Filing # 46261957 E-Filed 09/09/2016 02:54:34 PM IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA. PHILLIP EDDY JR,, individually, Plaintiff v. Case No. 2016-CA-1436-NC SARASOTA MILITARY ACADEMY, INC,, a Florida non-profit corporation, Defendant, MOTION TO DISMISS AMENDED COMPLAINT Defendant, Sarasota Military Academy, Inc., (“SMA”) hereby files this Motion to Dismiss the Amended Complaint filed by Plaintif, Phillip Eddy, Jr. (“Eddy”) and states: INTRODUCTION Eddy is a former employee of SMA, having served for a time as the Head of School of the Middle Schoo! operated by SMA. Bddy alleges he was hired in “early 2014” (Complaint § 7), and was terminated on July 15, 2015 (Complaint € 44). The Complaint includes five counts; Count I - Fraud in the Inducement, Count II - Negligent Misrepresentation, Count II ~ Fraudulent Concealment, Count IV ~ Breach of Oral Employment Agreement, and Count V — Liberty and Property Interest Violations. Each Count of the Complaint should be dismissed because: a Asto Counts I, I, and Hl, Eddy fails to allege fraud with sufficient particular Filed 09/09/2016 03:07 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLb. As to Counts I I and It, Eddy cannot state a cause of action based on the allegations ofa “long term” employment relationship because employment contracts lacking a definite duration are terminable at will; ¢, Astoall Counts, Eddy fails to allege that he was anything other than an at-will employee; 4. As toll Counts, Eddy fils to allege various essential facts without which SMA. cannot formulate a meaningful response; e, As to Count IV, Eddy fails to sufficiently allege the terms of the alleged Oral Contract of Employment; £. Astoall Counts, the document attached to the Complaint as Ex! Ais repugnant to the allegations of the Complaint; 2. Astoall Counts, the allegations of the Complaint are internally inconsistent; fh, As to Count V, Eddy fails to allege a legitimate liberty or property interest because he ‘was an at-will employee; As to Count V, Hiddy fails to attach a document required to be attached under Rule 1.130 (a) Florida Rules of Civil Procedure, ARGUME! 1, Counts I, H, an IL are all required to be alleged in accord with the standard of Rule 1,120(b) Florida Rules of Civil Procedure, which requires that “the circumstances constituting fraud... be stated with such particularity asthe circumstances may permit.” ‘This requirement is applicable to Count If for Negligent Mistepresentation, in addition tothe fraud ‘counts, Morgan v. W.R. Grace, 779 So, 2d 503 (Fla. 24 DCA 2008),2, Baldy doesnot allege any ofthe following with the required particularity: when ‘many of the misrepresenations were made, what al ofthe terms of the “promised” employment contract would be, when ke began his employment at SMA, what were the tems of his employment when he first arrived at SMA, what he was making in salary before the “promised” 10% increase in salary, when the 2014/2015 school year began and ended, or the duration of the alleged “ong fem relationship” that was alleged promised, Further, dy alleges in Count V that he was terminated on July 15,2015, but that allegation isnot incorporated into Counts I I, and TIT, 3. Moreover, even without the specificity requirement of Rule 1.120(b), the essential facts underlying al of the claims are not alleged with enough detail or clarity so as to allow SMA to formulate a meaningfil and accurate response, These fac include when Eddy was hired, his salary when hired, whether he alleges he had a written agreement when first hired, and the beginning and ending dats ofthe 2014/2015 schoo! year. 4, Biddy alleges he was “promised” an employment contact forthe 2014-2015 school year. However, the Employee Handbook attached to the Complaint as Exhibit A states ‘unambiguously tat “Employment atthe Academy remains at-will unles otherwise aoreed in vwiting bythe Board President” (Emphasis added), There i no allegation in the Complaint that there exists such an agreement in writing with the Board President that would serve to change the twill nature of his employment. Therefore, tothe extent that any of Hldy’s claims suggest that he was anything other than an at-will employes, Exhibit Ais dioctly repugnant to that suggestion, Hamy Pepper & Associates v, Lasseter, 247 So, 2d 736 (Fla 24 DCA 1971), (pleading objectionable where allegations inconsistent with exhibit)8. Biddy fails to allege the essential terms of the claimed oral contract that forms the basis of Count IV. For example, Fddy fails to allege the start date, end date or salary. He alleges only that the Employee Handbook attached to the Complaint as Exhibit A was incorporated into his oral contract and that certain provisions of the Employee Handbook were breached, But the Employee Handbook states on the very first page that it “is not employment (emphasis added). As such, the policies therein cannot form the basis of a breach of contract, action. Ata minimum, the Employee Handbook is repugnant to the Oral Contract allegations, Harry Pepper, 247 So. 2d 736, 9. At Paragraph 36 in Count IV Bddy alleges that SMA beached its “implied contractual obligation o provide reasonable advance notice of termination without cause when ‘ending the relationship.” Yet, Eddy fails to allege when he first learned he may be terminated (he alleges he received Notice of Termination on June 4, 2015), fails to allege in Count IV when he was terminated (he alleges elsewhere it was July 15, 2015), and fils to allege the date through which he was compensated, all of which are necessary for SMA to form a meaningful response to Count IV. 10. Bdy had no liberty or property interest in his at-will employment. The Due Process Clause of the Fourteenth Amendment of the U.S. Constitution entitles a person to procedural due process when a protected property interest is a stake, See Bishop v. Wood, 426 USS. 341, 345 (1976). There is no constitutionally protected property interest when the employee serves a the will of the employer with no guaranteed employment. Bishop v. Wood, 426 U.S. al 343-47; Board of Regents v, Roth, 408 U.S. 564, 577 (1972) (“To have a property interest in a benefit, a person clearly must... have more than a unilateral expestation of it, He must, instead, have a legitimate claim of entitlement to it”).1. Florida state courts have similarly held that there is no constitutional right to due process if there is no right to, or guarantee of, continued employment. See, c.g. Douglas, 644 So. 2d 1368 (Fla, Sth DCA 1994) (discussing that there is no protected property interest in continued employment where the employee is subject to "at-will" discharge); Jones v, Miami-Dade County, 816 So, 2d 824 (Fla, 34 DCA 2002), CONCLUSION For the above-stated reasons Counts I-V of the Complaint should be dismissed. CERTIFICATE OF SERVICE hereby certify that on September th, 2016, I electronically filed the foregoing with the Clerk of Court using the Florida Courts E-Filing Portal which. send anotice of electronic filing to Bradley P. Rothman, Esq., Weldon & Rothman, PL. 7935 Airport-Pulling Road N, Suite 205, ‘Naples, FL 34109, brothman@weldonrothman,com, \D BRUNING, P. DAVID A, WALLACE, ). Florida Bar No, 0608386 783 South Orange Ave., Suite 300 Sarasota, FL 34236 ‘Telephone: 941 556.9030 Primary Email: dwallace@bentleyandbruning.com Secondary Fail: osulivan@bentleyandbruning.com Atlomey for Defendant SARASOTA MILITARY ACADEMY, INC.