IN THE CIRCUIT COURT OF THE
20 TH JUDICIAL CIRCUIT, IN AND
FOR SARASOTA COUNTY, FLORIDA
Case No.: 2022 CC 3796 NC
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fees an costs.
ARGUMENT(S)
A. Stadard of Review
In reviewing a motion to dismiss, the Court must construe the allegations of the
complaint “in the light most favorable to plaintiffs and the trial court must not speculate what the
true facts may be or what will be proved ultimately in trial of the cause.” Hitt v. North Broward
Hosp. Dist., 387 So. 2d 482, 483 (Fla. 4th DCA 1980). The court is confined to consideration of
the allegations found in the four corners of the complaint. Baycon Indus., Inc. v. Shea, 714 So. 2d
1094, 1095 (Fla. 2d DCA 1998). A motion to dismiss should be denied when a complaint
sufficiently states a cause of action. See Solorzano v. First Union Mortgage Corp., 896 So. 2d
847, 849 (Fla. 4th DCA 2005); see also Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563,
565-66 (Fla. 1971) (holding error to dismiss a complaint that contains sufficient allegations to
acquaint the defendant with the plaintiff’s charge of wrongdoing so that the defendant can
intelligently answer the same).
B. The Defendants are individually responsible for the breaches of their fiduciary
duties
Defendants aver that since Plaintiff withdrew the previous case against VFAF, Case
Number 2021 CA 006077, Plaintiff is precluded from suing Defendants individually. On the
contrary, Plaintiff asserts that Defendants are individually liable for their breaches of fiduciary
duties in their role as Directors in VFAF.
Florida law has long recognized that corporate officers and directors owe fiduciary
duties—duties of care, loyalty, and good faith—to corporations, including not-for-profits. Fla.
Stat. Ann. § 617.0830; Fox v. Prof’l Wrecker Operators of Fl., Inc., 801 So. 2d 175, 181 (Fla.
Dist. Ct. App. 2001.
According to FL Stat § 617.0830 (2021), Directors of Not for Profit corporations are
obligated to a certain standard of conduct. The said section provides in pertinent part as follows:
(1) A director shall discharge his or her duties as a director, including his or
her duties as a member of a committee:
(a) In good faith;
(b) With the care an ordinarily prudent person in a like position would
exercise under similar circumstances; and
(c) In a manner he or she reasonably believes to be in the best interests of the
corporation.
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Further, Section 607.0831(1)(a)(b)(2), Florida Statutes provides that a director can be
held personally liable for monetary damages, if the director derived an improper personal
benefit, either directly or indirectly.
In the instant action, Defendant Vladmir Lemets, as the Chairman of VFAF, was
obligated to ensure that no expense reimbursement funds are to be paid from or withdrawn from
the corporate bank account(s) without following the requisite steps. He was also obligated to
follow the required accounting steps. However, Vladmir failed to raise an alarm, or prevent the
misappropriation of VFAF’s funds and assets. He withdrew money from VFAF’s bank
account(s), and put the charity’s website in his for profit company that he runs solely.
Defendant Eduardo Godoy, the Treasurer and Chief Financial Officer of VFAF, was
obligated to ensure that no expense reimbursement funds are to be paid from or withdrawn from
the corporate bank account(s) without following the requisite steps. He was also obligated to
follow the required accounting steps. However, Godoy failed to raise an alarm, or prevent the
misappropriation of VFAF’s funds and assets.
Defendant Charles Kubic, as a Board Member of VFAF, was obligated to conduct and
oversee business of the charity. Notably, Defendant Kubic was obligated to ensure that no
expense reimbursement funds are to be paid from or withdrawn from the corporate bank
account(s) without following the requisite steps. He was also obligated to follow the required
accounting steps. However, Kubic failed to raise an alarm, or prevent the misappropriation of
VFAF’s funds and assets.
Defendant Joshua Macias was oligated to conduct and oversee business as a Board
Member. Defendant Macias was obligated to ensure that no expense reimbursement funds are to
be paid from or withdrawn from the corporate bank account(s) without following the requisite
steps. He was also obligated to follow the required accounting steps. However, Macias failed to
raise an alarm, or prevent the misappropriation of VFAF’s funds and assets.
Defendant Melissa Lemets was obligated to ensure that no expense reimbursement funds
are to be paid from or withdrawn from the corporate bank account(s) without following the
requisite steps. She was also obligated to follow the required accounting steps. However, Melissa
failed to raise an alarm, or prevent the misappropriation of VFAF’s funds and assets.
The Defendants have also failed to get the proper registrations in states where they are
soliciting charitable funds from. They lied to and defrauded the former President of the VFAF
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out of amounts of money they owed him. It is also notale that hey held illegal board meetings
without noticing all board members.
C. Plaintiff’s Complaint does not seek to harass or embarrass Defendants
Defendants allege that Plaintiff is using the Complaint to harass the Defendants. On the
contrary, Plaintiff avers that the Complaint sets out pertinent cause(s) of action against
Defendants.
In Case Number 2021 CA 006077, Plaintiff had sued for $47,000. However, Plaintiff
entered the Settlement Agreement, and settled at $25,000. Plaintiff only settled for the reduced
amount due to his need to get done with the toxic organization. It follows; Plaintiff has sued this
instant action because Defendants stated that they would blackball and ostracize anyone who
worked with Plaintiff. For that reason, all of Plaintiff’s potential job offers as Chief of Staff.
Besides, VFAF’s motto is for Veterans and First Responders. Plaintiff is a child of a
veteran and is a first Responder. Plaintiff therefore has standing to bring this suit.
D. Plaintiff’s subpoena raises admissible evidence; the requests do not cause undue
burden
Defendants allege that the requests in Plaintiff’s subpoena would not riase admissible
evidence. Defendants also aver that the requests are unduly burdensome.
“It is well settled that „[t]he admissibility of evidence is within the sound discretion of
the trial court, and the trial court‟s determination will not be disturbed on appellate review absent
a clear abuse of that discretion.‟ ” Rimmer v. State, 59 So. 3d 763, 774 (Fla. 2010) (quoting
Brooks v. State, 918 So. 2d 181, 188 (Fla. 2005)).
Whether a discovery burden is undue or excessive is usually a functionof economics.
Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197,1199-1201 (Fla. 4th DCA 2000). The fact
that a party may be forced to furnish discovery when thecost to do so is deemed inordinate does
not involve a failure “to affordprocedural due process” Haines City Community Development v.
Heggs, 658 So.2d 523, 530 (Fla. 1995).
Plaintiff avers that the requests in the Subpoena are admissible, and that it is upon the
court to determine their inadmissibility. Furher, Plaintiff avers that the requests are not overly
burdensome as alleged by Defendants.
E. Defendants are not entitled to attorney’s fees and costs
Defendants allege that Plaintiff should be ordered to pay Defendant’s attorney’s fees and
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costs.
Generally, a court may award attorney’s fees only when such fees are expressly provided
for by statute, rule or contract. Notably, Section 163.3215, Florida Statutes, in providing for an
aggrieved person to bring an action, does not provide for attorney’s fees for the prevailing party.
The Court in Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) held
that Florida has refused to accept the "English Rule" that attorney’s fees are part of the costs to be
charged by a taxing master, adopting instead the "American Rule" that attorney’s fees may be
awarded by a court only when authorized by statute or by agreement of the parties. See also
Young v. Altenhaus, 472 So.2d 1152 (Fla. 1985).
There is no law, rule, or contract that directs the Defendants to seek for an Order for
Plaintiff to pay Defendants’ attorney’s fees. For that reson, Defendants’ claims for attorney’s
fees should be denied.
CONCLUSION
Plaintiff has raised sufficient facts to establish a case against Defendants. Accordingly,
Plaintiff asks the Court to deny the Defendants’ Motion to Dismiss in its entirety.
DATED: ___________
___________________________
PATRICIA D. MURPHY
P. O. Box 20159
Sarasota, FL34276
Ph (941) 549-0937
Pat1smiley@yahooo.com
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CERTIFICATE OF MAILING
I, [ENTER NAME], certified on this day of .2022, I
deposited a true copy of the above to the Defendant by placing the document with prepaid
postage in the United States mailbox address to each person.
Barry E. Witlin, Esquire
7805 S.W. 6 th Court
Plantation, FL 33324
(954) 473-4500 (Broward)
(954) 473-1970 (Facsimile)
Email: witlinlaw@gmail.com
barrywitlinlaw@gmail.com
Attorneys for DEFENDANTS
___________________________
PATRICIA D. MURPHY
P. O. Box 20159
Sarasota, FL34276
Ph (941) 549-0937
Pat1smiley@yahooo.com
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