1. This is a case involving a Florida company that supplies orthotic and prosthetic devices to its clients and a former employee who breached contracts/written agreements with the Company, committed numerous improper acts against the Company, which improper acts have cost the Company tens of thousands of dollars in lost revenue and profits, damaged corporate property, violated a non-compete agreement, and engaged in other harmful actions causing damages to Plaintiff, SBOP and SELLECK.
2. Plaintiff, SBOP, is a corporation organized and existing under the laws of the state of Florida with its principal place of business in Broward County, FL. 3. Plaintiff, SELLECK, is an individual, and is a resident of the State of Florida.
4. Orthotic and Prosthetic Centers, Inc. (hereinafter “OPC”) is a Florida
corporation with its principal place of business in Pinellas County, FL. OPC currently employs SALERNO and derives significant benefits from his activities.
5. Defendant, SALERNO, is an individual, sui juris, who upon information and belief resides at 889 Southwest Kappa Avenue, Port St. Lucie, St.
Lucie County, FL 34953. SALERNO is a former employee of SBOP and a current employee of OPC.
6. This is an action for damages in excess of $30,000.00, exclusive of attorney’s fees, costs and interest, as well as for injunctive relief and equitable relief. This Honorable Court has jurisdiction pursuant to Section 26.012, Section 47.011, Section 47.041 and Section 48.193, Florida Statutes and its prior Order.
7. Venue is proper in Palm Beach County, Florida, as the contracts at issue were negotiated and/or consummated and breached in Palm Beach County, FL, or the events giving rise to some or all of the other causes of actions contained herein occurred in Palm Beach County, Florida, and the Court’s order permits same.
8. SBOP has been operating as a Florida corporation since 2004. It was organized for the purpose of providing orthotic and prosthetic services to patients as well as for the purpose of transacting any and all lawful business for which a corporation may be incorporated.
9. SALERNO was one of the Defendant’s at-will employees, hired on June 27, 2016, who held the position of Director of Patient Care for the Stuart Region. At the time of his employment, SALERNO executed an Employment Agreement (Attached hereto as Exhibit A).
10. In his position of Director of Patient Care for the Stuart Region, SALERNO was entrusted with several aspects of SBOP’s business operations for his territory and was given access to SBOP corporate property, resources, credit card(s), confidential private information, including but not limited to:
a. Patient referral sources;
b. Customer lists and contact information;
c. Customer information and records protected by HIPPA;
d. Customer accounts;
e. Customercontracts;
f. Operations;
g. Pricing; and
h. Trade Secrets.
SALERNO was also given access to a company vehicle, iPad, iPhone, and other company assets/resources.
11. SALERNO was provided with and permitted to use a corporate vehicle while conducting business on behalf of SBOP. He was aware he was responsible for the maintenance of the corporate vehicle and was liable for it at all times (See Exhibit A, Paragraph 5 and Exhibit C, Paragraph 5).
12. SALERNO was informed of and was aware of the Roles, Responsibilities, Expectations and Standards required by SBOP for his position. (Exhibit B).
13. SALERNO’s performance fell below the acceptable performance standards he was required to achieve and maintain and, as such, on April 11, 2019, SALERNO was placed on a 60 Day Performance Improvement Plan, which he acknowledged by signing the same day (See Exhibit C).
14. He also signed a new Employment Agreement dated April 11, 2019 (See Exhibit D). Such Employment Agreement forms the basis for several of the causes of action and relief requested herein.
15. The Employment Agreement (Exhibit D) contains restrictive covenants in Paragraphs 7, 8, 9, and 10. The pertinent sections state as follows:
7. CONFIDENTIALITY. Employee recognizes that South Beach Orthotics & Prosthetics, Inc. has and will have information regarding the following:
-inventions
-products
-product design
-processes
-technical
matters
-trade secrets
-copyrights
-customer lists
-business
affairs
-future plans
-Patients, Patient Referral Sources (both
facilities andpersonnel), and Vendors.
-Patient information in compliance
with HIPPA
and other vital information items (collectively, “Information”) which are valuable, special and unique assets of South Beach Orthotics & Prosthetics, Inc. Employee agrees that Employee will not at any time or in any manner, either directly or indirectly, divulge, disclose, or communicate any Information to any third party without the prior written consent of South Beach Orthotics & Prosthetics, Inc. Employee will protect the Information and treat it as strictly confidential. A violation by Employee of this paragraph shall be a material violation of this Agreement and will justify legal and/or equitable relief (Emphasis supplied).
8. UNAUTHORIZED DISCLOSURE OF INFORMATION. If it appears that Employee has disclosed (or has threatened to disclose) Information in violation of this Agreement, South Beach Orthotics & Prosthetics, Inc. shall be entitled to an injunction to restrain Employee from disclosing, in whole or in part, such Information, or from providing any services to any party to whom such Information has been disclosed or may be disclosed. South Beach Orthotics & Prosthetics, Inc. shall not be prohibited by this provision from pursuing other remedies, including a claim for losses and damages (Emphasis supplied).
9. CONFIDENTIALITY AFTER TERMINATION OF EMPLOYMENT. The confidentiality provisions of this Agreement shall remain in full force and effect for a period of 2 years after the voluntary or involuntary termination of Employee’s employment. During such period, neither party shall make or permit the making of any public announcement or statement of any kind that Employee was formerly employed by or connected with South Beach Orthotics & Prosthetics, Inc.
10. NON-COMPETE AGREEMENT. Employee recognizes that the various items of Information are special and unique assets of the company and need to be protected from improper disclosure. In consideration of the disclosure of the Information to Employee,
Employee agrees and covenants that during his or her employment by South Beach Orthotics & Prosthetics, Inc. and for a period of 2 years following the termination of Employee’s employment, whether such termination is voluntary or involuntary, Employee will not directly or indirectly engage in any business competitive with South Beach Orthotics & Prosthetics, Inc.
A competitive business is deemed to be any work in the prosthetics or orthotics field or using our referral sources of patients in any capacity.
Due to the mobile nature of South Beach’s business, this covenant shall apply to the geographical area that includes a 50-mile radius from the home office identified in I.B., above. Directly or indirectly engaging in any competitive business includes, but is not limited to: (i) engaging in a business as owner, partner, or agent, (ii) becoming an employee of any third party that is engaged in such business, (iii) becoming interested directly or indirectly in any such business, or (iv) soliciting any customer of South Beach Orthotics & Prosthetics, Inc. for the benefit of a third party that is engaged in such business. Employee agrees that this non-compete provision will not affect Employee’s livelihood.
16. The Restricted Sales Territory is within a 50-mile radius of the Stuart Region.
17. During the course of his three (3) year employment with SBOP, SALERNO:
a. Received from SBOP confidential, proprietary, and trade secret information, materials and business concepts, including, but not limited to, customer lists, customer contact information, customer
preferences, order histories, customer complaints and compliments, orthotic and prosthetic pricing and product information, operating methods, business policies and practices;
a. Was trained and educated by SBOP on all of the products sold by and services offered by SBOP;
b. Received from SBOP employee training programs, customer information, orthotic and prosthetic pricing policies, strategic plans, and intellectual policies related to SBOP’s business;
c. Was introduced to SBOP’s customers by either SBOP or SBOP’s referral sources as one of SBOP’s employees that would be selling orthotic and prosthetic products, making product presentations, providing services to SBOP’s customers, and other activities;
d. Was introduced to SBOP’s customers and referral sources and encouraged to develop business relationships with Plaintiff’s customers and referral sources so as to be in a position to provide services to any of Plaintiff’s customers or referrals in the Restricted
Territory;
e. Prepared and developed plans and or strategies to acquire new customers and referral sources in the Restricted Territory;
g. Assisted SBOP’s customers with the use of orthotic and prosthetic products and supplies sold throughout the subject territory; and
h. Other activities to be proven at trial.
18. SBOP has a legitimate business interest in the business relationships which SBOP has developed over the last fifteen (15) years.
19. The restrictive covenants contained within SALERNO’s Employment Agreement (Exhibit D) were, and are, reasonably necessary to protect SBOP’s legitimate business interests as well as the confidentiality of it, confidential and proprietary information and trade secrets.
20. After being placed on his 60-Day Performance Improvement Plan, SALERNO failed to achieve and maintain the acceptable levels of performance and was due for re-evaluation in June 2019.
21. SALERNO voluntarily resigned “effective immediately”, via email, on June 9, 2019, as follows:
From: Jason Salerno Date: June 9, 2019 at 5:03:20 PM EDT
Subject: Resignation Ina/Mark,
Effective immediately I am resigning my position as DOPC at SBOP. It was a very difficult decision, but with all the changes to salaries, commissions and the structure, I feel I need to move on.
I left the company vehicle, iPad, iPhone corporate card and gas card at the Stuart office.
I wish all of you great things to come. Thank you for everything.
Jason Salerno
Best Regards, Jason Salerno
(See Exhibit E).
22. SALERNO is currently employed by Orthotic & Prosthetic Centers, Inc.
(“OPC”) in essentially the same capacity he was employed by SBOP and is serving the same territory for which he was responsible while employed by SBOP.
23. SALERNO’s Linked-In page states he is a Patient Care Manager for Orthotics and Prosthetic Centers, Inc. and states that he is engaged in “Marketing and Sales to medical verticals, vascular surgeons, hospitals, Skilled nursing and Rehabs, wound care, Dialysis and kidney centers. (Exhibit F)
24. SALERNO’s current employer, OPC, is a direct competitor of SBOP in the Restricted Territory and throughout the state of Florida.
25. SBOP has received credible information from its customers, referral sources and business contacts that SALERNO:
a. Is selling and/or marketing and/or promoting orthotics and prosthetics for OPC;
b. Is working for OPC in the Restricted Territory;
c. Is and/or has used SBOP customer lists and customer contact information and patient referral sources to assist him in making sales calls on and presentations to Plaintiff’s customers;
d. Has directly or indirectly, individually and in concert with others, solicited SBOP’s customers and/or referral sources in an attempt to convince SBOP’s customers to switch from the use of orthotics and prosthetics sold by SBOP to the use of such products sold by
SALERNO’s new employer, OPC;
e. Since SALERNO’s resignation, SBOP has discovered that, prior to his resignation from SBOP, SALERNO was in violation of his Employment Agreement by conducting himself in such a manner as to cause others to believe he was working for OPC already. Such conduct included but was not limited to, introducing employees of OPC to patients and patient referral sources, and diverting patients to OPC; and
f. Engaged in other violative activities to be proven at trial.
26. SALERNO was in violation of his Employment Agreement prior to his resignation and has remained in violation since his resignation.
27. SBOP, by and through its counsel, sent a letter dated June 17, 2019 to SALERNO reminding him of the restrictive covenants contained within the Employment Agreement (See Exhibit G). To date, no response has been made by SALERNO to such letter.
28. Also, as stated above, SALERNO was provided with one or more corporate credit cards for use in his position as Director of Patient Care- Stuart Region. On January 22, 2019, all applicable employees were provided with SBOP’s new Expense Report/Corporate Credit Card Policy via email and were requested to acknowledge receipt by email and advised that such acknowledgement would serve as the employee’s electronic signature for immediate compliance with the new policy. SALERNO replied to the email at 3:24pm on January 22, 2019 stating “Confirmed” and “Got it”. (See Exhibit H).
29. On April 19, 2019, SALERNO electronically submitted a “Personal Time Off Form” requesting 5 days off from June 3, 2019 to June 7, 2019. Such request was approved on April 24, 2019. (See Exhibit I).
30. On May 25, 2019, a Saturday, SALERNO used the corporate credit card at a Shell Gas Station in Port St. Lucie ($7.48), City Limits Sports Bar in Port St Lucie ($26.02) and Cumberland Farms Gas Station in Port St. Lucie ($17.32). On June 6, 2019, SALERNO used the corporate credit card at the Draft Sports Bar and Grill at Westgate Lakes Resort in Orlando, FL ($90.03). These purchases were made on days SALERNO was not working and on a weekend day, or while on vacation/on days requested off from work, which is prohibited by the Corporate Credit Card policy. They were unauthorized personal expenses charged to SBOP. (See Exhibit J).
31. SALERNO made multiple unauthorized charges with GEICO on the corporate credit card during his employment. These charges were also unauthorized personal expenses charged to the company in violation of the Corporate Credit Card Policy. (See Exhibit K).
32. SALERNO has breached the Corporate Credit Card Policy and converted SBOP’s corporate assets for his own benefit and for his own use.
SALERNO was requested to repay the improper and unauthorized charges and has refused to do so.
33. SALERNO has also engaged in false advertising, defamation, tortious interference with advantageous business relationships, deceptive and unfair practices, and other actions detrimental to Plaintiff’s
34. SBOP has engaged the services of the undersigned counsel and is obligated to pay reasonable attorneys’ fees and costs in connection with this action. 35. All conditions precedent to commencement of this action have been performed, waived, and/or excused.
SBOP and SELLECK sue SALERNO for injunctive relief and in support thereof states as follows:
36. SBOP adopts and realleges paragraphs one (1) through thirty-five (35) as though fully set forth herein.
37. SALERNO’s actions, as enumerated above, are in violation of the restrictive covenants contained in the Employment Agreement (Exhibit D) as:
a. The orthotic and prosthetic products being marketed and/or sold by SALERNO are sold and/or marketed in direct competition to the products sold by SBOP;
b. SALERNO’S new employer, OPC, is a direct competitor of SBOP in the Stuart Region and throughout the state of Florida;
c. SALERNO is working for OPC in a territory which is within the Restricted Area in which SALERNO agreed he would not work following his voluntary or involuntary termination of employment as stated in the Employment Agreement (Exhibit D);
d. SALERNO is using SBOP’s confidential and proprietary information including, but not limited to, SBOP’s customer lists, customer contact information, and other proprietary information and trade secrets to gain an unfair economic advantage over SBOP; and
e. SALERNO is directly or indirectly, individually and in concert with others, soliciting business from SBOP’s customers.
38. SALERNO’s violations of the terms and conditions of the Employment Agreement (Exhibit D) have caused SBOP irreparable injury and unless enjoined by this Court will continue to cause irreparable injury as it is impossible to determine the value of the loss of business or goodwill, including loss of customers and the disruption of business relationships between SBOP and those customers whose business was diverted to OPC by SALERNO, as well as all of the financial damages which, at this time, are not capable of calculation.
39. Further, SBOP has incurred damages as a result of SALERNO’s actions; the damages are of a kind and of a degree which cannot be completely compensated by monetary damages, leaving Plaintiff with no adequate remedy of law.
40. In light of SALERNO’s egregious conduct and blatant attempts to injure SBOP, there is a substantial likelihood that SBOP will succeed on the merits and is entitled to the equitable relief sought herein.
40. In light of SALERNO’s egregious conduct and blatant attempts to injure SBOP, there is a substantial likelihood that SBOP will succeed on the merits and is entitled to the equitable relief sought herein.
42. Florida has established a policy to enforce valid restrictive covenants as enumerated in Section 542.335(1)(j), Fla. Stat. (directing Florida courts to enforce valid restrictive covenants by any appropriate remedy, including by temporary injunction).
43. Pursuant to Section 542.335, Fla. Stat., SBOP is entitled to recover the costs of this suit, including attorneys’ fees, should it substantially prevail in this action.
WHEREFORE, SBOP prays that the Court enter judgment and temporary and/or permanent injunctive relief in its favor against SALERNO as follows:
a. that SALERNO is enjoined from being part of any orthotic or prosthetic business competitive with SBOP’s sales business in the Restricted Territory;
b. that SALERNO is enjoined from directly or indirectly soliciting any of SBOP’s customers or attempting to divert business from SBOP to another business;
c. that SALERNO is enjoined from directly, or indirectly, in concert with others, communicating with, calling on or making presentations to SBOP’s customers with the intent of diverting or attempting to divert business from SBOP to SALERNO or OPC or any other competitor in the Restricted Territory;
d. that SALERNO is enjoined from covering surgical cases with in the Restricted Territory for any other orthotic or prosthetic company that is competitive with SBOP’s business operations;
e. that SALERNO is enjoined from disclosing to third parties or using Plaintiff’s confidential information in any way to assist SALERNO, OPC, or those persons acting in concert with SALERNO or OPC, from competing with SBOP; and
a. that SALERNO is ordered to pay SBOP’s attorneys’ fees and costs incurred by it in bringing this action pursuant to Section 542.335, Fla. Stat.; and
b. any other relief this Court deems just and proper under the circumstances.
SBOP sues SALERNO for breach of contract and in support thereof states as follows:
44. SBOP readopts and realleges paragraphs one (1) through thirty-five (35) and thirty-three (34) as though fully set forth herein.
45. As set forth more fully above, the Employment Agreement is a valid and binding agreement entered into for good and valuable consideration.
46. Under the Employment Agreement, SALERNO agreed to do certain things, including but not limited to:
a. Achieve and maintain acceptable levels of performance;
b. Actively seek out and develop new business for SBOP;
c. Meet and exceed the expectations and needs of existing SBOP customers/patients; and
d. Work diligently on be half of SBOP and devote his best efforts to the business and interests of SBOP.
47. SALERNO breached the Employment Agreement by failing to achieve and maintain acceptable performance standards, failing to develop new business for SBOP, failing to meet and exceed the expectations and needs of all patients/customers for which he was responsible, failing to work diligently on behalf of SBOP and failing to devote his best efforts to the business and interests of SBOP by diverting and/or attempting to divert business opportunities from SBOP to SBOP’s competitor, and current SALERNO employer, OPC. SALERNO further breached the Employment Agreement by converting SBOP’s confidential and proprietary information to his own use by, including but not limited to: (a) failing to pursue patient referrals for SBOP, (b) attempting to thwart SBOP’s ability to attract new business and new clients by persuading or attempting to persuade SBOP’s referral sources to stop referring patients to SBOP and instead refer them to SALERNO and OPC, (c) attempting to thwart SBOP’s ability to attract new business and new clients by contacting new referrals and existing patients and/or customers of SBOP and diverting or attempting to divert them to OPC, (d) failing to complete routine job tasks, (e) breaching the restrictive covenants contained in the Employment Agreement, and (f) other harmful actions to be proven at trial.
48. As a direct and proximate result of SALERNO’s breaches of the Employment Agreement, SBOP has been damaged.
49. Pursuant to Section 542.335, Fla. Stat., Plaintiff is entitled to recover the costs of this action, including reasonable attorney’s fees, should it substantially prevail in this action.
WHEREFORE, SBOP demands judgment against SALERNO for:
a. Damages for breach of the Employment Agreement;
b. Any pre-judgment interest that is recoverable on such amounts;
c. SBOP’s reasonable attorneys’ fees incurred by it in bringing this action pursuant to Section 542.335, Fla. Stat.;
d. any other relief this Court deems just and proper under the circumstances.
SBOP sues SALERNO for fraud in the performance of his Employment Agreement, and in support thereof states as follows:
50. SBOP readopts and realleges paragraphs one (1) through thirty-five (35) as though fully set forth herein.
51. SALERNO made false statements/representations and/or promises throughout the performance of his Employment Agreement (Exhibit D).
52. SALERNO knew that the representations and/or promises were false when he made them, and he intended that SBOP would rely on his misrepresentations.
53. SALERNO misrepresented/agreed that he would do certain things, including but not limited to:
a. Achieve and maintain acceptable levels of performance;
b. Actively seek out and develop new business for SBOP;
c. Meet and exceed the expectations and needs of existing SBOP customers/patients; and
d. Work diligently on behalf of SBOP and devote his best efforts to the business and interests of SBOP.
54. SBOP reasonably relied on SALERNO’s false statements/promises to its detriment and has suffered damages as a result, including loss of business opportunities, loss of revenues and profits, loss of potential clients, loss of referral sources, loss of patients/customers, loss of market share, and has also suffered reputational harm.
WHEREFORE, SBOP demands judgment against SALERNO and requests that this Court:
a. Enter judgment in its favor against SALERNO.
b. Award SBOP damages for fraud in the performance of the Employment Agreement;
c. Award any pre-judgment interest that is recoverable on such amounts;
d. Award SBOP’s costs incurred in this action, including reasonable attorneys’ fees; and
e. any other relief this Court deems just and proper under the circumstances.
SBOP sues SALERNO for breach of contract and in support thereof states as follows:
55. SBOP readopts and realleges paragraphs one (1) through thirty-five (35) as though fully set forth herein.
56. During his employment, SALERNO was provided with one or more corporate credit cards for use in his position as Director of Patient Care- Stuart Region.
57. On January 22, 2019, SALERNO was provided with SBOP’s new Expense Report/Corporate Credit Card Policy via email and was requested to acknowledge receipt by email and advised that such acknowledgement would serve as his electronic signature for immediate compliance with the new policy. SALERNO replied to the email at 3:24pm on January 22, 2019 stating “Confirmed” and “Got it”. (See Exhibit H).
58. Despite electronically signing the Corporate Credit Card Policy, thereby agreeing to be bound by its terms and conditions, SALERNO breached the Agreement by using the Corporate Credit Card(s) for his personal benefit by making multiple unauthorized charges to GEICO, several unauthorized charges while on approved vacation/time off, and other charges to be proven at trial.
59. As a direct and proximate cause of SALERNO’s breaches. SBOP has been damaged.
WHEREFORE, SBOP demands judgment against SALERNO for:
a. Damages for breach of the Corporate Credit Card Policy;
b. Any pre-judgment interest that is recoverable on such amounts;
c. SBOP’s costs incurred by it, including reasonable attorneys’ fees, in bringing this action; and
d. any other relief this court deems just and proper under the circumstances.
SBOP sues SALERNO for tortious interference and in support thereof states as follows:
60. SBOP readopts and realleges paragraphs one (1) through thirty-five (35) as though fully set forth herein.
61. SBOP enjoys numerous contractual and advantageous business relationships with its customers and clientele under which SBOP has legal rights. This is evidenced by its many years of operations, extensive client list, extensive referral sources, and satisfied clientele.
62. At all relevant times SALERNO had knowledge of these contractual and advantageous business relationships.
63. Intentionally and without legal justification, and in derogation of the restrictive covenants contained within his Employment Agreement, SALERNO has interfered with these relationships by encouraging SBOP’s referral sources to cut ties with SBOP and to instead refer business to SALERNO and his new employer OPC, and by diverting existing patient referrals and/or patients/clients from SBOP to OPC.
64. SBOP has suffered damages as a direct result of SALERNO’s tortious interference.
WHEREFORE, SBOP demands judgment against SALERNO for:
a. Compensatory damages;
b. Any pre-judgment interest that is recoverable on such damages;
c. Its litigation costs for the bringing of this action; and
d. any other relief this Court deems just and proper under the circumstances.
COUNT VI- UNFAIR AND DECEPTIVE TRADE PRACTICES SBOP sues SALERNO for declaratory relief and damages pursuant to the
Florida Deceptive & Unfair Trade Practices Act (“FDUPTA”) and in support thereof states as follows:
65. SBOP readopts and realleges paragraphs one (1) through thirty-five (35) as though fully set forth herein.
66. Sections 501.211(1) and (2), Fla. Stat., provide for declaratory relief and damages to anyone who has been aggrieved by a violation of FDUPTA, which prohibits unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.
67. SALERNO engaged in unfair trade practices and unfair methods of competition as contemplated by section 501.204 when he used SBOP’s confidential and proprietary information including, but not limited to, SBOP’s customer lists, customer contact information, and other proprietary information, intellectual property and trade secrets to disparage SBOP and to promote SALERNO’s current employers, OPC’s, products, services and company directly to SBOP’s referral sources and customers/patients, causing confusion amongst SBOP’s customers/patients and its referral sources and causing actual harm to SBOP through the loss of business, revenue, profits and goodwill.
68. SBOP is an aggrieved party within the meaning of FDUPTA and has suffered damages, including but not limited to loss of business, revenue, profits, goodwill, reputation, and other items to be proven at trial.
WHEREFORE, SBOP prays that the Court enter judgment and temporary and/or permanent injunctive relief in its favor against SALERNO as follows:
a. Enjoining SALERNO from being part of any orthotic or prosthetic business competitive with SBOP’s sales business in the Restricted Territory;
b. Enjoining SALERNO from directly or indirectly soliciting from any of SBOP’s customers or attempting to divert business from SBOP to OPC or another business;
c. Enjoining SALERNO from directly, or indirectly in concert with others, communicating with, calling on or making presentations to SBOP’s customers with the intent of diverting or attempting to divert business from SBOP to SALERNO or OPC or any other competitor in the Restricted Territory;
d. Enjoining SALERNO from covering surgical cases within the Restricted Territory for any other orthotic or prosthetic company that is competitive with SBOP’s business operations;
e. Enjoining SALERNO from disclosing to third parties or using Plaintiff’s confidential information in any way to assist SALERNO, OPC, or those persons acting in concert with SALERNO or OPC, from competing with SBOP;
f. Requiring SALERNO to provide a list of names and contact information of all patients or referrals he diverted away from SBOP to OPC or any other business both before and after his resignation from SBOP;
g. Requiring SALERNO to provide an accounting of all revenue, commissions, or other forms of payment, regardless of the form, he has received from OPC as a result of diverting customers or referrals from SBOP to OPC or any other business.
h. Requiring SALERNO to provide a list of all referral sources he frequented while employed by SBOP that he has attempted to persuade to stop doing business with SBOP and instead do business with SALERNO and/or OPC;
a. Awarding SBOP compensatory damages;
b. Awarding SBOP its attorneys’ fees and costs, and
c. Such other relief as this Court deems just and proper under the circumstances.
SBOP sues SALERNO for Conversion and in support thereof states as follows:
69. SBOP readopts and realleges paragraphs one (1) through thirty-five 35) as though fully set forth herein.
70. During his employment with SBOP, SALERNO converted to his own use the corporate credit cards of SBOP to make unauthorized charges for personal expenses in the amount of several thousands of dollars.
71. The unauthorized charges included, but are not limited to, the following:
a. On May 25, 2019, a Saturday, SALERNO used the corporate credit card at a Shell Gas Station in Port St. Lucie ($7.48), City Limits Sports Bar in Port St Lucie ($26.02) and Cumberland Farms Gas Station in Port St. Lucie ($17.32). (Exhibit J).
b. On June 6, 2019, SALERNO used the corporate credit card at the Draft Sports Bar and Grill at Westgate Lakes Resort in Orlando, FL in the amount of $90.03. (Exhibit J).
c. SALERNO made multiple unauthorized charges with GEICO on the corporate credit card during his employment. These charges were also unauthorized personal expenses charged to the company in violation of the Corporate Credit Card Policy. (See Exhibit K).
72. These purchases were made on days SALERNO was not working and on a weekend day, or while on vacation/on days requested off from work. They were unauthorized personal expenses charged to SBOP.
73. Demand was made for repayment but to date no repayment has been made.
WHEREFORE, SBOP demands judgment against SALERNO and requests that this Court:
a. Enter judgment in its favor against SALERNO;
a. Award SBOP damages for conversion;
b. Award any pre-judgment interest that is recoverable on such amounts;
d. Award SBOP’s costs incurred in this action, including reasonable attorneys’ fees; and
e. any other relief this Court deems just and proper under the circumstances.
(in the alternative)
SBOP sues SALERNO for Unjust Enrichment
and in support thereof states as follows:
74. SBOP readopts and realleges paragraphs one (1) through thirty-five (35) as though fully set forth herein.
75. SBOP conferred myriad benefits upon SALERNO, including payment of tens of thousands of dollars in compensation (salary and bonuses), use of a corporate vehicle, use of corporate credit cards, corporate cell phone, and other items.
76. SALERNO was aware of these benefits and knowingly and voluntarily accepted and retained such benefits.
77. SALERNO did so while acting against SBOP, before and after his resignation, and while violating his employment agreement, and committing other acts harmful to SBOP.
78. It would be inequitable for SALERNO to retain these benefits without providing adequate consideration to SBOP.
WHEREFORE, SBOP demands judgment against SALERNO and requests that this Court:
a. Enter judgment in its favor against SALERNO;
b. Award SBOP damages for unjust enrichment;
c. Award any pre-judgment interest that is recoverable on such amounts;
d. Award SBOP’s costs incurred in this action, including reasonable attorneys’ fees; and
e. any other relief this court deems just and proper under the circumstances.
SBOP and SELLECK are entitled to a jury trial pursuant to the Florida Constitution as well as the 7th Amendment to the U.S. Constitution. WHEREFORE, SBOP and SELLECK request a trial by jury on all issues so triable.
I HEREBY CERTIFY that on March 15, 2021, a true and correct copy of the foregoing was e-filed and e-served, via the e-filing portal, on James A. Gale, Esq. and Jonathan E. Gale, Esq., COZEN O’CONNOR.
CROUSER LAW, P.A.
Attorneys for Defendants
3201 WEST COMMERCIAL BOULEVARD SUITE 212
FORT LAUDERDALE, FL 33309
By: __/s/ HENRY R CROUSER_______ HENRY R. CROUSER, ESQ.
FBN: 912891