IN THE CIRCUIT COURT OF THE _____ JUDICIAL CIRCUIT IN AND FOR __________________ COUNTY, FLORIDA CASE NO.

: , Plaintiff, v. , Defendants. ________________________________/ DEFENDANTS MOTION TO DISMISS AND REQUEST FOR JUDICIAL NOTICE Defendants move to dismiss the amended complaint filed by Plaintiff and in support thereof states as follows, reserving the right to supplement this motion: REQUEST FOR JUDICIAL NOTICE Defendants hereby requests this court take judicial notice, pursuant to Chapters 90.201, 90.202 and 90.203, including the pleadings filed for the record in this cause for purposes of the Defendants motion to dismiss. STANDARD ON MOTION TO DISMISS 1. A motion to dismiss tests the legal sufficiency of the Plaintiffs complaint. See, Crocker v. Marks, 856 So.2d 1123 (Fla. 4d DCA 2003); Jallali v. Barry University, 746 So.2d 583 (Fla. 3d DCA 1999). 2. A motion to dismiss requires the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted. If the complaint does not state a cause of action upon which relief can be granted, the court is required to enter an order of dismissal. See, Nero v. Continental Country Club, 979 So.2d 263 (Fla. 5d DCA 2007). 3. A Plaintiff is obligated to provide grounds for the entitlement to relief and such grounds require more than mere labels and conclusions. 4. A formulaic recitation of the elements of a cause of action will not suffice, as a Plaintiff must set forth factual allegations that raise a right to relief above speculation and on the assumption that all of the allegations of the complaint are true. ARGUMENT IN SUPPORT OF DISMSSING AMENDED COMPLAINT 1

5.

The Plaintiffs amended complaint filed in this action fails to state a cause of action on the following grounds:

6.

Count I Breach of Loan Agreement and Count II Contract of Guaranty fail to state a cause of action due to the failure of plaintiff to attach a copy of the cause of action as required by Rule 1.130.1

7.

The documents attached and denoted as Exhibit A to the Amended Complaint are insufficient and do not establish a contractual relationship, as the material terms are missing.

8.

Specifically, in Counts I & II and the general allegations (paragraphs 1-16) realleged therein, the Plaintiff alleges the existence of a Loan Agreement denoted as Exhibit A. See, Amended Complaint at paragraphs 8, 10, 26.

9.

However, by the Plaintiffs own previous admissions in its Motion for Final Summary Judgment, plaintiff admitted it cannot establish the essential and material terms of the contract acknowledging it does not have the approval letter in its possession. See, page 13 of Plaintiffs Motion for Final Summary Judgment served May 21, 2010 at footnote 2.

10.

The Plaintiff further admitted in its Amended Answers to Defendants Amended Request for Admissions Numbers 2 and 3,2 served on March 27, 2012, that Exhibit A as attached to the initial complaint is merely an application for a line of credit.

11.

Exhibit A is the same document attached to both complaints filed in this action and is supplemented in the Amended Complaint with an illegible document titled Small Business Credit Express Agreement.

12.

Specifically, on its face and within the four corners of the Amended Complaint the Small Business Credit ExpressTM Application (Exhibit A) states on the second page under the heading Authorization Agreement, [i]f approved, Applicant will receive an

Rule 1.130(a) provides Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments. Request Number 2: Admit that Exhibit A is an application for credit with Bank of America. Request Number 3: Admit that Exhibit A is a true and correct copy of the application for credit with Bank of America. 2
2

approval letter. . . that . . . will specify Applicants credit limit, the initial interest rate and the margin to be added to the index value to determine the period rate adjustments. 13. That Approval Letter is the critical document that would establish the material terms of contractual obligations between the parties and has never been produced in discovery during the 4 years this case has been pending. 14. A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint. See, Amiker v. Mid-Century Ins. Co., 398 So.2d 974 (Fla. 1d DCA 1981) and Contractors Unlimited, Inc., v. Nortrax Equipment Co., 833 So.2d 286 (Fla. 5d DCA 2002). 15. Clearly, the document titled Small Business Credit ExpressTM Application, as contained in Exhibit A, is inadequate to state a cause of action for Breach of Loan Agreement and Contract of Guaranty because it fails to set forth the material terms. 16. The same deficiencies apply to the document titled Small Business Credit Express Agreement as contained in Exhibit A of the Amended Complaint, as this document is illegible. See, Contractors Unlimited, Inc., v. Nortrax Equipment Co., 833 So.2d 286 (Fla. 5d DCA 2002). 17. Thus, a party seeking affirmative relief may not be granted such relief that is not supported by the pleadings. 18. Both documents contained in Exhibit A contain deficiencies that fail to support the relief sought in Counts I and II within the four corners of the complaint. 19. Here the Plaintiff cannot establish an entitlement to relief within the four corners of the complaint under Counts I and II as both the Small Business Credit ExpressTM Application and the Small Business Credit Express Agreement are insufficient to and fail to state a cause of action. 20. As a result of the Plaintiffs failure to attach those material documents required by Rule 1.130(a), Counts I & II fail to state a cause of action and must be dismissed with prejudice. 21. Count III Unjust Enrichment fails to state a cause of action as this claim asserts the existence of an express contract, allegations 8-16, 33-38.

22.

Unjust enrichment, although described as a quasi-contract action at law available when there is no express contract between the parties, is a legal fiction described as an obligation imposed by law to do justice even though it is clear that no promise was ever made or intended. See, E.g., Boyce Constr. Corp. v. District Bd. Of Trustees, 414 So. 2d 634, 637, n.1 (Fla. 5d DCA 1982); Carter v. Suggs, 190 So. 2d 784, 788 (Fla. 1d DCA 1996); Tipper v. Great Lakes Chem. Co., 281 So. 2d 10, 13 (Fla. 1973); John D. Calamari & Joseph M. Perillo, The Law of Contracts 1-12 (2d ed. 1977).

23.

Hence recovery under a claim for unjust enrichment applies only where there is no express contract. See, Commerce P'ship 8098 Ltd. P'ship v. Equity Contr. Co., 695 So.2d 383, 386 (Fla. 4d DCA 1997); Della Ratta v. Della Ratta, 927 So.2d 1055 (Fla. 4d DCA 2006).

24.

Here, the Plaintiff alleges in Count III that there is an express contract between the parties.3

25.

As a result of Plaintiffs claim for unjust enrichment, Count III, establishing the existence of an express contract within the four corners of the Amended Complaint, the Plaintiff has failed to state a cause of action for relief under the theory of unjust enrichment and this claim must be dismissed with prejudice.

26.

Count IV Money Lent is an action at law which lies whenever there has been a payment of money from the Plaintiff to the Defendant as a loan.

27.

To state a claim for money lent, the plaintiff must allege within the four corners of the complaint that: 1) money was delivered to the defendant, 2) the money was intended as a loan and 3) the loan has not been repaid.

28.

First, the Plaintiff has failed to establish the delivery of money to the Defendant as the Plaintiff merely alleges it lent money to the Defendant and in support attaches a transaction history to the Amended Complaint denoted as Exhibit B.

The Plaintiff admitted in other pleadings, including its Motion for Final Summary Judgment and Motion for Leave to Amend Complaint, it is unable to prove the essential contract terms as a result of no longer having the pertinent and necessary documents to prove its case. See, page 13 of Plaintiffs Motion for Final Summary Judgment footnote 2; page 1 of Plaintiffs Motion for Leave to Amend Complaint at paragraph 2 and 3. 4

29.

Exhibit B establishes a transaction history from July 25, 2005 to July 21, 2008 and fails to establish money was lent on or about January 24, 2005. Amended Complaint at paragraph 40.

30. 31.

Second, the Plaintiff has failed to establish the money lent was intended as a loan. Third, the Plaintiff has failed to establish the loan was not paid as the transaction history, Amended Complaint Exhibit B, shows payments were made by Defendant.

32.

Here, the allegations of the Amended Complaint, even when read in the light most favorable to the Plaintiff, does not establish within the four corners of the complaint the requisite elements for a cause of action based on Money Lent.

33.

While Plaintiff alleges the existence of a loan at allegations 8-16 and Counts I and II of the Amended Complaint, the documents to support these allegations, Exhibit A, fall short as discussed supra.

34.

Exhibit A is insufficient to establish that the Plaintiff lent money to Defendant as the essential and material terms are not contained in these documents. See, Amiker v. MidCentury Ins. Co., 398 So.2d 974 (Fla. 1d DCA 1981) and Contractors Unlimited, Inc., v. Nortrax Equipment Co., 833 So.2d 286 (Fla. 5d DCA 2002).

35.

To the contrary, Plaintiff incorporates its general allegation that the Defendant withdrew funds and made periodic payments. This description is more typical of a trust rather than loan relationship between Plaintiffs and Defendant. See, Bankers Life & Cas. Co. v. Gaines Const. Co., 199 So. 2d 482 (Fla. 3d DCA 1967).

36.

Because the Plaintiff does not plead facts from which the Court can reasonably infer the money withdrawn by Defendant was intended as a loan to Defendant, the Plaintiff fails to state a cause of a cause of action for money lent within the four corners of the complaint and this count must be dismissed with prejudice.

37.

Count IV(V) Open Account fails to state a cause of action as this claim asserts the existence of a contract (allegations 1-16) and fails to establish the full and complete transaction history between the parties as a result of Exhibit B attached to the Amended Complaint being incomplete.

38.

Specifically, the Plaintiff asserts at paragraph 9 of the Amended Complaint that the Defendant withdrew funds from January 2005 through July 2008.

39.

However, Exhibit B, in support of paragraph 9, only provides transactions from July 25, 2005 to July 21, 2008 and is incomplete.

40.

An open account is "an unsettled debt arising from items of work and labor, goods sold and delivered with the expectation of further transactions subject to future settlement and adjustment." See, Robert W. Gottfried, Inc. v. Cole, 454 So.2d 695, 696 (Fla. 4d DCA 1984). Moreover, an open account "should not include express contracts or other obligations that have been reduced to writing." See, H & H Design Builders, Inc. v. Travelers' Indem. Co.,639 So.2d 697, 700 (Fla. 5d DCA 1994).

41.

Plaintiff asserts in its claim for open account the existence of an express contract, incorporating allegations 8-16 and does not allege the expectation of future transactions. See Amended Complaint allegations 8-16.

42.

In order to state a valid claim on an open account, the claimant must attach an "itemized" copy of the account. See, Moore v. Boyd, 62 So.2d 427 (Fla.1952).

43.

Further, Exhibit B is inadequate as it only provides a partial transaction history from July 25, 2005 to July 21, 2008, yet the Amended Complaint asserts at paragraph 9 the Defendants withdrew funds and made periodic payments from January 2005 through July 2008. See, Evans v. Delro Indus., Inc., 509 So.2d 1262 (Fla. 1d DCA 1987); Alderman Interior Systems, Inc. v. First National-Heller Factors, Inc., 376 So.2d 22 (Fla. 2d DCA 1979).

44.

An obligation does not become an "open account" simply because the amount due under a contract requires calculation. An obligee under a contract cannot avoid the requirement of pleading and proving a cause of action based on a contract by placing its demand on a "statement of account" and mailing it to the obligor. See, H & H Design Builders, Inc. v. Travelers' Indem. Co.,639 So.2d 697, 700 (Fla. 5d DCA 1994).

45.

Clearly, Exhibit B does not evidence the necessary elements for the Plaintiff to establish a cause of action for Open Account as the attachment is an incomplete transaction history.

46.

As a result Plaintiff fails to state a cause of a cause of action for Open Account within the four corners of the complaint and this claim must be dismissed with prejudice.

CONCLUSION 47. Under the standard announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) by the Supreme Court, the Amended Complaint fails to survive Defendants motion to dismiss because Plaintiff has not supplied specific factual allegations to overcome the defects in the claims which are: a) the additional claims are legally incompatible with the existence of an express written contract and claims of liquidated damages for the breach thereof; b) the documents attached by Plaintiff as exhibits are inadequate (Exhibit A does not containing the material terms and Exhibit B is incomplete) and, c) the exhibits (A & B) affirmatively show that no accounting was ever provided to the Defendant by the Plaintiff or ever agreed between the parties. 48. A fair reading of the Amended Complaint shows that a purely contractual dispute has arisen between Plaintiff and Defendant and the assertion of new claim for unjust enrichment, money lent and open account have nothing to do legally or factually with the original claims. WHEREFORE Defendants move to dismiss Plaintiffs Amended Complaint as set forth herein. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy hereof has been served on _________________ to: .

______________________________ Attorney for Defendants Florida Bar No.