Filing # 108601565 E-Filed 06/09/2020 02:49:24 PM

IN THE CIRCUIT COURT FOR THE THIRTEENTH JUDICIAL CIRCUIT

IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION

SEAFARER EXPLORATION CORP.,

Plaintiff,

v. Case No. 20-CA-0003434

Division: A

MICHAEL TORRES
Defendant.

CLEARTRUST, LLC
Third Party Respondent

DEFENDANT MICHAEL TORRES’S MOTION TO DISMISS

PLAINTIFF’S AMENDED COMPLAINT

COMES NOW Defendant Michael Torres, by and through undersigned counsel,

and submits his Motion to Dismiss Plaintiff’s Amended Complaint pursuant to Rule

1.140(B) Fla. Stat., and in support of the Motion, without waiving and specifically

reserving any right it has to object to the sufficiency of process, service of process, proper

venue or jurisdiction of this court, moves this Court for the entry of an Order dismissing

this cause with prejudice, and as grounds therefore states:

ARGUMENT

I. Plaintiff’s Amended Complaint fails to properly state a cause of action for “Fraud

in the Inducement” as there are not sufficient facts alleged to suffice the burden of

proving the disparate elements of that tort. To state a cause of action for fraud in the

inducement, a Plaintiff must allege that there was a misrepresentation of a material fact,

that the representer of the misrepresentation knew or should have known of the falsity of

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 the statement, that the representer intended that the representation would induce another

to rely and act on it, and that the Plaintiff suffered injury in justifiable reliance on the

representation. Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 497 (Fla.

4th DCA 2001). In this instance, the allegations in Plaintiff’s Amended Complaint lack

the specificity required to sustain a claim for Fraud under Florida common law and per

the elements in Samuels (the maker of the false statement, the substance of the false

statement, the time frame the statement was made and the context of said statement).

Accordingly, Count I should be dismissed.

II. Plaintiff’s Amended Complaint fails to properly state a cause of action for

“Fraud” under Florida common law, as there are not sufficient facts alleged to suffice the

burden of proving the disparate elements of that tort. To state a cause of action for fraud,

a Plaintiff must allege a material misrepresentation that was relied upon by Plaintiff and

accordingly the Plaintiff suffered injuries connected to the misrepresentation. Further,

this Count must be plead with particularity, a claim must allege precise statements, the

time and place the statements occurred, the content and manner in which the statements

misled the Plaintiff, and what the Defendant gained by the alleged fraud. Butler v. Yusem,

44 So. 2d 102, 105 (Fla. 2010) In this instance, the Plaintiff has failed to allege with

particularity, what the Defendant gained from any alleged fraud, as well as failing to

allege the ways in which Defendant could have misled the Plaintiff. Accordingly, Count

II should be dismissed.

III. Plaintiff’s Amended Complaint fails to properly state a cause of action for “Civil

Theft” under Florida common law, as there are not sufficient facts alleged to suffice the

burden of proving the disparate elements of that tort. To state a claim for civil theft under

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 Florida state law, a Plaintiff must allege that the Defendant knowingly obtained property

with felonious intent to deprive the Plaintiff of their entitlement to the property, which

Plaintiff’s Amended Complaint fails to outline, per Almeida v. Amazon.com, 456 F.3d

1316 (11th Cir. 2006) and United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009).

The Amended Complaint as read does not establish the felonious intent component of

civil theft which would cause Defendant Torres to be liable under the above case law.

Further, neither the Count nor the Plaintiff’s statutory civil theft demand letter detail the

intent required for a civil theft claim to prevail, failing the multipronged analysis for a

successful civil theft claim to be brought. Accordingly, Count III should be dismissed.

IV. Plaintiff’s Amended Complaint fails to properly state a cause of action for

“Immediate and Permanent Injunctive Relief” under Florida common law, as there are

not grounds as alleged in the Amended Complaint for the Court to rule in Plaintiff’s

favor. Plaintiff’s Amended Complaint does not detail why there is a significant ticking

clock or immediate irreparable harm to Plaintiff which would prompt the Court to enter

an Injunctive Order for the relief Plaintiff is seeking under this Count, as even if the

Court were to grant relief to Plaintiff on Counts 1-III, there is no present immediate harm

which Defendant presents which would justify immediate and permanent injunctive relief

under this Count. Accordingly, Count IV should be dismissed.

CONCLUSION

For the foregoing reasons, Defendants Michael Torres respectfully requests that

this Court dismiss Plaintiff’s Amended Complaint, with prejudice, and enter an Order

awarding Defendant all reasonable fees and costs in connection with defense of this

action.

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 Respectfully submitted on June 9th, 2020.

s/ Trescot J. Gear__________________
Trescot J. Gear, Esquire
Florida Bar No. 118216
1405 West Swann Avenue
Tampa, Florida 33606
Tel.: (904) 654-6221
Fax.: (813) 337-0243
Primary email: Trescot@gearlawllc.com
Attorneys for Defendant

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th day of June, 2020, a true and correct copy
of the foregoing Defendant’s Motion to Dismiss was furnished to the Plaintiff’s Counsel
via the Florida E-Filing Portal.

GEAR LAW, LLC

s/ Trescot J. Gear__________________
Trescot J. Gear, Esquire
Florida Bar No. 118216
1405 West Swann Avenue
Tampa, Florida 33606
Tel.: (904) 654-6221
Fax.: (813) 337-0243
Primary email: Trescot@gearlawllc.com
Attorneys for Defendant

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