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Filing #66577427 E-Filed 01/16/2018 01:20:24 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY FLORIDA
CASE NO. 2017-CA-004944-0
ASHRAF ISMAIL,
an individual,
Plaintiff,
vs.
ZAID ALQAWSMI,
an individual,
Defendant.
/
RESPONSE TO DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT
COMES NOW the Plaintiff, ASHRAF ISMAIL, by and through his
respective counsel, and files this, his Response to Defendant’s
Motion to Dismiss Amended Complaint, which was filed November 9,
2017, and would say:
Generally speaking, the filing of many complaints is governed
by Rule 1.110 (a) of the Florida Rules of Civil Procedure, which
simply states:
“Forms of action and technical forms for seeking relief and of
pleas, pleadings or motions are abolished.”
The motion to dismiss Plaintiff's amended complaint is an
attempt to ignore that provision of the rule. Further, the law is
quite clear that all well-pleaded matters in a complaint and all
reasonable inferences are deemed to be true in determining a Motion
to Dismiss. Minor v. Brunetti, 43 So 3d 178(Fla 3DCA 2010) and
Grove Isle Association, Inc. Vv Grove Isle Associates, LLP, et.
al., 137 So 3d 1081 (Fla 3DCA 2014).
Further, under Florida’s Choice of Law rules, the laws of the
jurisdiction where a contract was executed govern the
interpretation of substantive law issues regarding the contract.
Lumbermen’s Mutual Casualty Co. Vv August, 530 So.2d 293 (Fla
1988), Walling v. Christian & Craft Grocery Co., 41 Fla 479 (27
So. 46 (1899).
The Defendant in this action has conceded, as stated in
paragraph 6 and other arguments contained in his Motion to Dismiss,
that the operating laws for substantive matters for the court’s
determination in this case are governed by the laws of the State
of Georgia. Likewise, under paragraph 6 of Defendant’s Motion to
Dismiss, Defendant concedes the fact that an oral operating
agreement can be binding on the parties as provided under section
14-11-101 0O.C.G.A. Thus, any operating agreement entered into
between the parties need not be in writing, need not be signed by
the parties, and can be for all intents and purposes an oral
agreement. Plaintiff’s amended complaint states just that.
Paragraph 5 of the Amended Complaint alleges that prior to
incorporating their LLC, the parties had oral discussions of their
intended agreement. The specific terms and provisions of the oral
agreement, which would later be reflected in the incorporation
documents of the LLC, are alleged in paragraphs 5 and 6 of
Plaintiff's amended complaint. The operating agreement between
the parties in this instance dealt with the capital contribution
of the parties. This is specifically alleged in Paragraphs 5(a)
and 5(b) of the amended complaint. Plaintiff further alleges in
Paragraph 6 that the operating agreement, although inartfully
drawn, memorialized the understanding set forth in paragraph 5 and
was then included in the Articles of Incorporation of the LLC,
showing the percent division of profits and losses as well as
contribution of monies. Plaintiff is unaware of any law that
states an operating agreement cannot include provisions relating
to division of capital contribution as well as division of profits
and losses. That is in fact exactly what the parties intended to
do in their prior oral agreement as alleged in paragraph 5 of
Plaintiff's amended complaint and further codified in the articles
of incorporation alleged in paragraph 6 of Plaintiff's amended
complaint.
In addition, paragraph 7 of Plaintiff's amended complaint
references documentation further substantiating and supporting
that the operating agreement entered into between the parties as
relates to division of capital contribution as well as profits and
losses was verified by written confirmation in an email authored
by the Defendant and delivered to the Plaintiff.
The gravamen of Plaintiff's amended complaint is that the
operating agreement (which called for the division of profits and
losses as well as the requirements and division of operating
capital) was violated by the Defendant, and that in spite of his
assurances (as set forth in paragraph 7 of the amended complaint)
that he would adhere to the contract, the conditions of the
contract were in fact not met or honored by the Defendant. In
this case, Defendant never contributed a single dollar to the
operation of the business in spite of the operating agreement
between the parties as set forth in paragraphs 5 and 6 and
confirmed by paragraph 7 of Plaintiff's amended complaint.
Thus, Defendant's argument falls on its face. The agreement
entered into between the parties as alleged in paragraphs 5 and 6
and confirmed in paragraph 7 all relate to an operating agreement
which Defendant openly concedes can be of an oral nature and need
not be written or signed by the parties. The operating agreement
called for the division of profits and losses as well as the
division of operating capital.
Further, and equally as important, both Plaintiff and
Defendant conducted their business as well as expenditures based
upon the agreement as set forth in paragraphs 5, 6 and 7 of
Plaintiff's amended complaint. Paragraph 7 of Plaintiff’s amended
complaint clearly shows that the parties did in fact adhere to
that understanding. The exhibit referenced in paragraph 7 is an
electronic communication from Defendant to Plaintiff calling for
additional capital contribution on the same terms and in the same
percentages as alleged in paragraphs 5 and 6 of Plaintiff’s amended
complaint. In reliance of that understanding, and in furtherance
of the agreement between the parties, Plaintiff tendered the
additional money. The Defendant is estopped to deny its existence
when, as paragraph 7 alleges, he asked for and received additional
capital contribution from the Plaintiff according to the exact
terms of the agreement as alleged in paragraphs 5 and 6.
The remainder of Defendant‘s Motion to Dismiss is basically
an argument of the facts of the case. Motions to Dismiss do not
involve an argument of the facts of the case. As is stated
previously in this response, all well-pleaded matters are deemed
to be true and correct for purposes of a Motion to Dismiss.
Therefore, the allegation that the operating agreement between the
parties is as set forth in paragraphs 5, 6 , and 7 of Plaintiff's
amended complaint is deemed to be true and correct.
Finally, paragraph 12 of Defendant’s Motion to Dismiss is
likewise inapplicable. Defendant cites Georgia Statutes 14-11-
303 and asks the Court to improperly apply it to the current
action. Plaintiff has argued that the operating agreement is as
alleged in paragraphs 5, 6 and 7 of Plaintiff’s amended complaint.
Likewise, the operating agreement, as conceded, need not be in
writing. Again, Plaintiff is unaware of any law that prohibits an
operating agreement from including how profits and losses are
divided or how capital contributions are to be made.
The statute cited by the Defendant has no bearing on this
case. The statute refers to debts incurred by the corporation or
liability, ive, tortious or other liabilities, incurred by the
corporation during its existence. It is intended merely to provide
that members of a limited liability corporation are not indebted
by liabilities for such debts or liabilities incurred by the
corporation during its operation and has no bearing to the
liability of an individual under and operating agreement. Renasant
Bank, Inc. Vv. Earth Res of Franklin Cnty., LLC (MD, Ga 2012),
Gardner v. Macum (665 S.E.2d 336 (Ga. App. 2008), Internal Medicine
Alliance, LLC v. Budell (290 Ga. App. 231, 659 S.E. 2d 668 (Ga.
App 2008)
These cases clearly show that the intent of Georgia Statutes
14-11-303 has no bearing or relationship to Plaintiff’s assertion
and does not insulate Defendant from the personal responsibilities
set forth in an operating agreement setting forth its members’
obligations as to capital contribution.
WHEREFORE , based upon the above and foregoing, the court
should deny Defendant's Motion to Dismiss and grant such other and
further relief as the court deems equitable and just.
I HEREBY CERTIFY that a true and correct copy of the foregoing
was furnished by U.S. Mail and/or electronic delivery this ke
day of January, 2018 to the parties named below.
- Ce
MIKEL W. CARPENTER, ESQ.
126 E. Jefferson St.
Orlando FL 32801
(407) 843-3743
mike@mikelwcarpenterpa.com
mary@mikelwcarpenterpa.com
Florida Bar No. 0224057
Attorney for Plaintiff
Scott Smothers, Esquire
Mitchell L. Davis. Esquire
175 East Main Street, Suite 111
Apopka, Florida 32703
scott@smotherslawfirm.com
service@smotherslawfirm.com
Preview
Filing #66577427 E-Filed 01/16/2018 01:20:24 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY FLORIDA CASE NO. 2017-CA-004944-0 ASHRAF ISMAIL, an individual, Plaintiff, vs. ZAID ALQAWSMI, an individual, Defendant. / RESPONSE TO DEFENDANT’S MOTION TO DISMISS AMENDED COMPLAINT COMES NOW the Plaintiff, ASHRAF ISMAIL, by and through his respective counsel, and files this, his Response to Defendant’s Motion to Dismiss Amended Complaint, which was filed November 9, 2017, and would say: Generally speaking, the filing of many complaints is governed by Rule 1.110 (a) of the Florida Rules of Civil Procedure, which simply states: “Forms of action and technical forms for seeking relief and of pleas, pleadings or motions are abolished.” The motion to dismiss Plaintiff's amended complaint is an attempt to ignore that provision of the rule. Further, the law is quite clear that all well-pleaded matters in a complaint and all reasonable inferences are deemed to be true in determining a Motion to Dismiss. Minor v. Brunetti, 43 So 3d 178(Fla 3DCA 2010) and Grove Isle Association, Inc. Vv Grove Isle Associates, LLP, et. al., 137 So 3d 1081 (Fla 3DCA 2014). Further, under Florida’s Choice of Law rules, the laws of the jurisdiction where a contract was executed govern the interpretation of substantive law issues regarding the contract. Lumbermen’s Mutual Casualty Co. Vv August, 530 So.2d 293 (Fla 1988), Walling v. Christian & Craft Grocery Co., 41 Fla 479 (27 So. 46 (1899). The Defendant in this action has conceded, as stated in paragraph 6 and other arguments contained in his Motion to Dismiss, that the operating laws for substantive matters for the court’s determination in this case are governed by the laws of the State of Georgia. Likewise, under paragraph 6 of Defendant’s Motion to Dismiss, Defendant concedes the fact that an oral operating agreement can be binding on the parties as provided under section 14-11-101 0O.C.G.A. Thus, any operating agreement entered into between the parties need not be in writing, need not be signed by the parties, and can be for all intents and purposes an oral agreement. Plaintiff’s amended complaint states just that. Paragraph 5 of the Amended Complaint alleges that prior to incorporating their LLC, the parties had oral discussions of their intended agreement. The specific terms and provisions of the oral agreement, which would later be reflected in the incorporation documents of the LLC, are alleged in paragraphs 5 and 6 of Plaintiff's amended complaint. The operating agreement between the parties in this instance dealt with the capital contribution of the parties. This is specifically alleged in Paragraphs 5(a) and 5(b) of the amended complaint. Plaintiff further alleges in Paragraph 6 that the operating agreement, although inartfully drawn, memorialized the understanding set forth in paragraph 5 and was then included in the Articles of Incorporation of the LLC, showing the percent division of profits and losses as well as contribution of monies. Plaintiff is unaware of any law that states an operating agreement cannot include provisions relating to division of capital contribution as well as division of profits and losses. That is in fact exactly what the parties intended to do in their prior oral agreement as alleged in paragraph 5 of Plaintiff's amended complaint and further codified in the articles of incorporation alleged in paragraph 6 of Plaintiff's amended complaint. In addition, paragraph 7 of Plaintiff's amended complaint references documentation further substantiating and supporting that the operating agreement entered into between the parties as relates to division of capital contribution as well as profits and losses was verified by written confirmation in an email authored by the Defendant and delivered to the Plaintiff. The gravamen of Plaintiff's amended complaint is that the operating agreement (which called for the division of profits and losses as well as the requirements and division of operating capital) was violated by the Defendant, and that in spite of his assurances (as set forth in paragraph 7 of the amended complaint) that he would adhere to the contract, the conditions of the contract were in fact not met or honored by the Defendant. In this case, Defendant never contributed a single dollar to the operation of the business in spite of the operating agreement between the parties as set forth in paragraphs 5 and 6 and confirmed by paragraph 7 of Plaintiff's amended complaint. Thus, Defendant's argument falls on its face. The agreement entered into between the parties as alleged in paragraphs 5 and 6 and confirmed in paragraph 7 all relate to an operating agreement which Defendant openly concedes can be of an oral nature and need not be written or signed by the parties. The operating agreement called for the division of profits and losses as well as the division of operating capital. Further, and equally as important, both Plaintiff and Defendant conducted their business as well as expenditures based upon the agreement as set forth in paragraphs 5, 6 and 7 of Plaintiff's amended complaint. Paragraph 7 of Plaintiff’s amended complaint clearly shows that the parties did in fact adhere to that understanding. The exhibit referenced in paragraph 7 is an electronic communication from Defendant to Plaintiff calling for additional capital contribution on the same terms and in the same percentages as alleged in paragraphs 5 and 6 of Plaintiff’s amended complaint. In reliance of that understanding, and in furtherance of the agreement between the parties, Plaintiff tendered the additional money. The Defendant is estopped to deny its existence when, as paragraph 7 alleges, he asked for and received additional capital contribution from the Plaintiff according to the exact terms of the agreement as alleged in paragraphs 5 and 6. The remainder of Defendant‘s Motion to Dismiss is basically an argument of the facts of the case. Motions to Dismiss do not involve an argument of the facts of the case. As is stated previously in this response, all well-pleaded matters are deemed to be true and correct for purposes of a Motion to Dismiss. Therefore, the allegation that the operating agreement between the parties is as set forth in paragraphs 5, 6 , and 7 of Plaintiff's amended complaint is deemed to be true and correct. Finally, paragraph 12 of Defendant’s Motion to Dismiss is likewise inapplicable. Defendant cites Georgia Statutes 14-11- 303 and asks the Court to improperly apply it to the current action. Plaintiff has argued that the operating agreement is as alleged in paragraphs 5, 6 and 7 of Plaintiff’s amended complaint. Likewise, the operating agreement, as conceded, need not be in writing. Again, Plaintiff is unaware of any law that prohibits an operating agreement from including how profits and losses are divided or how capital contributions are to be made. The statute cited by the Defendant has no bearing on this case. The statute refers to debts incurred by the corporation or liability, ive, tortious or other liabilities, incurred by the corporation during its existence. It is intended merely to provide that members of a limited liability corporation are not indebted by liabilities for such debts or liabilities incurred by the corporation during its operation and has no bearing to the liability of an individual under and operating agreement. Renasant Bank, Inc. Vv. Earth Res of Franklin Cnty., LLC (MD, Ga 2012), Gardner v. Macum (665 S.E.2d 336 (Ga. App. 2008), Internal Medicine Alliance, LLC v. Budell (290 Ga. App. 231, 659 S.E. 2d 668 (Ga. App 2008) These cases clearly show that the intent of Georgia Statutes 14-11-303 has no bearing or relationship to Plaintiff’s assertion and does not insulate Defendant from the personal responsibilities set forth in an operating agreement setting forth its members’ obligations as to capital contribution. WHEREFORE , based upon the above and foregoing, the court should deny Defendant's Motion to Dismiss and grant such other and further relief as the court deems equitable and just. I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by U.S. Mail and/or electronic delivery this ke day of January, 2018 to the parties named below. - Ce MIKEL W. CARPENTER, ESQ. 126 E. Jefferson St. Orlando FL 32801 (407) 843-3743 mike@mikelwcarpenterpa.com mary@mikelwcarpenterpa.com Florida Bar No. 0224057 Attorney for Plaintiff Scott Smothers, Esquire Mitchell L. Davis. Esquire 175 East Main Street, Suite 111 Apopka, Florida 32703 scott@smotherslawfirm.com service@smotherslawfirm.com