DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HARRY TAUBENFELD, as shareholder of PASSOVER FB., INC.,
Appellant,
v.
JONATHAN LASKO, SAMUEL LASKO, ARLENE LASKO, AVI LASKO,
and LASKO GETAWAYS, LLC.,
Appellees.
No. 4D20-1362
[August 11, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Jack Tuter, Judge; L.T. Case No. CACE18-014466.
Donna Greenspan Solomon of Solomon Appeals, Mediation &
Arbitration, Fort Lauderdale, and Mark R. Osherow of Osherow, PLLC,
Boca Raton, for appellant.
Adam M. Schachter, Gerald E. Greenberg, Freddy Funes, and Mikayla
Espinosa of Gelber Schachter & Greenberg, P.A., Miami, for appellees.
GROSS, J.
Harry Taubenfeld appeals a final order dismissing his Fourth Amended
Complaint with prejudice. The complaint contained claims against various
defendants arising out of a business dispute involving a closely-held
corporation. We reverse the circuit court’s dismissal of the Fourth
Amended Complaint and a certain count in the Second Amended
Complaint, holding that Taubenfeld stated causes of action for breach of
fiduciary duty, aiding and abetting breach of fiduciary duty, conversion,
and aiding and abetting conversion.
Background
Harry Taubenfeld and Jonathan Lasko (“Jonathan”) are each 50%
shareholders of Passover FB, Inc. The essence of the Fourth Amended
Complaint is that Jonathan, with the assistance of his family, froze
Taubenfeld out of Passover FB and transferred its assets to a new entity,
Lasko Gateways, LLC.
The operative complaint’s allegations, which must be accepted as true
for the purposes of this appeal, reveal the following facts.
Passover FB was incorporated in 2010 and did business under the
name Lasko Kosher Getaways. Passover FB’s principal business was
holding high-end getaways at luxury hotels during Passover holidays.
There was no shareholder agreement between Jonathan and
Taubenfeld. No bylaws existed for Passover FB. The shareholders of
Passover FB never elected any directors.
From the corporation’s inception in 2010 until late 2017, Taubenfeld
was the president of Passover FB, running its business operations.
Jonathan served as vice president, overseeing the day-to-day matters and
providing advice about the business’s expenditures. Jonathan appointed
his father, Sam Lasko, his mother, Arlene Lasko, and his brother, Avi
Lasko, to serve “as employees of Passover [FB] and/or as an agent of
Jonathan in his capacity as a senior officer of Passover FB.”
For several years prior to Passover FB’s incorporation in 2010, Sam and
Arlene held annual Passover events through Lasko Family Kosher Tours,
Inc. (“Lasko Tours”). By the end of the 2010 Passover season, however,
Sam and/or Lasko Tours were in debt in excess of $2,000,000. At that
point, Taubenfeld rescued the business by agreeing to become a 50%
owner of the new corporation, Passover FB, which assumed some of Lasko
Tours’ outstanding debt and took ownership of all its assets.
The relationship between Taubenfeld and Jonathan soured in 2017.
Around this time, American Express obtained a judgment confirming an
arbitration award against Taubenfeld for over $750,000. The award
stemmed from another Taubenfeld-owned corporation’s unpaid credit card
bill, which Taubenfeld had personally guaranteed. Taubenfeld sought
indemnification from Passover FB, claiming that the expenditures on this
credit card were incurred on Passover FB’s behalf.
On December 1, 2017, Jonathan “usurped the office of President of
Passover FB” and intentionally took over sole management of Passover FB.
Jonathan made “all strategic and operational business decisions of
Passover FB, effectively ousting [Taubenfeld] as the President of Passover
FB and assuming sole responsibility for all of Passover FB’s business
operations.” Furthermore, Arlene “formed Lasko Getaways as a Florida
Limited Liability Company on December 1, 2017, with the purpose of
diverting Passover FB’s assets to Lasko Getaways.” Arlene and Avi were
the managing members of Lasko Getaways.
2
During the week of December 11, 2017, Taubenfeld’s personal bank
accounts were frozen due to a writ of garnishment issued in the American
Express lawsuit. Taubenfeld contacted Sam to arrange to receive his
paycheck manually. Sam falsely accused Taubenfeld of stealing $300,000
from Passover FB. Sam demanded that Taubenfeld sign a transfer
agreement regarding Taubenfeld’s ownership in Passover FB before
payment of his salary would be authorized.
On February 2, 2018, Taubenfeld’s attorney sent Jonathan a demand
letter, accusing the Laskos of various wrongdoing and insisting that,
among other things, all assets be returned to Passover FB. Litigation
ensued.
The Fourth Amended Complaint
Taubenfeld filed the Fourth Amended Complaint as a derivative action
on behalf of Passover FB against Jonathan, Sam, Arlene, Avi, and Lasko
Getaways (“the Lasko Defendants”). The complaint alleged that on
December 1, 2017, Passover FB’s assets consisted of: (1) advantageous
business relationships with venues in Miami Beach and Aventura; (2) an
advantageous business relationship with the founder of JM Food Design;
(3) a contractual relationship with TB Isle Resort d/b/a Turnberry Isle
Miami, the venue for the 2018 Passover Event; (4) goodwill, with an
estimated value of over $4,500,000, “developed over more than twenty-five
(25) years associated with the Lasko name and owned exclusively by
Passover FB since the formation of Passover FB in 2010”; (5) confidential
customer lists, advertising relationships, catering contracts, and business
history; (6) hard assets, including five tractor-trailers and their contents;
(7) intellectual property consisting of websites; (8) records, bank accounts,
and software; and (9) cash and cash equivalents.
The Fourth Amended Complaint contained five counts:
1. Breach of fiduciary duty against Jonathan.
2. Aiding and abetting breach of fiduciary duty against Sam.
3. Aiding and abetting breach of fiduciary duty against Arlene.
4. Aiding and abetting breach of fiduciary duty against Avi.
5. Conversion against Lasko Getaways.
3
Count 1
Count 1 alleged that Jonathan “breached his fiduciary duty to Passover
FB” and “directly caused Passover FB’s Passover Business to decay, be
wasted and become nonexistent.” Count 1 claimed that Jonathan owed “a
fiduciary duty to Passover FB to perform his duties of managing all of the
business operations of the company in the best interests of Passover FB.”
Count 1 further alleged that Jonathan engaged in multiple acts, described
in 15 lettered paragraphs, all of which involved the transfer of Passover
FB’s assets and business to Lasko Getaways.
Count 1 further alleged that the specified acts constituted a breach of
Jonathan’s fiduciary duty to Passover FB. For example, Count 1 alleged
that “as an officer of Passover FB Jonathan breached one or more of the
three basic fiduciary duties — duty of loyalty, duty of care and duty of good
faith — to Passover FB.” Finally, Count 1 alleged that as a result of
Jonathan’s breaches of his fiduciary duties, “Passover FB has been
substantially damaged in that the assets of Passover FB valued well in
excess of more than $4,500,000.00 as of December 1, 2017, were wasted
and dissipated to a nominal, if any, value.”
Count 2
Count 2 alleged that Passover FB had been damaged as a result of
“Sam’s aiding and abetting Jonathan’s breach of his fiduciary duty to
Passover FB.” According to Count 2, “Sam was well aware that Jonathan’s
directing the transferring of the assets of Passover FB to Lasko Getaways
would constitute corporate waste of Passover FB’s assets and Jonathan’s
breach of fiduciary duty to Passover FB.” Nonetheless, “Sam encouraged
Jonathan to form Lasko Getaways and to convert the assets of Passover
FB . . . to assets of Lasko Getaways by emphasizing to Jonathan that Sam
[had] founded Lasko Getaways almost thirty (30) years prior to December
1, 2017, and only the Lasko family should own and operate the Passover
business that had been continuously owned by Passover FB since 2010.”
In seven paragraphs, Count 2 described the acts that assisted
Jonathan’s breach of fiduciary duty, including “[p]articipating in the
removal of five tractor-trailers and their contents” and “[s]peaking with
clients and potential clients of Passover FB to divert the client’s business
relationship or potential business relationship with Passover FB to Lasko
Getaways.”
4
Count 3
Count 3 alleged that Passover FB had been damaged as a result of
“Arlene’s aiding and abetting Jonathan’s breach of his fiduciary duty to
Passover FB.” According to Count 3, “Arlene knew that Jonathan’s
directing the transferring of the assets of Passover FB to Lasko Getaways
would constitute corporate waste of Passover FB’s assets and Jonathan’s
breach of Jonathan’s fiduciary duty to Passover FB.” Nonetheless, “Arlene
not only encouraged Jonathan to form Lasko Getaways, but actually
formed Lasko Getaways as a Florida limited liability company on December
1, 2017, with the purpose of diverting Passover FB’s assets to Lasko
Getaways.”
In eight paragraphs, the complaint specified acts that assisted
Jonathan’s breach of fiduciary duty to Passover FB, including (1) telling
“vendors, venues, entertainers, professional speakers, Rabbis and other
persons under contract” that Passover FB had changed its name to Lasko
Getaways and that “Lasko Getaways was the proper business entity”
under existing contracts, and (2) diverting revenue due to Passover FB by
endorsing checks payable to Passover FB and directing the proceeds to
Lasko Getaways.
Count 4
Count 4 alleged that Passover FB had been damaged as a result of “Avi’s
aiding and abetting Jonathan’s breach of his fiduciary duty to Passover
FB.” According to Count 4, “Avi knew that Jonathan’s directing the
transferring of the assets of Passover FB to Lasko Getaways and Avi’s
assistance in accomplishing that goal would constitute corporate waste of
Passover FB’s assets and Jonathan’s breach of Jonathan’s fiduciary duty
to Passover FB.”
In five paragraphs, the complaint described conduct of Avi that assisted
Jonathan’s breach of fiduciary duty to Passover FB, including assisting
Sam in removing five tractor-trailers filled with items and equipment
owned by Passover FB and helping in the transfer of Passsover FB’s office
equipment to the possession of Lasko Getaways.
Count 5
Count 5 alleged that Lasko Getaways, acting through its members and
the Lasko Family, “wrongfully asserted dominion and control and has
thereafter continuously asserted dominion and control over all of the
above-described assets of Passover FB, to the exclusion of Passover FB.”
5
The alleged acts constituting conversion included “[d]irecting all revenue
prepaid and/or derived from the 2018 and subsequent Passover Events to
be paid to Lasko Getaways and not to Passover FB” and “[t]ransferring
possession, ownership and/or control of all tangible and intangible
personal property of Passover FB from Passover to Lasko Getaways.”
Final Order Dismissing the Fourth Amended Complaint
The circuit court granted the Lasko Defendants’ motion to dismiss the
Fourth Amended Complaint. The court dismissed Count 1 with prejudice,
reasoning that the allegations were “devoid of sufficient factual support to
put Jonathan Lasko on notice of the specific duty he purportedly owed to
Passover FB” and that “the nexus between the alleged conduct attributable
to Jonathan Lasko and the consequent damage to Passover FB is unclear
and speculative.”
The court also dismissed Counts 2, 3, and 4 with prejudice, concluding
that those counts suffered from the same deficiencies as Count 1 “because
the allegations do not identify conduct engaged [in] by Jonathan Lasko
that constitutes a breach of a specific fiduciary duty.” The court also
reasoned that Counts 2, 3, and 4 were “bereft of facts explaining the
manner of substantial assistance [or] encouragement” undertaken by
Sam, Arlene, and Avi in support of Jonathan’s purported breaches. Also,
the court reasoned that the complaint referred to actions undertaken by
the Lasko family without identifying which member of the Lasko family
engaged in which specific conduct, effectively commingling the allegations
such that the court could not “attribute any of the acts to any of the
Defendants.”
Finally, the court dismissed Count 5 with prejudice, reasoning that: (1)
Count 5 did not “adequately plead facts delineating how Lasko Getaways
wrongfully exercised dominion and control over the property” described in
the complaint; (2) there was “no allegation that Passover FB owned the
assets” outlined in the complaint; (3) Count 5 described “generically and
in overbroad terms” the assets allegedly converted, including business
relationships and goodwill, and there did not “appear to be any state
appellate cases holding that goodwill can be a definitive subject of
conversion”; and (4) Count 5’s “inclusion of cash or cash equivalents into
the laundry list of converted assets” was insufficient because there were
no allegations that the cash was capable of identification.
6
Standard of Review
A ruling on a motion to dismiss for failure to state a cause of action is
reviewed de novo. Regis Ins. Co. v. Miami Mgmt., Inc.,
902 So. 2d 966, 968
(Fla. 4th DCA 2005). “To state a cause of action, a complaint must allege
sufficient ultimate facts to show that the pleader is entitled to relief.”
Samuels v. King Motor Co. of Fort Lauderdale,
782 So. 2d 489, 495 (Fla.
4th DCA 2001) (internal quotation marks omitted).
“In reviewing an order granting a motion to dismiss, this court’s gaze is
limited to the four corners of the complaint.” Goodall v. Whispering Woods
Ctr., LLC,
990 So. 2d 695, 697 (Fla. 4th DCA 2008) (internal quotation
marks omitted). The facts alleged in the complaint and its exhibits must
be accepted as true, and all reasonable inferences must be drawn in favor
of the pleader. Taylor v. City of Riviera Beach,
801 So. 2d 259, 262 (Fla.
4th DCA 2001). We view the allegations of the complaint in the light most
favorable to the nonmoving party. Bell v. Indian River Mem’l Hosp.,
778
So. 2d 1030, 1032 (Fla. 4th DCA 2001).
The Fiduciary Duties of Officers and Directors of a Corporation
“The elements of a claim for breach of fiduciary duty are: the existence
of a fiduciary duty, and the breach of that duty such that it is the
proximate cause of the plaintiff’s damages.” Gracey v. Eaker,
837 So. 2d
348, 353 (Fla. 2002).
“Officers and directors of a corporation are liable for damages to the
corporation which result from a breach of their trust, a violation of
authority or neglect of duty.” Flight Equip. & Eng’g Corp. v. Shelton,
103
So. 2d 615, 627 (Fla. 1958). This liability derives from the common law
rule that “every agent is responsible to his principal for such acts which
result in damage to the principal.”
Id.
Corporate law recognizes two fundamental fiduciary duties: the duty of
care and the duty of loyalty. In re Orchard Enters., Inc. Stockholder Litig.,
88 A.3d 1, 32 (Del. Ch. 2014). 1 “These duties differ in nature and content,
though they doubtless intersect and overlap.” Omnibank of Mantee v.
United S. Bank,
607 So. 2d 76, 84 (Miss. 1992).
1 Florida courts may look to the law of Delaware for guidance in establishing their
own corporate doctrines. Boettcher v. IMC Mortg. Co.,
871 So. 2d 1047, 1052 n.5
(Fla. 2d DCA 2004).
7
Lawyers tend to sling the term “good faith” into a pleading as if it creates
contractual or other duties that form the basis of a lawsuit. For example,
in Hospital Corp. of America v. Florida Medical Center, Inc.,
710 So. 2d 573,
575 (Fla. 4th DCA 1998), we rejected the argument that a breach of
contract could arise from an implied duty of good faith; we observed that
“a duty of good faith must relate to the performance of an express term of
the contract and is not an abstract and independent term of
a contract which may be asserted as a source of breach when all other
terms have been performed pursuant to the contract requirements.”
Within the law on fiduciary duties, the application of “good faith” is also
limited and is best viewed as being subsumed within the duty of loyalty.
“[A]lthough good faith may be described colloquially as part of a ‘triad’
of fiduciary duties that includes the duties of care and loyalty, the
obligation to act in good faith does not establish an independent fiduciary
duty that stands on the same footing as the duties of care and loyalty.”
Stone ex rel. AmSouth Bancorporation v. Ritter,
911 A.2d 362, 370 (Del.
2006) (footnote omitted). The duty to act in good faith is a subsidiary
element of the duty of loyalty.
Id.
The duty of care is the requirement to “use that amount of care which
ordinarily careful and prudent men would use in similar circumstances,
and consider all material information reasonably available in making
business decisions,” with alleged breaches giving rise to liability only if the
actions are grossly negligent. In re Walt Disney Co. Derivative Litig.,
907
A.2d 693, 749 (Del. Ch. 2005) (“Disney I”) (footnote and internal quotation
marks omitted). “A good faith erroneous judgment . . . implicates the duty
of care rather than the duty of loyalty.” Zirn v. VLI Corp.,
681 A.2d 1050,
1062 (Del. 1996).
“Essentially, the duty of loyalty mandates that the best interest of the
corporation and its shareholders takes precedence over any interest
possessed by a director, officer or controlling shareholder and not shared
by the stockholders generally.” Cede & Co. v. Technicolor, Inc.,
634 A.2d
345, 361 (Del. 1993). As the Fifth District has explained, “[c]orporate
directors and officers owe a fiduciary obligation to the corporation and its
shareholders and must act in good faith and in the best interest of the
corporation.” Cohen v. Hattaway,
595 So. 2d 105, 107 (Fla. 5th DCA
1992).
Fiduciary obligors may not “either directly or indirectly, in their
dealings on behalf of the fiduciary beneficiary . . . , make any profit or
acquire any other personal benefit or advantage, not also enjoyed by the
8
fiduciary beneficiary, and if they do, they may be compelled to account to
the beneficiary in an appropriate action.”
Id. “If a fiduciary obligor
acquires in opposition to the corporation, property in which the
corporation has an interest or tangible expectancy or which is essential to
its existence[,] he violates the doctrine of corporate opportunity.”
Id. at
108 (internal quotation marks omitted).
“In short, Florida courts have recognized that corporate officers and
directors owe both a duty of loyalty and a duty of care to the corporation
that they serve.” McCoy v. Durden,
155 So. 3d 399, 403 (Fla. 1st DCA
2014).
In the context of a closely-held corporation, we have held that a plaintiff
shareholder was required to bring a derivative action, rather than a direct
action, to pursue his cause of action for breach of fiduciary duty against
the majority shareholders who allegedly opened a competing business and
diverted assets to the new business, as the allegations would affect the
relative value of all the shares owned by all the shareholders. See Karten
v. Woltin,
23 So. 3d 839, 841 (Fla. 4th DCA 2009).
Still, a former agent “is free to compete against a former employer
(absent a noncompetition agreement to the contrary).” Harllee v. Prof'l
Serv. Indus., Inc.,
619 So. 2d 298, 300 (Fla. 3d DCA 1992). After the
employment terminates, in the absence of a restrictive agreement, the
agent can properly compete with the principal as to matters for which the
agent has been employed. Restatement (Second) of Agency § 393 cmt. e
(Am. L. Inst. 1958).
An agent does not violate the duty of loyalty by merely organizing a
corporation to carry on a rival business after the agent’s employment ends.
Fish v. Adams,
401 So. 2d 843, 845 (Fla. 5th DCA 1981). Mere preparation
to open a competing business, such as obtaining a bank account and
acquiring office space, does not violate the duty of loyalty. Harllee, 619
So. 2d at 300. “However, an employee may not engage in disloyal acts in
anticipation of his future competition, such as using confidential
information acquired during the course of his employment or soliciting
customers and other employees prior to the end of his employment.”
Furmanite Am., Inc. v. T.D. Williamson, Inc.,
506 F. Supp. 2d 1134, 1149
(M.D. Fla. 2007).
9
Count 1 of the Complaint Stated a Cause of Action for Breach of
Fiduciary Duty against Jonathan Lasko
The Fourth Amended Complaint stated a cause of action for breach of
fiduciary duty against Jonathan Lasko. The complaint alleged each
element of breach of fiduciary duty and alleged sufficient ultimate facts to
show Taubenfeld’s entitlement to relief on Passover FB’s behalf.
First, Taubenfeld alleged that Jonathan owed a fiduciary duty as the
“sole operating officer” of Passover FB. Second, Taubenfeld alleged that
Lasko breached his fiduciary duty to Passover FB by, among other things,
mounting a takeover of the company, diverting Passover FB’s business
relationships and revenues to a competitor (Lasko Getaways), and
executing documents to transfer Passover FB’s property to Lasko
Getaways. Third, Taubenfeld alleged that Jonathan’s breaches damaged
Passover FB by causing its assets to be wasted and dissipated to a nominal
value. Thus, because the complaint alleged sufficient facts constituting a
breach of fiduciary duty, the trial court erred in dismissing this count.
We reject the Lasko Defendants’ argument that Jonathan was a former
officer who no longer owed a fiduciary duty to Passover FB. This argument
was not raised in their motion to dismiss. Nor was it a basis for the trial
court’s ruling. On the merits, this argument relies upon a strained
interpretation of the Fourth Amended Complaint—namely, that Jonathan
“stopped being Passover FB’s officer on December 1, 2017.” Viewing the
pleading in the light most favorable to Taubenfeld, the complaint alleged
that Jonathan was an operating officer of Passover FB at the time he
performed disloyal acts—not a former officer free to compete against
Passover FB. Nowhere does the complaint allege that Jonathan resigned
his position as an officer of Passover FB.
We also reject the circuit court’s conclusion that the allegations of
Count 1 were “devoid of sufficient factual support.” We have found no
authority for the proposition that a complaint must plead a breach of a
fiduciary duty with heightened specificity to state a cause of action. Cf.
Fla. R. Civ. P. 1.120(b) (providing that in “all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated
with such particularity as the circumstances may permit”); Hembd v.
Dauria,
859 So. 2d 1238, 1239 (Fla. 4th DCA 2003) (observing that Florida
law requires fraud to “be pled with precision”).
Even assuming the existence of such an elevated pleading requirement,
it was satisfied in this case. Each of Jonathan’s alleged actions in Count
1 set forth the specific fiduciary duties (e.g., duty of loyalty and duty of
10
care) that were allegedly breached by the conduct at issue. Although the
duty of loyalty and the duty of care are separate duties, the same conduct
can violate both duties—in other words, conduct can be both disloyal to
the corporation and imprudent from the perspective of the corporation.
See Disney I,
907 A.2d at 746 n.402 (“[A]t its core, the duty of loyalty is
just a bet that some situations are likely to lead to careless or imprudent
transactions for the corporation, which is to say that the duty of care is a
motivating concern for the duty of loyalty. Here again the duties overlap.”)
(quoting Sean J. Griffith, Good Faith Business Judgment: A Theory of
Rhetoric in Corporate Law Jurisprudence, 55 DUKE L.J. 1, 43 (2005)).
Contrary to the circuit court’s conclusion, the allegations in Count 1
were not conclusory. Rather than being “unclear and speculative,” there
is an obvious nexus between Jonathan’s alleged conduct (diverting all of
Passover FB’s business and property to a newly-formed competitor) and
the alleged damage to Passover FB (diminishment of the corporation’s
value).
Counts 2, 3, and 4 of the Fourth Amended Complaint Each Stated a
Cause of Action for Aiding and Abetting Jonathan Lasko’s Breach
of Fiduciary Duty
Taubenfeld argues that the Fourth Amended Complaint contained
sufficient ultimate facts to establish each element of aiding and abetting
Jonathan’s breach of fiduciary duty. Taubenfeld also points out that the
pleading satisfies Florida Rule of Civil Procedure 1.110(f) by setting forth
separate counts against Sam, Arlene, and Avi, and that specific conduct
is alleged against each of them.
Relevant Law
To state a cause of action for aiding and abetting the breach of a
fiduciary duty, a plaintiff must plead facts establishing: “1) a fiduciary duty
on the part of a primary wrongdoer; 2) a breach of that fiduciary duty; 3)
knowledge of the breach by the alleged aider and abettor; and 4) the aider
and abettor’s substantial assistance or encouragement of the wrongdoing.”
Fonseca v. Taverna Imps., Inc.,
212 So. 3d 431, 442 (Fla. 3d DCA 2017).
Each claim founded upon a separate transaction or occurrence shall be
stated in a separate count. Fla. R. Civ. P. 1.110(f). Commingling various
claims against all defendants together may “warrant dismissal of a
complaint.” Collado v. Baroukh,
226 So. 3d 924, 927 (Fla. 4th DCA 2017).
11
This Case
Here, the Fourth Amended Complaint stated a cause of action for aiding
and abetting breach of fiduciary duty against Sam, Arlene, and Avi. The
complaint alleged each element of aiding and abetting breach of fiduciary
duty and alleged sufficient ultimate facts to show that Taubenfeld was
entitled to relief as a shareholder of Passover FB.
For the reasons discussed above, the complaint alleged ultimate facts
establishing the first two elements of aiding and abetting a fiduciary duty—
namely, a fiduciary duty on the part of Jonathan and a breach of that
fiduciary duty.
As to the third element, the complaint alleged that Sam, Arlene, and
Avi all knew that Jonathan’s directing the transfer of Passover FB assets
to Lasko Getaways would constitute a breach of Jonathan’s fiduciary duty
to Passover FB.
As to the fourth element, the complaint alleged that Sam, Arlene, and
Avi all assisted Jonathan’s breach of fiduciary duty by, among other
things, diverting clients and potential clients from Passover FB to Lasko
Getaways. Even though some of the allegations of the complaint may have
been conclusory or may have been allegations of innocent conduct, the
complaint—taken as a whole—alleged sufficient ultimate facts against
each of Sam, Arlene, and Avi on the element of substantial assistance.
Contrary to the trial court’s conclusion, the allegations against Sam,
Arlene, and Avi were not commingled. The complaint set forth separate
counts for aiding and abetting breach of fiduciary duty against each of
them. Although the complaint sometimes referred to the Appellees
collectively as the “Lasko Family,” the complaint alleged specific conduct
against each of Sam, Arlene, and Avi within each count. As just one
example, the complaint alleged that Arlene held herself out as vice
president of Passover FB and fraudulently endorsed checks payable to
Passover FB.
The circuit court erred in dismissing Counts 2, 3, and 4 of the Fourth
Amended Complaint for failure to state a cause of action.
The Fourth Amended Complaint Stated a Cause of Action for
Conversion as to Some of the Property Described in the Complaint
The circuit court erred in dismissing the entirety of Count 5 of the
Fourth Amended Complaint, which stated a cause of action for conversion.
12
Although some items of the claimed damages are not recoverable in
conversion, other categories of damages properly fall under the allegation
that “the Lasko Family transferred Passover FB’s Assets to Lasko
Getaways, wrongfully depriving Passover FB of its property.”
Relevant Law
“Conversion is an act of dominion wrongfully asserted over another’s
property inconsistent with his ownership therein.” Warshall v. Price,
629
So. 2d 903, 904 (Fla. 4th DCA 1993) (internal quotation marks omitted).
“[T]o state a claim for conversion, one must allege facts sufficient to show
ownership of the subject property and facts that the other party wrongfully
asserted dominion over that property.” Edwards v. Landsman,
51 So. 3d
1208, 1213 (Fla. 4th DCA 2011). The essence of an action for conversion
is “not the acquisition of the property of the wrongdoer, but the wrongful
deprivation of a person of property to the possession of which he is
entitled.” Star Fruit Co. v. Eagle Lake Growers, Inc.,
33 So. 2d 858, 860
(Fla. 1948).
Money can be the subject of conversion “so long as it consists of specific
money capable of identification.” Belford Trucking Co. v. Zagar,
243 So. 2d
646, 648 (Fla. 4th DCA 1970). To be a proper subject of conversion, “there
must be an obligation to keep intact or deliver the specific money in
question, so that such money can be identified.”
Id.
“Historically, it was only tangible property that could be converted.” Joe
Hand Promotions, Inc. v. Jacobson,
874 F. Supp. 2d 1010, 1017 (D. Or.
2012). Florida courts now recognize, however, that “[a]ctions for
conversion may properly be brought for a wrongful taking over of
intangible interests in a business venture.” In re Estate of Corbin,
391 So.
2d 731, 732 (Fla. 3d DCA 1980) (footnote omitted). “Recovery properly
extends to the good will of a business.”
Id. at 733.
“Goodwill is property of an intangible nature commonly defined as the
expectation of continued public patronage.” Thompson v. Thompson,
576
So. 2d 267, 269 (Fla. 1991). “Because good will inseparably adheres to a
business and its assets, it cannot be the subject of conversion unless the
business or its assets are also the subject of conversion.” Weinberg v.
Wallace,
442 S.E.2d 211, 213 (S.C. Ct. App. 1994).
This court has held that a confidential patient list is a proper subject
of a cause of action for conversion. Warshall,
629 So. 2d at 905. However,
the alleged conversion of the patient list in Warshall occurred prior to June
30, 1988, which was before the enactment of Florida’s Uniform Trade
13
Secrets Act.
Id. at 904; Ch. 88-254, § 8, Laws of Fla. (setting forth an
effective date of October 1, 1988).
Florida’s Uniform Trade Secrets Act (“FUTSA”) displaces “conflicting
tort, restitutory, and other law of this state providing civil remedies for
misappropriation of a trade secret.” § 688.008(1), Fla. Stat. (2017).
However, this preemption does not affect: “(a) Contractual remedies,
whether or not based upon misappropriation of a trade secret; (b) Other
civil remedies that are not based upon misappropriation of a trade secret;
or (c) Criminal remedies, whether or not based upon misappropriation of
a trade secret.” § 688.008(2), Fla. Stat. (2017). Thus, as a general rule,
“other torts involving the same underlying factual allegations as a claim
for trade secret misappropriation will be preempted by FUTSA.” New
Lenox Indus., Inc. v. Fenton,
510 F. Supp. 2d 893, 908 (M.D. Fla. 2007)
(applying Florida law).
This Case
Here, the Fourth Amended Complaint stated a cause of action for
conversion as to some of Passover FB’s assets. The complaint alleged
sufficient ultimate facts to show Passover FB’s property was converted and
Lakso Getaway’s wrongful dominion over that property.
Florida law recognizes that an action for conversion may be based upon
a wrongful takeover of the intangible interests in a business venture. In
re Estate of Corbin,
391 So. 2d at 732. Moreover, recovery properly extends
to the goodwill of the business.
Id. at 733. Thus, goodwill can be the
subject of conversion so long as the business or its assets are also the
subject of conversion. 2 Here, the complaint adequately alleged that Lasko
Getaways wrongfully took over both tangible and intangible interests in
Passover FB’s business venture, including intellectual property consisting
of websites.
Many of the assets identified in the complaint are the proper subject of
a conversion claim. Notably, the complaint states a claim for conversion
of hard assets, including five tractor-trailers and their contents. Contrary
to the Lasko Defendants’ suggestion, the allegations of the complaint were
not too imprecise to state a cause of action. Count 5 explicitly alleged that
Lasko Getaways “wrongfully asserted dominion and control” of
specifically-identified assets of Passover FB, including the five tractor-
trailers and their contents. Count 5 also alleged that Lasko Getaways,
2We do not reach the issue of whether a claim for conversion of goodwill as a
separate asset is cognizable under Florida law.
14
through its agents, transferred “possession, ownership and/or control” of
Passover FB’s tangible personal property to Lasko Getaways. Viewed in
the light most favorable to Taubenfeld, the complaint alleged facts
sufficient to show ownership of the tangible property and the defendant’s
wrongful assertion of dominion over it. No more detail was required.
We agree with the Lasko Defendants that Taubenfeld failed to state a
cause of action for conversion for some of the property in the complaint.
The complaint alleged the conversion of cash, but it failed to allege any
specific money capable of identification. Additionally, to the extent the
conversion claim encompasses a claim for misappropriation of trade
secrets, such a claim is preempted by the FUTSA. Also, we have found no
authority to suggest that a business or contractual relationship can be the
object of a conversion. We affirm the dismissal of the complaint as it
applies to the matters contained in this paragraph.
Because the Fourth Amended Complaint stated a cause of action for
conversion as to some of Passover FB’s assets, we reverse the dismissal of
Count 5.
The Circuit Court Erred in Dismissing with Prejudice the Second
Amended Complaint’s Claims for Aiding and Abetting a Conversion
Count 5 of the Second Amended Complaint asserted a claim against
Jonathan, Sam, Arlene, and Avi for aiding and abetting Lasko Getaways’
conversion of Passover FB’s property. The circuit court dismissed that
claim with prejudice on the ground that “Florida law does not recognize a
cause of action for aiding and abetting a conversion.”
Relevant Law
“[T]he majority of case law, including that in Florida, recognizes a cause
of action for aiding and abetting common law torts, such as breach of
fiduciary duty.” AmeriFirst Bank v. Bomar,
757 F. Supp. 1365, 1380 (S.D.
Fla. 1991); see also Ft. Myers Dev. Corp. v. J.W. McWilliams Co.,
122 So.
264, 268 (Fla. 1929) (recognizing that liability may attach for “aiders and
abettors of fraudulent promoters of corporations”); Fonseca, 212 So. 3d at
442 (“Florida law recognizes a cause of action for aiding and abetting the
breach of a fiduciary duty.”); Roos v. Morrison,
913 So. 2d 59, 68 n.1 (Fla.
1st DCA 2005) (“Florida courts recognize the ‘acting in concert’ basis for
joint and several liability.”).
To state a claim for aiding and abetting a tort in Florida, a plaintiff must
allege: “(1) an underlying violation on the part of the primary wrongdoer;
15
(2) knowledge of the underlying violation by the alleged aider and abetter;
and (3) the rendering of substantial assistance in committing the
wrongdoing by the alleged aider and abettor.” Lawrence v. Bank of Am.,
N.A.,
455 Fed. Appx. 904, 906 (11th Cir. 2012) (applying Florida law).
Likewise, the Second Restatement of Torts provides that: “For harm
resulting to a third person from the tortious conduct of another, one is
subject to liability if he . . . (b) knows that the other’s conduct constitutes
a breach of duty and gives substantial assistance or encouragement to the
other so to conduct himself[.]” Restatement (Second) of Torts § 876 (Am. L.
Inst. 1979).
No Florida case directly holds that a claim for aiding and abetting
conversion does or does not exist in Florida.
The Florida state court cases cited by Taubenfeld do not explicitly
address the viability of a claim for aiding and abetting conversion under
Florida law. See, e.g., Chereton v. Lawrence Warehouse Co.,
92 So. 2d 410,
410–11 (Fla. 1957) (affirming judgment upon jury verdict in favor of the
plaintiff where the complaint asserted claims for conversion or, in the
alternative, aiding and abetting conversion); Bowers v. Allez,
165 So. 3d
710, 711 (Fla. 4th DCA 2015) (affirming default judgment where one of the
plaintiff’s claims was aiding and abetting conversion).
Still, the Florida Supreme Court has recognized that codefendants can
be held jointly liable for conversion. See Wilson Cypress Co. v. Logan,
162
So. 489, 490 (Fla. 1935). And, in Lesti v. Wells Fargo Bank, N.A.,
960 F.
Supp. 2d 1311, 1325–26 (M.D. Fla. 2013), the federal district court held
that the plaintiffs had sufficiently pleaded a claim under Florida law for
aiding and abetting conversion.
This Case
Because Florida recognizes aiding and abetting liability for common law
torts, it follows that Florida recognizes a claim for aiding and abetting
conversion. This conclusion is consistent with the approach taken in the
Second Restatement of Torts, which recognizes liability for aiding and
abetting “the tortious conduct of another,” without distinguishing among
different underlying torts. On this issue, we see no logical reason to treat
conversion differently from any other common law tort. Therefore, the trial
court erred in dismissing Count 5 in the Second Amended Complaint on
16
the sole ground that Florida does not recognize a claim for aiding and
abetting conversion. 3
Conclusion
We have considered the other arguments raised in support of affirming
dismissal and find them to be without merit.
We affirm the circuit court’s dismissal of cash, misappropriation of
trade secrets, and the loss of business or contractual relationships as
items of damage in the conversion count. We otherwise reverse the orders
of dismissal and remand for further proceedings consistent with this
opinion.
Affirmed in part, reversed in part, and remanded.
CONNER, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3 We decline to reach the Lasko Defendants’ argument that dismissal of
Taubenfeld’s claims for aiding and abetting conversion was appropriate because
agents cannot aid and abet their principal under the intra-corporate conspiracy
doctrine. This argument was not raised in their motions to dismiss the Second
or Fourth Amended Complaint. Nor did the trial court ever rule on this argument.
For example, the trial court did not address issues concerning whether the intra-
corporate conspiracy doctrine should be extended to claims for aiding and
abetting or whether the personal stake exception is applicable under the facts
alleged in the complaint. See Mancinelli v. Davis,
217 So. 3d 1034, 1038 (Fla.
4th DCA 2017) (discussing the intra-corporate conspiracy doctrine); Weisman v.
S. Wine & Spirits of Am., Inc.,
297 So. 3d 646, 653 (Fla. 4th DCA 2020) (discussing
the personal stake exception to intra-corporate conspiracy doctrine); see also
Janken v. GM Hughes Elecs.,
53 Cal. Rptr. 2d 741, 755 (Cal. Ct. App. 1996)
(discussing the intra-corporate conspiracy doctrine and concluding that “[s]imilar
reasoning applies to aiding and abetting”); but see Miller v. York Risk Servs. Grp.,
No. 2:13-CV-1419 JWS,
2013 WL 6442764, at *5 (D. Ariz. Dec. 9, 2013)
(distinguishing between conspiracy and aiding-and-abetting claims, and
explaining that the defendant did not “cite any authority to convince the court
that an agent cannot aid and abet his principal in the commission of a tort”).
17
