Craig et al v. Kropp et al

Filing 33

ORDER denying 11 Defendant Sherri Kropp's Motion to Dismiss; denying 14 Defendant Dylan Kropp's Motion to Dismiss ; denying 21 Defendant Roman Kropp's Motion to Dismiss. Defendants shall file an Answer to the Complaint (Doc. 2) within fourteen (14) days of this Opinion and Order Signed by Judge Sheri Polster Chappell on 6/9/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KATHRYN T. CRAIG and KOR ISLAND
PROVISIONS, LLC,
Plaintiffs,
v.

Case No: 2:17-cv-180-FtM-99CM

ROMAN KROPP, SHERRI KROPP,
and DYLAN KROPP,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendants’ Motions to Dismiss (Docs. 11,
14, 21) filed on April 14, 18, and 28, 2017, to which Plaintiffs responded (Docs. 24, 26,
31). For the reasons set forth below, the motions are denied.
Background
On March 1, 2017, Plaintiffs Kathryn T. Craig (Craig) and KOR Island Provisions,
LLC (KOR) filed an eight-count Complaint, alleging various state-law tort claims and
damages stemming from a business venture gone bad between the parties. The case
was removed to this Court on March 31, 2017, based on diversity jurisdiction. (Doc. 2).
Defendants Roman and Sherri Kropp (“RKropp” and “SKropp”) are husband and wife,

1

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some other site does not affect the opinion of the Court.

and Defendant Dylan Kropp (“DKropp”) is their son (collectively, “Defendants”). Craig is
the sole owner and manager of KOR. (Id. at ¶ 1).
The Complaint alleges the following which the Court accepts as true at the motion
to dismiss stage: In 2010, Craig met and befriended Defendants. In 2011, Craig formed
KOR, a high-end retail furniture and furnishings store in Sanibel Island, Florida. (Doc. 2,
¶ 10). In April 2011, KOR, through Craig, hired RKropp to assist with the opening and
operation of the store. (Id. at ¶ 11). RKropp became a trusted friend to Craig and RKropp
was provided access to the KOR operating account to assist with the store’s operation.
(Id. at ¶ 12). At some point, the retail store closed.
As the retail store was closing, RKropp suggested to Craig that they become
engaged in a real estate business where RKropp would locate suitable properties for
purchase, renovation and re-sale, on Craig’s behalf. (Doc. 1, ¶ 13). As suggested by
RKropp, KOR was maintained and utilized for the purpose of conducting the real estate
business, and Craig provided RKropp with continued access to the KOR account and
authority to conduct real estate deals on behalf of KOR. (Id. at ¶ 14). RKropp was
provided generous bonuses for his efforts, and as additional compensation, Craig allowed
the Kropp family to reside rent fee in one of the properties purportedly purchased for KOR,
661 Cardium Street, Sanibel Island (“661 Cardium”). (Id. at ¶ 15). Over this time, RKropp
and SKropp became confidantes and very close friends of Craig, and Craig considered
them to be like her own family. (Id. at ¶¶ 16, 17).
Craig, through KOR, purchased several investment properties in Costa Rica with
RKropp’s trusted assistance.

(Doc. 1, ¶ 18).

One such property was called “Villa

Santosha.” Craig determined to renovate the “Villa Santosha” property in Costa Rica so

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that it could be used as a luxury rental, and hired RKropp as the project supervisor,
responsible for choosing and hiring the builder, managing and overseeing the work,
handling the finances, and maintaining the records and budget for the renovation. (Id. at
¶ 19). As the renovation progressed and large sums of money were transferred out of
the KOR account by RKropp, Craig became increasingly frustrated as her requests for
information and back-up documentation regarding the cost of the renovation project were
ignored by RKropp. (Id. at ¶ 20).
In late 2016, Craig began looking into the various business and other transactions
that she had entrusted to RKropp. At this time, she found that Defendants had grossly
abused the trust she had reposed in them, including the following:2
a. RKropp falsely represented to Wachovia, n/k/a Wells Fargo that he was
an owner of KOR, and was thereby able to have the account statements
diverted from Craig and sent to his address at 661 Cardium.
b. RKropp falsely represented to Craig that he had purchased the property
at 661 Cardium for KOR. Instead, RKropp had used KOR’s funds to
purchase the property for $325,000, but then wrongfully and willfully
arranged to have it placed in his name.
c. Several years later, while Craig believed the Kropp family was living rent
free in KOR’s property at 661 Cardium, RKropp sold the property for
$473,000, without the knowledge or consent of Craig, and kept the funds
for himself. When Craig learned of the theft and demanded return of the
funds realized by RKropp, he returned only $320,000, thereby
misappropriating $153,000.
d. Without Craig’s knowledge or consent, RKropp and SKropp wrongfully
and willfully utilized the debit card on KOR’s account to pay for their
personal family living expenses, including without limitation: electricity both
for 661 Cardium, and for the home they thereafter rented in Colorado,
paypal, ebay, gas, family travel, substance abuse rehabilitation for RKropp,
cable, telephone, trash service, sewer, Burberry, J Crew, Saks 5th Avenue,
jewelry stores, hardware stores, pharmacies, hair salons, restaurants, and
The Court sets forth the entirety of the allegations as they are important to the Court’s
consideration of the arguments made in the Motions to Dismiss.
2

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itunes. As a result of these unauthorized and unlawful charges, RKropp
and SKropp misappropriated in excess of $265,000.
e. Without Craig’s knowledge or consent, SKropp wrongfully and willfully
utilized KOR’s account to pay the charges on three storage units in her
name for a period of approximately four years, thereby misappropriating
approximately $36,000.
f. Without Craig’s knowledge or consent, RKropp wrongfully and willfully
withdrew or transferred to his personal account(s) from KOR’s account, a
total amount exceeding $820,000.
g. Without Craig's knowledge or consent, DKropp wrongfully and willfully
withdrew or transferred to his personal account(s), from KOR’s account the
sums of $9,000, and $7,000.
h. RKropp falsely represented to Craig he had purchased the first of the
properties in Costa Rica (the “beachfront property”) for KOR. However,
RKropp misrepresented to the legal counsel in Costa Rica and all others
involved in the transaction that he was the purchaser of the property. KOR’s
funds were used for the purchase of the beachfront property, but RKropp
wrongfully and willfully arranged the transaction so that a corporation owned
by RKropp and SKropp took title. Several years later, and before Craig
discovered these fraudulent acts, RKropp transferred title of the beachfront
property to Craig’s son. The nature arid extent of the damages related to
these wrongful acts have not yet been determined.
i. RKropp falsely represented to Craig that the purchase price of the
beachfront property was $1,225,000, when the actual purchase price was
$900,000. After Craig discovered the discrepancy, RKropp falsely advised
Craig that the legal counselor in Costa Rica was holding the excess funds.
These funds remain missing.
j. RKropp falsely represented to Craig that the purchase price of the third
property purchased by him for KOR in Costa Rica was $160,000, when the
actual purchase price was $88,800. The funds relating to this discrepancy
remain missing.
k. RKropp represented to Craig that the renovation to the Villa Santosha
property cost $400,000, but has failed and refused to provide Craig with a
shred of documentation to justify any portion of these charges. Craig has
received credible information that an entirely new luxury home could have
been built in Costa Rica for the amount purportedly paid by RKropp on
behalf of KOR Island for the renovation to the Santosha property.

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l. RKropp falsely represented to Craig that he had purchased a 2000
Mercedes Benz automobile in Costa Rica (license plate no. 450300) for
KOR to be used in conjunction with the properties purchased by KOR.
Instead, RKropp used KOR’s funds to purchase the automobile for $25,000,
but then wrongfully and purposefully arranged to have title placed in his
name.
m. RKropp falsely represented to Craig that he was managing the rental of
Villa Santosha and another of the properties purchased on behalf of KOR,
for KOR, that he had registered the properties with Vacation Rentals By
Owner (VRBO) and Airbnb, and that all rental income was being deposited
into KOR's account. Instead, RKropp wrongfully and willfully arranged for
the rental income to be deposited into his personal account. When Craig
learned of this act of malfeasance and demanded return of all rental income
due KOR, RKropp returned only $15,000, without any proof or accounting
of what was actually misappropriated by him. Craig reasonably believes a
much greater sum was obtained by RKropp for the rental of these
properties.
n. Without Craig’s knowledge or consent, RKropp wrongfully entered into
an agreement with an internet access provider to permit an antenna to be
placed on the roof of the Santosha property for the approximate amount of
$400 per month, and arranged for all such proceeds to be paid into an
account on which he had added his wife, SKropp, as a joint owner. SKropp
thereafter utilized these funds solely for the benefit of her and RKropp.
(Doc. 1, ¶ 21). As a result of these activities, Plaintiffs allege the following claims against
all Defendants: constructive fraud (Count 1), conversion (Count 2), unjust enrichment
(Count 4), money had a received (Count 5), accounting (Count 6), and civil conspiracy
(Count 7); the following claim against RKropp and SKropp only: breach of fiduciary duty
(Count 3); and the following claims against RKropp only: actual fraud (Count 1) and
money lent (Count 8). (Doc. 2). Defendants move to dismiss all claims in the Complaint
except Count 8 for failure to state a claim because the Complaint fails to allege sufficient
facts to establish each claim.

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Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a [c]omplaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Id. at 678. The issue in resolving such a motion is not whether
the non-movant will ultimately prevail, but whether the non-movant is entitled to offer
evidence to support his claims. See id. at 678-79.
“Determining whether a complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Id. at 679 (citations omitted). Although legal conclusions can
provide the framework for a complaint, factual allegations must support all claims. See
id. Based on these allegations, the court will determine whether the plaintiff's pleadings
plausibly give rise to an entitlement to relief. See id. at 678-79. Legal conclusions
couched as factual allegations are not sufficient, nor are unwarranted inferences,
unreasonable conclusions, or arguments. See Twombly, 550 U.S. at 555.
Rule 8 of the Federal Rules of Civil Procedure provides parallel pleading
requirements that also must be satisfied. Under this rule, “a pleading must contain a short
and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “[T]he pleading standard Rule 8 announces does not require ‘detailed
factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfullyharmed-me-accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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Labels, conclusions, and formulaic recitations of the elements of a cause of action are not
sufficient. See id. at 678-79. Mere naked assertions are also inadequate. See id.
Discussion
A. Count 1 – Actual and Constructive Fraud
Although labeled simply “Fraud”, the allegations state claims for actual fraud
against RKropp and constructive fraud against SKropp and DKropp, and alternatively
against RKropp. (Doc. 2, ¶¶ 24-26). With regard to the constructive fraud allegations,
Defendants argue that Count 1 should be dismissed because KOR has failed to allege
that anything illegal, illicit, or wrongful occurred; has failed to allege that SKropp or DKropp
owed it any sort of fiduciary duty; and because there are no allegations that SKropp or
DKropp made any misrepresentations or concealed any information from KOR.
Constructive fraud, unlike actual fraud, does not require a showing of intent or of
a misrepresentation or concealment and thus a claim for constructive fraud need only
meet the liberal pleading requirements of Rule 8. See Wilchombe v. TeeVee Toons, Inc.,
555 F.3d 949, 958-59 (11th Cir.2009); see also Fed. R. Civ. P. 8. Under Florida law3,
constructive fraud occurs “when a duty under a confidential or fiduciary relationship has
been abused or where an unconscionable advantage has been taken.” Levy v. Levy, 862
So. 2d 48, 53 (Fla. 3d DCA 2003). “Fiduciary relationships may be implied in law and
such relationships are premised upon the specific factual situation surrounding the
transaction and the relationship of the parties. Courts have found a fiduciary relationship
implied in law when confidence is reposed by one party and a trust accepted by the other.

Florida’s substantive law governs in this diversity case. LaTorre v. Connecticut Mut.
Life Ins. Co., 38 F.3d 538, 540 (11th Cir. 1994).
3

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To establish a fiduciary relationship, a party must allege some degree of dependency on
one side and some degree of undertaking on the other side to advise, counsel and protect
the weaker party.” Brigham v. Brigham, 11 So. 3d 374, 387 (Fla. 3d DCA 2009) (internal
citations omitted).

Fiduciary relationships are either expressly or impliedly created.

Capital Bank v. MVB, Inc., 644 So. 2d 515, 518-19 (Fla. 3d DCA 1994). When a fiduciary
relationship has not been created by an express agreement, the question of whether the
relationship exists generally depends “upon the specific facts and circumstances
surrounding the relationship of the parties in a transaction in which they are involved.”
Collins v. Countrywide Home Loans, 680 F. Supp. 2d 1287, 1297 (M.D. Fla. 2010)
(quoting Taylor Woodrow Homes Fla., Inc. v. 4/46–A Corp., 850 So. 2d 536, 540 (Fla. 5th
DCA 2003)). Constructive fraud will not lie where the parties are dealing at arm’s length
because there is no duty imposed on either party to protect or benefit the other. Taylor
Woodrow Homes, 850 So. 2d at 541.
Here, the Complaint does not plead that a fiduciary relationship has been created
amongst the parties by an express agreement; rather, Plaintiffs assert that an implied
fiduciary duty exists. The Court finds that Plaintiffs have alleged sufficient facts upon
which a fiduciary relationship may be implied by law. Plaintiffs have plausibly alleged that
Defendants wrongfully used and obtained funds from KOR for their benefit by taking
advantage of the trust she placed in them with KOR funds and its business, differing from
an arms-length business relationship. (Doc. 1, ¶ 23, incorporating the allegations of ¶¶
1-21). And contrary to Defendants’ argument, KOR plausibly alleges that Defendants
unlawfully misappropriated funds from Plaintiffs without their consent or knowledge.

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With regard to the actual fraud allegations against Defendant RKropp only, RKropp
argues that that the Complaint fails to meet the exacting standards set forth in Federal
Rule of Civil Procedure 9, as they are devoid of any reference to the time at which they
false representations and omissions were made and KOR has failed to adequately allege
where the fraudulent representations and omissions occurred. To state a cause of action
for fraud, a party must allege: (1) a false statement concerning a material fact, (2) the
representor’s knowledge that the representation is false, (3) an intention that the
representation induce another to act on it, and (4) consequent injury by the party acting
in reliance on the representation. Gutter v. Wunker, 631 So. 2d 1117, 1118 (Fla. 4th DCA
1994). Federal Rule of Civil Procedure, Rule 9(b) provides: “In all averments of fraud or
mistake, the circumstances constituting fraud or mistake shall be stated with particularity.
Malice, intent, knowledge, and other condition of mind of a person may be averred
generally.” Rule 9(b) is satisfied by a complaint which sets forth: (1) precisely what
statements or omissions were made in what documents or oral representations or what
omissions were made, and (2) the time and place of each such statement and the person
responsible for making (or, in the case of omissions, not making) them, and (3) the content
of such statements and the manner in which they misled the plaintiff, and (4) what the
defendants obtained as a consequence of the fraud. Ziemba v. Cascade Int'l, Inc., 256
F.3d 1194, 1202 (11th Cir. 2001) (citation omitted). The Complaint is essentially required
to identify the “who, what, when, where, and how.” Garfield v. NDC Health Corp., 466
F.3d 1255, 1262 (11th Cir. 2006). “Failure to satisfy Rule 9(b) is a ground for dismissal
of a complaint.” Corsello v. Lincare, Inc., 28 F.3d 1008, 1012 (11th Cir. 2005). Rule 9(b)
does not abrogate the concept of notice pleading. Rather, “[i]n a complaint subject to

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Rule 9(b)’s particularity requirement, plaintiffs retain the dual burden of providing sufficient
particularity as to the fraud while maintaining a sense of brevity and clarity in the drafting
of the claim, in accord with Rule 8.” Wagner v. First Horizon Pharm. Corp., 464 F.3d
1273, 1278 (11th Cir. 2006).
Defendant RKropp’s response in opposition (Doc. 31) only addresses the
constructive fraud claim, not the actual fraud claim. But upon review of the Complaint,
the Court finds that Plaintiffs have properly alleged a claim for actual fraud against RKropp
in compliance with Fed. R. Civ. P. 9. Throughout the sub-paragraphs of paragraph 21,
Plaintiffs detail with particularity the transactions at issue, when they occurred, where,
and their amounts to put RKropp on sufficient notice of the allegations against him at the
pleading stage.
B. Count 2 – Conversion
Count 2 alleges that all Defendants wrongfully converted to their own use and
benefit the funds of KOR, and wrongfully deprived KOR of its property permanently,
incorporating the detailed allegations of paragraph 21.

(Doc. 2, ¶¶ 28-29).

Only

Defendants SKropp and DKropp move to dismiss Count 2, arguing that KOR has failed
to allege any demand for payment was made upon them. Additionally, Defendants argue
that KOR fails to allege a specific amount of money which was converted and fails to
plausibly allege that their actions were “unauthorized.” Plaintiffs respond that it has
alleged a civil conspiracy among the Defendants to wrongfully and willfully convert funds
to their own use without Plaintiffs’ consent, and they have alleged that they demanded
return of the funds by RKropp but that he did not return the entirety of the funds. (Doc. 2,

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¶ 21(c), (m)). Therefore, Plaintiffs argue that additional demands for return would have
been futile.
Under Florida law, the elements of conversion are: “(1) an act of dominion
wrongfully asserted; (2) over another’s property; and (3) inconsistent with his ownership
therein.” Joe Hand Promotions, Inc. v. Hart, 2012 WL 1289731, *2-3 (S.D. Fla. Apr. 16,
2012) (citing Special Purpose v. Prime One, 125 F. Supp. 2d 1093, 1099-1100 (S.D. Fla.
2000) (citing Warshall v. Price, 629 So. 2d 903, 904 (Fla. 4th DCA 1993))).
The essence of conversion is the possession of property in conjunction with
a present intent on the part of the wrongdoer to deprive the person entitled
to possession of the property, which may be, but is not always, shown by
demand and refusal. Of course, there may be liability for conversion even
when the property was obtained without a specific wrongful intent. Seymour
v. Adams, 638 So. 2d 1044, 1047 (Fla. 5th DCA 1994) (stating that
conversion “may be established despite evidence that the defendant took
or retained property based upon the mistaken belief that he had a right to
possession, since malice is not an essential element of the action”). But
ordinarily a cause of action for conversion will arise only after the person
entitled to possession demands possession, thereby giving the person in
possession actual notice of the rights of the person who is legally entitled to
possession.
Ernie Passeos, Inc. v. O'Halloran, 855 So. 2d 106, 108-09 (Fla. 2d DCA 2003) (internal
citations omitted). Demand and refusal are unnecessary where they would be futile. Id.
at 109 (citing Shelby Mut. Ins. Co. v. Crain Press, Inc., 481 So. 2d 501, 503 (Fla. 2d DCA
1986)). “The purpose of proving a demand for property by a plaintiff and a refusal by a
defendant to return it in an action for conversion is to show the conversion. The generally
accepted rule is that demand and refusal are unnecessary where the act complained of
amounts to a conversion regardless of whether a demand is made.”
Malowney, 157 So. 2d 829, 832 (Fla. 2d DCA 1963).

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Goodrich v.

The Complaint does allege that once Craig learned of certain acts of malfeasance,
she demanded return of the funds, whereby RKropp returned only a portion of the funds.
(Doc. 2, ¶ 21(c), (m)). Plaintiffs have plausibly alleged that the parties conspired to
wrongfully deprive Plaintiffs of their property and Plaintiffs have otherwise alleged that a
demand was made of RKropp whereby the funds were not returned, demonstrating futility
of any further requests. Defendants’ remaining arguments for dismissal fail because
Plaintiffs allege throughout the Complaint that the actions of Defendants were
unauthorized and a specific amounts are alleged.
C. Count 3 – Breach of Fiduciary Duty
Count 3 asserts a claim for breach of fiduciary duties against RKropp and SKropp,
but only SKropp moves to dismiss the claim. The elements of a claim for breach of
fiduciary duty are: (1) the existence of a fiduciary duty; (2) the breach of that duty; and (3)
damage proximately caused by that breach. Minotty v. Baudo, 42 So. 3d 824, 836 (Fla.
4th DCA 2010) (citing Gracey v. Eaker, 837 So. 2d 348, 353 (Fla. 2002)). If a relation of
trust and confidence exists between the parties (that is to say, where confidence is
reposed by one party and a trust accepted by the other, or where confidence has been
acquired and abused), that is sufficient as a predicate for relief for breach of fiduciary
duty. Brigham, 11 So. 3d at 387.
As discussed above, the Court has found that Plaintiffs have alleged sufficient facts
upon which a fiduciary relationship may be implied by law, yet SKropp argues that the
Complaint fails to allege that KOR placed any trust in, or reliance on, her. A review of the
Complaint belies this assertion. Plaintiffs allege that SKropp became a confidant and
very close friend of Craig who trusted SKropp, whereafter SKropp wrongfully

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misappropriated funds from Plaintiffs. (Doc. 1, ¶¶ 16, 17, 21, 34). Therefore, the request
to dismiss Count 3 is denied.
D. Count 4 – Unjust Enrichment
Count 4 is alleged against all Defendants, but only SKropp and DKropp move to
dismiss the claim. In order to prevail under an unjust enrichment claim in Florida, Plaintiffs
“must demonstrate facts, that if accepted as true, would establish: (1) that a benefit was
conferred upon Defendants; (2) that Defendants either requested the benefit or voluntarily
accepted it; and (3) that under the present circumstances, it would be inequitable for
Defendants to retain the benefit without paying for it.” Eller Media Corp. v. Nat'l Union
Fire Ins. Co. of Pittsburgh, 355 F. App’x 340, 341-42 (11th Cir. 2009) (citing W.R.
Townsend Contracting, Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297, 303 (Fla. 1st
DCA 1999)).
SKropp and DKropp argue that the Complaint’s allegations are conclusory and do
not establish that Defendants’ retention and use of the money violates good conscience.
Here, the Complaint alleges that SKropp and DKropp obtained the benefit of the Plaintiffs’
funds. Further, Plaintiffs allege that Defendants voluntarily accepted the money and it
would be inequitable for SKropp and DKropp to retain this benefit. At this stage in the
litigation, the Court finds that Plaintiffs have adequately pled a cause of action for unjust
enrichment.
E. Count 5 – Money Had and Received
Count 5 is alleged against all Defendants, and all Defendants move to dismiss this
claim. Defendants argue the claim should be dismissed because it is redundant of the
unjust enrichment claim, and equity does not require this Court to award damages.

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Florida recognizes a cause of action for money had and received. Florida law recognizes
the general rule that “an action for money had and received, currently treated as an action
for restitution, can be maintained where money is paid under a mistake of fact or where
money has been obtained through fraud, imposition, extortion or undue advantage.”
Berry v. Budget Rent A Car Sys., Inc., 497 F. Supp. 2d 1361, 1370 (S.D. Fla. 2007)
(quoting Central Bank & Trust Co. v. General Fin. Corp., 297 F.2d 126, 129 (5th Cir.
1961)); see also 1021018 Alberta Ltd. v. Netpaying, Inc., No. 8:10-CV-568-T-27MAP,
2011 WL 1103635, *6 (M.D. Fla. Mar. 24, 2011). Notably, intent is not required and an
action for money had and received can be had where money is paid by mistake of fact.
Here, the Court finds that Plaintiffs have plausibly alleged a claim for money had
and received and Defendants have cited no binding authority for the proposition that
unjust enrichment and money had and received may not be pled in the same Complaint.
To the extent Plaintiffs are pleading unjust enrichment and money had and received in
the alternative – as they allude to in their response briefs – the Court accepts this.
F. Count 6 – Equitable Accounting
Count 6 is alleged against all Defendants for an equitable accounting of the funds,
and all Defendants move to dismiss this claim. Defendants SKropp and DKropp allege
that Plaintiffs failed to plead the existence of a fiduciary relationship or a complex
transaction, and RKropp argues that Plaintiffs failed to demonstrate that any remedy at
law is inadequate. “Under Florida law, a party seeking an equitable accounting must
show the existence of a fiduciary relationship or a complex transaction and must
demonstrate that the remedy at law is inadequate.” Kee v. Nat’l Reserve Life Ins. Co.,
918 F.2d 1538, 1540 (11th Cir. 1990).

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Here, as discussed above, the Court has found that the Complaint plausibly
alleges a fiduciary relationship and Plaintiffs may plead an equitable cause of action in
the alternative subject to evidentiary facts showing the inadequacy of a legal remedy.
G. Count 7 – Civil Conspiracy
Count 7 is alleged against all Defendants for civil conspiracy, and all Defendants
move to dismiss this claim. Defendants argue the claim should be dismissed because
KOR has failed to adequately allege any agreement between the Defendants to do
tortious harm to KOR. “A civil conspiracy requires: (a) an agreement between two or
more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the
doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a
result of the acts done under the conspiracy.” Charles v. Fla. Foreclosure Placement Ctr.,
LLC, 988 So. 2d 1157, 1159-60 (Fla. 3d DCA 2008) (citations omitted). “The basis for
the conspiracy must be an independent wrong or tort which would constitute a cause of
action if the wrong were done by one person.” Kee, 918 F.2d at 1541 (internal citation
omitted); see also Chepstow Ltd. v. Hunt, 381 F.3d 1077, 1089 (11th Cir. 2004) (“The
cause of action for civil conspiracy lies not in the conspiracy itself, but in the underlying
tort committed against the plaintiff and the resulting damage.”).
Here, the Court finds that Plaintiffs adequately state a claim for civil conspiracy
based upon the underlying, various tort theories which the Court has determined are all
viable and adequately pled at the motion to dismiss stage.
Accordingly, it is now
ORDERED:
(1)

Defendant Sherri Kropp’s Motion to Dismiss (Doc. 11) is DENIED.

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(2)

Defendant Dylan Kropp’s Motion to Dismiss (Doc. 14) is DENIED.

(3)

Defendant Roman Kropp’s Motion to Dismiss (Doc. 21) is DENIED.

(4)

Defendants shall file an Answer to the Complaint (Doc. 2) within fourteen

(14) days of this Opinion and Order.
DONE and ORDERED in Fort Myers, Florida this 9th day of June, 2017.

Copies: All Parties of Record

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