksonville, FL 32232 Jacksonville PL 92207 (904) 202-2036 Adin: Boanic Jowntt [ P.O. No. Terms Rep Project | 101095001306 Due on teceint RR-AH Disposabie Face Manks | Description Oty Rate Amaunt Disposable Face Maska - CE NP&O20030053 26,000 oes 16,000.00 Balance of 475K remaining Shipping: 8 9.00 0.00 Ovar 150 ibs. Use Optireight, Call 888-457-5851 to arrange pick up Under 180 bbs.: Une FedEx Ground, Shipper # 476568749 1BMC **Credit card paymenix will incur » 3% cunvenionce fee Subtotal $16,000.00 **Paymenta not received within 30 deys are subject to a 1.5% per month luc charge [FeAny isoucs with the order must be reported within 5 business days of receiving the order Sales Tax (0.0%) $0.00 Total $16,000.00 Payments/Credits $0.00 Thank fe Bien yank you for your business. Balance Bue $16,000.00 EXHIBITRad Wear, Inc. bh 2135 NW 40th Terrace, Suite A Gainesville, FL 32605 ° WEAR fice (350) 727-4498 Date invoice @ Fax (352) 727-4489 info@radweardesigns com $/26/2020 17688 www radweardasigns.com Ba To Ship To. Baptist Medical Canter Baptie Medical Cenies « Warchouse PO BOX 45126 3592 Phibps liwy, Suite L594 Jacksonville, FL 32232 Jacksonvitte, PL 32207 (804) 202-2036 Atty Ronni¢ Jewett — crested P.O. No. Terms. Rep Project 101035001306 ‘Due on receipt RRA Disposable Face Masks Description ay Rate Amount Disposable Face Maeka - CE NPS020030053 400,000 0.64 84,000.00 Baisnce of 375K remaining Shipping. 9 0.00 0.09 Ovar 150 ibs. Use Optitreight, Call 888-457-5861 to arrange pick up Under 150 los.: Use FedEx Ground, Shipper # 476568749 BMC **Credit card payments will incur # 3% convenience fee Subtotal $64,000.00 **Paymonts not received within 30 days are subject to w 1.5% per month fete charge [**Any issues with the order must be reported within business days uf tecciving the order | Salow Tax (0.0%) $0.00 Total $64,000.00 Payments/Credits $0.00 ‘Thank you for your business. mae EXHIBIT Balance Due —_ 4.20000 _3