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Filing # 92948701 E-Filed 07/22/2019 04:13:50 PM
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IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
LEAH M. HUBBARD, CASE NO. CASE NO.: 2019CA00232
Plaintiff
VS.
THE YATES LAW FIRM
E. CLAYTON YATES, P.A.
Defendants.
i
DEFENDANT’S MOTION TO DISMISS FOURTH AMENDED STATEMENT OF
CLAIM/COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION WITH
MEMORANDUM OF LAW
DEFENDANT moves to Dismiss Plaintiffs Fourth Amended Statement of
Claim/Complaint for failure to state a cause of action for Civil Theft and Breach of Contract
pursuant to Rule 1.140(b)(6) F.R.C.P. and in support thereof states as follows:
Plaintiff's Fourth Amended Statement of Claim/Complaint hereafter FASC states in
Paragraph 2, “This is an action for damages for breach of contract with civil theft with felonious
intent”,
Plaintiff's FASC fails to state a claim for Civil Theft under Florida Statute 772.11 as it
does not allege the elements of a cause of action necessary to meet the threshold requirements of
Civil Theft under 772.11 of the Florida Statutes.
Plaintiff's FASC fails to state a cause of action for breach of contract.MEMORANDUM OF LAW
A. THE LEGAL STANDARD
“Whether a complaint is sufficient to state a cause of action is an issue of law.” WLR.
Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So. 2d 297, 300 (Fla. 4th DCA
1999). “To state a cause of action, a complaint must allege sufficient ultimate facts to show that
the pleader is entitled to relief.” Id. at 300 (quoting Perry v. Cosgrove, 464 So. 2d 664, 665 (Fla.
2d DCA 1985); Fla. R. Civ. P. 1.110(b) (requiring “a short and plain statement of the ultimate
facts showing that the pleader is entitled to relief”). While “courts must liberally construe, and
accept as true, factual allegations in a complaint and reasonably deductible inferences therefrom,”
they “need not accept ... conclusory allegations. unwarranted deductions, or mere legal
conclusions made by a party.” Id. (citing Response Oncology. Inc. v. Metrahealth Ins. Co., 978 F.
Supp. 1052, 1058)(S.D. Fla. 1997). Thus, the question for the trial court to decide is whether,
assuming the well-pleaded factual allegations in the Complaint are true, Plaintiff would be entitled
to the relief requested.
Florida is a fact-pleading jurisdiction. See: Continental Baking Co. v. Vincent, 63 So.2d
242, 244 (Fla. Sth DCA 1994): Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla. 1990) (Florida
Rule of Civil Procedure 1.110(b) (2) requires that [a] pleading which sets forth a claim for relief .
. . Must state a cause of action and shall contain .. . a short and plain statement of the ultimate facts
showing that the pleader is entitled to relief. Florida’s pleading rule forces counsel to recognize
the elements of their cause of action and determine whether they have or can develop the facts
necessary to support it, which avoids a great deal of wasted expense to the litigants and
unnecessary judicial effort. See: Continental Baking Co., supra at 244. Furthermore, at the outset
of a suit, litigants must state their pleadings with sufficient particularity for a defense to be
2prepared. See: Arky, Freed, Stearns, Watson. Greer, Weaver & Harris, PLA. v. Bowmar Instrument
Corp.,537 So.2d 561 (Fla. 1988).
“Mere legal conclusions are fatally defective unless substantiated by sufficient allegations
of ultimate fact: and every fact essential to the cause of action must be plead distinctly, definitely,
and clearly.” Ocala Loan Co. v. Smith, 155 So, 24 711, 716 (Fla. 1S DCA 1963)(emphasis added).
A party does not properly plead a cause of action by alleging conclusions of law that
merely track the language of the statutes and lack factual allegations. See Ginsberg v. Lennar
Florida Holdings. Inc.. 645 So, 2d 490, 501 (Fla. 3d DCA 1994),
Rule 1,110(f) F.R.C.P., Separate Statements, says in pertinent part: “.... Each claim
founded upon a separate transaction or occurrence .,. shall be stated in a separate count .. when a
separation facilitates the clear presentation of the matter set forth.” In her FASC, Plaintiff
confusingly has elected not to set out separate counts in her pleading but states in paragraph 2.
“This is an action for breach of contract with civil theft with felonious interest.” It appears
Hubbard is conflating two separate causes of action without regard to alleging the required
elements of either, This response will address the FASC’s allegations as if it plead separate
counts for civil theft and breach of contract.
B. THE FOURTH AMENDED STATEMENT OF CLAIM/COMPLAINT FAILS TO
STATE A CAUSE OF ACTION FOR CIVIL THEFT
Plaintiff's Fourth Amended Statement of Claim/Complaint hereafter FAC sets forth a
confusing assortment of factual allegations replete with conflations. conclusory allegations,unwarranted deductions, and unfounded legal conclusions. However, Plaintiff fails to show how
Defendant violated F.S, 772.11 in any fashion.
To maintain a cause of action under the civil theft statute, Hubbard must show by “clear
and convincing evidence” an injury caused by the Defendant’s violation of one or more of the
provisions of the criminal theft laws found in Fla. Stat. 812.012-037. Fla. Stat. 772.1 1; See
Palmer v. Gotta Have It Golf Collectables, Inc. 106 F. Supp. 2d 1289, 1303 (S.D. Fla. 2000)
(stating that “a cause of action for civil theft derives from two statutory sources: the criminal
section setting forth the elements of theft, and the civil section granting private parties a cause of
action for a violation of the criminal section”) (quoting Ames v. Provident Life & Accident Ins.
Co., 942 F.Supp. 551, 560 (S.D. Fla. 1994)). Apparently in Paragraph 19 of her FASC,
Hubbard is attempting to say that “Defendant breached the oral quid pro contract when he
knowingly obtained ... Plaintiff's monetary property ...” and that she can prove by clear and
convincing evidence that Defendant violated section 812.014(1), which provides:
(1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain
or to use, the property of another with intent to, either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit from the
property.
(b) Appropriate the property to his or her own use or to the use of any person not
entitled to the use of the property.
Fla. Star. 812.0140).
In order to establish a violation of section 812.014(1), Hubbard must show that
Defendant “knowingly obtained or used, or endeavored to obtain or use,” Hubbard’s property
with “felonious intent” to “ appropriate the property to [Defendant’s] own use or to the use of
any person not entitled to the use of the property.” Palmer, 106 F.Supp.2d at 1303; See Ames.
942 F.Supp. at 560 (holding that the Plaintiff must show “felonious intent” to commit theft in
4order to establish a violation of section 812.014(1)). That is, “[t}heft is a specific intent crime,
requiring actual knowledge on the part of the Defendant.” Healy v. Suntrust Serv. Corp., 569
S8o.2d 458,460 (Fla. Dist. Ct. App. 1990).
Hubbard has failed to allege ultimate facts showing that Defendant misappropriated any
of her property with felonious intent. Paragraph 2. In trying to glean a sense of Hubbard’s
overarching grievance from the morass of conclusory allegations set out in the twenty two
paragraphs of her FASC it seems she is asserting she was not properly compensated for some
work she performed as set out in her paragraph 3 of her FASC. In Paragraph 17. she alleges
“As a result of the Defendant's deceptive and outrageous business practices, the Plaintiff was
deceived into giving the Defendant her property, the Defendant received that benefit from the
Plaintiff and the Plaintiff received nothing in return.” Nowhere docs she set forth ultimate facts
explaining what property she was deceived into giving and how she received nothing in return,
“Property of another” means property in which a person has an interest upon which another
person is not privileged to infringe without consent, whether or not the other person also has an
interest in the property.” F.S. § 812.012(5) What Hubbard fails to do in any part of her
Complaint is to show that the property she alleges was stolen belonged to her or was ever in her
possession. It appears that at most she can assert that she believes she was owed money by the
Defendant and she was not paid the amount she claims she was owed, which does not equate to
theft. If theft were provable by claiming a defendant owed money to the Plaintiff, even when the
debt is disputed, every creditor would have a viable cause of action for theft. Such is clearly not
the case. Mere legal conclusions are fatally defective unless substantiated by sufficient
allegations of ultimate fact; and every fact essential to the cause of action must be plead
distinctly, definitely, and clearly.” Ocala Loan Co. v. Smith. 155 So. 2d 711, 716 (Fla. IS DCA
51963). To state a claim of Civil Theft ina contractually related scenario a Plaintiff needs to set
forth facts which demonstrate a separate and distinct loss aside from contractual expectation not
met. O’Donnell v. Arcoiries, Inc. 561 So.2d 344, Fla. App. 4 Dist., 1990. The tort of civil theft is
not committed by the mere failure to pay monies contractually due. Gambolati v. Sarkisian, 622
So.2d 47 (Pla. 4" DCA 1993),
‘The requirements to state a cause of action for civil theft have not been met in Hubbard's
FASC and thus any claim for civil theft must be dismissed.
C. THE FOURTH AMENDED STATEMENT OF CLAIM/COMPLAINT FAILS TO
STATE A CAUSE OF ACTION FOR BREACH OF CONTRACT
As to Plaintiff's attempt to a cause of action for breach of contract. The general rule of
contract formation was enunciated by the Florida Supreme Court in Si. Joe Corp. v. McIver, 875
S0.2d 375, 381 (Fla. 2004) (“An oral contract ... is subject to the basic requirements of contract
Jaw such as offer, acceptance, consideration and sufficient specification of essential terms.”). “To
state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if
taken as true, demonstrate that the parties mutually assented to ‘a certain and definite
proposition’ and left no essential terms open.” W.R, Townsend Contracting. Inc. v. Jensen Civil
Construction, Ine.. 728 So.2d 297 (Fla. Ist DCA 1999). See also Carole Korn Interiors, Inc. v.
Goudie, 573 So.2d 923 (Fla. 3d DCA 1990). “The definition of ‘essential term’ varies widely
according to the nature and complexity of each transaction and is evaluated on a case-by-case
basis.” Lanza v. Damian Carpentry. Inc.. 6 So.3d 674, 676 (Fla. Ist DCA 2009). See also
Leesburg Community Cancer Center y. Leesburg Regional Medical Center, 972 So.2d 203, 206
(Fla. 5th DCA 2007) (“We start with the basic premise that no person or entity is bound by acontract absent the essential elements of offer and acceptance (its agreement to be bound to the
contract terms). supported by consideration.”).
In looking at the allegations in the FASC in the light of a claim for breach of contract Ms.
Hubbard makes the following assertions:
¢ Paragraph 7 states “The Plaintiff and the Defendants (sic) had an oral agreement for
paralegal services on a contract basis for pay from 2015 through July 18, 2017."
e Paragraph 8. alleges “On or about July 18, 2017 the Plaintiff and Defendant orally
agreed to quid pro quo agreement for the Defendants (sic) representation in the
Plaintiff's aggravated assault with a deadly weapon case. case number
2107CF000922-A (sic)”.
* Paragraph 9. “The Defendant presented financial terms for his representation of the
Plaintiff's criminal action as a ‘scratch each other’s back’ relationship where the
Plaintiff pays the Defendant 50% of all para-legal services earned by the Plaintiff,
during the course of work for the Defendant’s law firm . starting July 19,2017. and
attorney’s fees and costs to be determined and reduced to writing. *
e Paragraph 14. “On May 23, 2018, in the form of a counter-claim Defendant making a
counterclaim to the Plaintiff's initial Statement of Claim, the Defendants (sic)
produced a billing figure in the amount of $9,569.38 but no billing statement of
invoice attached.”e Paragraph 15. “The Defendant ‘s billing dated May 23, 2018 did not include credit for
attorney’s fees paid by the Plaintiff to the Defendant's (sic) from July 19, 2017 through
October 5, 2017” without explanation or specification of any attomney’s fees paid by
Plaintiff. Apparently, Plaintiff is confused because the Defendant’s counterclaims for
setoff and quantum meruit only asserted the monetary figure calculated for work
performed that would be used as a set off against any amount determined to be due to
Plaintiff.
® Paragraph 16 “The Defendant received attorney’s fees paid by the Plaintiff and the
benefit of work performed by the performed by the Plaintiff for client Louise Routzahn
but denies the Plaintiff the use of all monies he has retained for his personal use for 2
years.” again without explanation or specification of any attorney's fees paid or monies
retained as an ultimate fact.
e Paragraph 17. “as a result of the Defendant's deceptive and outrageous business
practices, the Plaintiff was deceived into giving the Defendant her property, the
Defendant received that benefit and the Plaintiff received nothing in return,” again
without specification of what property the Plaintiff gave as an ultimate fact.
In summary, Plaintiff's FASC is a word salad full of broad conclusory allegations and
statements that mix factually unsupported contentions of theft and fraud yet fails to allege
facts that, if taken as true, demonstrate that the parties mutually assented to ‘a certain anddefinite proposition, leaving no essential terms open” and fails to specify ultimate facts showing
a breach of contract.
WHEREFORE, Defendant requests that Plaintiff's Fourth Amended Statement of
Claim/Complaint be dismissed for failure to state a cause of action.
&. Clayton Yates
426 Avenue A
Ft. Pierce, FL 34950
Phone: 772-465-7990
Facsimile: 772-465-1886
Primary Email: cvates@feeyateslayv.com
Secondary Email wila.com
ee “
By: x : oy
Clayton vies
Florida Bar‘No.: 399720
CERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
to Leah Hubbard, via e-service at leahhubbard0706@email.com and
Way
independentservicesofverobeach@ymail.com on this 2 of July, 2019.
oy . pen
ad A
E. Clayton Yates } ¥
} i
vw
/
Zé /
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Filing # 92948701 E-Filed 07/22/2019 04:13:50 PM nv we IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA LEAH M. HUBBARD, CASE NO. CASE NO.: 2019CA00232 Plaintiff VS. THE YATES LAW FIRM E. CLAYTON YATES, P.A. Defendants. i DEFENDANT’S MOTION TO DISMISS FOURTH AMENDED STATEMENT OF CLAIM/COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION WITH MEMORANDUM OF LAW DEFENDANT moves to Dismiss Plaintiffs Fourth Amended Statement of Claim/Complaint for failure to state a cause of action for Civil Theft and Breach of Contract pursuant to Rule 1.140(b)(6) F.R.C.P. and in support thereof states as follows: Plaintiff's Fourth Amended Statement of Claim/Complaint hereafter FASC states in Paragraph 2, “This is an action for damages for breach of contract with civil theft with felonious intent”, Plaintiff's FASC fails to state a claim for Civil Theft under Florida Statute 772.11 as it does not allege the elements of a cause of action necessary to meet the threshold requirements of Civil Theft under 772.11 of the Florida Statutes. Plaintiff's FASC fails to state a cause of action for breach of contract.MEMORANDUM OF LAW A. THE LEGAL STANDARD “Whether a complaint is sufficient to state a cause of action is an issue of law.” WLR. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So. 2d 297, 300 (Fla. 4th DCA 1999). “To state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.” Id. at 300 (quoting Perry v. Cosgrove, 464 So. 2d 664, 665 (Fla. 2d DCA 1985); Fla. R. Civ. P. 1.110(b) (requiring “a short and plain statement of the ultimate facts showing that the pleader is entitled to relief”). While “courts must liberally construe, and accept as true, factual allegations in a complaint and reasonably deductible inferences therefrom,” they “need not accept ... conclusory allegations. unwarranted deductions, or mere legal conclusions made by a party.” Id. (citing Response Oncology. Inc. v. Metrahealth Ins. Co., 978 F. Supp. 1052, 1058)(S.D. Fla. 1997). Thus, the question for the trial court to decide is whether, assuming the well-pleaded factual allegations in the Complaint are true, Plaintiff would be entitled to the relief requested. Florida is a fact-pleading jurisdiction. See: Continental Baking Co. v. Vincent, 63 So.2d 242, 244 (Fla. Sth DCA 1994): Goldschmidt v. Holman, 571 So.2d 422, 423 (Fla. 1990) (Florida Rule of Civil Procedure 1.110(b) (2) requires that [a] pleading which sets forth a claim for relief . . . Must state a cause of action and shall contain .. . a short and plain statement of the ultimate facts showing that the pleader is entitled to relief. Florida’s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it, which avoids a great deal of wasted expense to the litigants and unnecessary judicial effort. See: Continental Baking Co., supra at 244. Furthermore, at the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be 2prepared. See: Arky, Freed, Stearns, Watson. Greer, Weaver & Harris, PLA. v. Bowmar Instrument Corp.,537 So.2d 561 (Fla. 1988). “Mere legal conclusions are fatally defective unless substantiated by sufficient allegations of ultimate fact: and every fact essential to the cause of action must be plead distinctly, definitely, and clearly.” Ocala Loan Co. v. Smith, 155 So, 24 711, 716 (Fla. 1S DCA 1963)(emphasis added). A party does not properly plead a cause of action by alleging conclusions of law that merely track the language of the statutes and lack factual allegations. See Ginsberg v. Lennar Florida Holdings. Inc.. 645 So, 2d 490, 501 (Fla. 3d DCA 1994), Rule 1,110(f) F.R.C.P., Separate Statements, says in pertinent part: “.... Each claim founded upon a separate transaction or occurrence .,. shall be stated in a separate count .. when a separation facilitates the clear presentation of the matter set forth.” In her FASC, Plaintiff confusingly has elected not to set out separate counts in her pleading but states in paragraph 2. “This is an action for breach of contract with civil theft with felonious interest.” It appears Hubbard is conflating two separate causes of action without regard to alleging the required elements of either, This response will address the FASC’s allegations as if it plead separate counts for civil theft and breach of contract. B. THE FOURTH AMENDED STATEMENT OF CLAIM/COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR CIVIL THEFT Plaintiff's Fourth Amended Statement of Claim/Complaint hereafter FAC sets forth a confusing assortment of factual allegations replete with conflations. conclusory allegations,unwarranted deductions, and unfounded legal conclusions. However, Plaintiff fails to show how Defendant violated F.S, 772.11 in any fashion. To maintain a cause of action under the civil theft statute, Hubbard must show by “clear and convincing evidence” an injury caused by the Defendant’s violation of one or more of the provisions of the criminal theft laws found in Fla. Stat. 812.012-037. Fla. Stat. 772.1 1; See Palmer v. Gotta Have It Golf Collectables, Inc. 106 F. Supp. 2d 1289, 1303 (S.D. Fla. 2000) (stating that “a cause of action for civil theft derives from two statutory sources: the criminal section setting forth the elements of theft, and the civil section granting private parties a cause of action for a violation of the criminal section”) (quoting Ames v. Provident Life & Accident Ins. Co., 942 F.Supp. 551, 560 (S.D. Fla. 1994)). Apparently in Paragraph 19 of her FASC, Hubbard is attempting to say that “Defendant breached the oral quid pro contract when he knowingly obtained ... Plaintiff's monetary property ...” and that she can prove by clear and convincing evidence that Defendant violated section 812.014(1), which provides: (1) A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently: (a) Deprive the other person of a right to the property or a benefit from the property. (b) Appropriate the property to his or her own use or to the use of any person not entitled to the use of the property. Fla. Star. 812.0140). In order to establish a violation of section 812.014(1), Hubbard must show that Defendant “knowingly obtained or used, or endeavored to obtain or use,” Hubbard’s property with “felonious intent” to “ appropriate the property to [Defendant’s] own use or to the use of any person not entitled to the use of the property.” Palmer, 106 F.Supp.2d at 1303; See Ames. 942 F.Supp. at 560 (holding that the Plaintiff must show “felonious intent” to commit theft in 4order to establish a violation of section 812.014(1)). That is, “[t}heft is a specific intent crime, requiring actual knowledge on the part of the Defendant.” Healy v. Suntrust Serv. Corp., 569 S8o.2d 458,460 (Fla. Dist. Ct. App. 1990). Hubbard has failed to allege ultimate facts showing that Defendant misappropriated any of her property with felonious intent. Paragraph 2. In trying to glean a sense of Hubbard’s overarching grievance from the morass of conclusory allegations set out in the twenty two paragraphs of her FASC it seems she is asserting she was not properly compensated for some work she performed as set out in her paragraph 3 of her FASC. In Paragraph 17. she alleges “As a result of the Defendant's deceptive and outrageous business practices, the Plaintiff was deceived into giving the Defendant her property, the Defendant received that benefit from the Plaintiff and the Plaintiff received nothing in return.” Nowhere docs she set forth ultimate facts explaining what property she was deceived into giving and how she received nothing in return, “Property of another” means property in which a person has an interest upon which another person is not privileged to infringe without consent, whether or not the other person also has an interest in the property.” F.S. § 812.012(5) What Hubbard fails to do in any part of her Complaint is to show that the property she alleges was stolen belonged to her or was ever in her possession. It appears that at most she can assert that she believes she was owed money by the Defendant and she was not paid the amount she claims she was owed, which does not equate to theft. If theft were provable by claiming a defendant owed money to the Plaintiff, even when the debt is disputed, every creditor would have a viable cause of action for theft. Such is clearly not the case. Mere legal conclusions are fatally defective unless substantiated by sufficient allegations of ultimate fact; and every fact essential to the cause of action must be plead distinctly, definitely, and clearly.” Ocala Loan Co. v. Smith. 155 So. 2d 711, 716 (Fla. IS DCA 51963). To state a claim of Civil Theft ina contractually related scenario a Plaintiff needs to set forth facts which demonstrate a separate and distinct loss aside from contractual expectation not met. O’Donnell v. Arcoiries, Inc. 561 So.2d 344, Fla. App. 4 Dist., 1990. The tort of civil theft is not committed by the mere failure to pay monies contractually due. Gambolati v. Sarkisian, 622 So.2d 47 (Pla. 4" DCA 1993), ‘The requirements to state a cause of action for civil theft have not been met in Hubbard's FASC and thus any claim for civil theft must be dismissed. C. THE FOURTH AMENDED STATEMENT OF CLAIM/COMPLAINT FAILS TO STATE A CAUSE OF ACTION FOR BREACH OF CONTRACT As to Plaintiff's attempt to a cause of action for breach of contract. The general rule of contract formation was enunciated by the Florida Supreme Court in Si. Joe Corp. v. McIver, 875 S0.2d 375, 381 (Fla. 2004) (“An oral contract ... is subject to the basic requirements of contract Jaw such as offer, acceptance, consideration and sufficient specification of essential terms.”). “To state a cause of action for breach of an oral contract, a plaintiff is required to allege facts that, if taken as true, demonstrate that the parties mutually assented to ‘a certain and definite proposition’ and left no essential terms open.” W.R, Townsend Contracting. Inc. v. Jensen Civil Construction, Ine.. 728 So.2d 297 (Fla. Ist DCA 1999). See also Carole Korn Interiors, Inc. v. Goudie, 573 So.2d 923 (Fla. 3d DCA 1990). “The definition of ‘essential term’ varies widely according to the nature and complexity of each transaction and is evaluated on a case-by-case basis.” Lanza v. Damian Carpentry. Inc.. 6 So.3d 674, 676 (Fla. Ist DCA 2009). See also Leesburg Community Cancer Center y. Leesburg Regional Medical Center, 972 So.2d 203, 206 (Fla. 5th DCA 2007) (“We start with the basic premise that no person or entity is bound by acontract absent the essential elements of offer and acceptance (its agreement to be bound to the contract terms). supported by consideration.”). In looking at the allegations in the FASC in the light of a claim for breach of contract Ms. Hubbard makes the following assertions: ¢ Paragraph 7 states “The Plaintiff and the Defendants (sic) had an oral agreement for paralegal services on a contract basis for pay from 2015 through July 18, 2017." e Paragraph 8. alleges “On or about July 18, 2017 the Plaintiff and Defendant orally agreed to quid pro quo agreement for the Defendants (sic) representation in the Plaintiff's aggravated assault with a deadly weapon case. case number 2107CF000922-A (sic)”. * Paragraph 9. “The Defendant presented financial terms for his representation of the Plaintiff's criminal action as a ‘scratch each other’s back’ relationship where the Plaintiff pays the Defendant 50% of all para-legal services earned by the Plaintiff, during the course of work for the Defendant’s law firm . starting July 19,2017. and attorney’s fees and costs to be determined and reduced to writing. * e Paragraph 14. “On May 23, 2018, in the form of a counter-claim Defendant making a counterclaim to the Plaintiff's initial Statement of Claim, the Defendants (sic) produced a billing figure in the amount of $9,569.38 but no billing statement of invoice attached.”e Paragraph 15. “The Defendant ‘s billing dated May 23, 2018 did not include credit for attorney’s fees paid by the Plaintiff to the Defendant's (sic) from July 19, 2017 through October 5, 2017” without explanation or specification of any attomney’s fees paid by Plaintiff. Apparently, Plaintiff is confused because the Defendant’s counterclaims for setoff and quantum meruit only asserted the monetary figure calculated for work performed that would be used as a set off against any amount determined to be due to Plaintiff. ® Paragraph 16 “The Defendant received attorney’s fees paid by the Plaintiff and the benefit of work performed by the performed by the Plaintiff for client Louise Routzahn but denies the Plaintiff the use of all monies he has retained for his personal use for 2 years.” again without explanation or specification of any attorney's fees paid or monies retained as an ultimate fact. e Paragraph 17. “as a result of the Defendant's deceptive and outrageous business practices, the Plaintiff was deceived into giving the Defendant her property, the Defendant received that benefit and the Plaintiff received nothing in return,” again without specification of what property the Plaintiff gave as an ultimate fact. In summary, Plaintiff's FASC is a word salad full of broad conclusory allegations and statements that mix factually unsupported contentions of theft and fraud yet fails to allege facts that, if taken as true, demonstrate that the parties mutually assented to ‘a certain anddefinite proposition, leaving no essential terms open” and fails to specify ultimate facts showing a breach of contract. WHEREFORE, Defendant requests that Plaintiff's Fourth Amended Statement of Claim/Complaint be dismissed for failure to state a cause of action. &. Clayton Yates 426 Avenue A Ft. Pierce, FL 34950 Phone: 772-465-7990 Facsimile: 772-465-1886 Primary Email: cvates@feeyateslayv.com Secondary Email wila.com ee “ By: x : oy Clayton vies Florida Bar‘No.: 399720 CERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to Leah Hubbard, via e-service at leahhubbard0706@email.com and Way independentservicesofverobeach@ymail.com on this 2 of July, 2019. oy . pen ad A E. Clayton Yates } ¥ } i vw / Zé /