Taubenfeld v. Lasko

• Citation: 324 So.3d 529
• Decision Date: 11 August 2021
• Docket Number: No. 4D20-1362,4D20-1362
• Parties: Harry TAUBENFELD, as shareholder of Passover FB., Inc., Appellant, v. Jonathan LASKO, Samuel Lasko, Arlene Lasko, Avi Lasko, and Lasko Getaways, LLC., Appellees.
• Court: Florida District Court of Appeals

324 So.3d 529

Harry TAUBENFELD, as shareholder of Passover FB., Inc., Appellant,

v.Jonathan LASKO, Samuel Lasko, Arlene Lasko, Avi Lasko, and Lasko Getaways, LLC., Appellees.

No. 4D20-1362

District Court of Appeal of Florida, Fourth District.

[August 11, 2021]

Donna Greenspan Solomon of Solomon Appeals, Mediation & Arbitration, Fort Lauderdale, and Mark R. Osherow of Osherow, PLLC, Boca Raton, for appellant.

Adam M. Schachter, Gerald E. Greenberg, Freddy Funes, and Mikayla Espinosa of Gelber Schachter & Greenberg, P.A., Miami, for appellees.

Gross, J. Harry Taubenfeld appeals a final order dismissing his Fourth Amended Complaint with prejudice. The complaint contained claims against various defendants arising out of a business dispute involving a closely-held corporation. We reverse the circuit court's dismissal of the Fourth Amended Complaint and a certain count in the Second Amended Complaint, holding that Taubenfeld stated causes of action for breach of fiduciary duty, aiding and abetting breach of fiduciary duty, conversion, and aiding and abetting conversion.

Background

Harry Taubenfeld and Jonathan Lasko ("Jonathan") are each 50% shareholders of Passover FB, Inc. The essence of the Fourth Amended Complaint is that Jonathan, with the assistance of his family, froze Taubenfeld out of Passover FB and transferred its assets to a new entity, Lasko Gateways, LLC.

The operative complaint's allegations, which must be accepted as true for the purposes of this appeal, reveal the following facts.

Passover FB was incorporated in 2010 and did business under the name Lasko Kosher Getaways. Passover FB's principal business was holding high-end getaways at luxury hotels during Passover holidays.

There was no shareholder agreement between Jonathan and Taubenfeld. No bylaws existed for Passover FB. The shareholders of Passover FB never elected any directors.

From the corporation's inception in 2010 until late 2017, Taubenfeld was the president of Passover FB, running its business operations. Jonathan served as vice president, overseeing the day-to-day matters and providing advice about the business's expenditures. Jonathan appointed his father, Sam Lasko, his mother, Arlene Lasko, and his brother, Avi Lasko, to serve "as employees of Passover [FB] and/or as an agent of Jonathan in his capacity as a senior officer of Passover FB."

For several years prior to Passover FB's incorporation in 2010, Sam and Arlene held annual Passover events through Lasko Family Kosher Tours, Inc. ("Lasko Tours"). By the end of the 2010 Passover season, however, Sam and/or Lasko Tours were in debt in excess of $2,000,000. At that point, Taubenfeld rescued the business by agreeing to become a 50% owner of the new corporation, Passover FB, which assumed some of Lasko Tours’ outstanding debt and took ownership of all its assets.

The relationship between Taubenfeld and Jonathan soured in 2017. Around this time, American Express obtained a judgment confirming an arbitration award against Taubenfeld for over $750,000. The award stemmed from another Taubenfeld-owned corporation's unpaid credit card bill, which Taubenfeld had personally guaranteed. Taubenfeld sought indemnification from Passover FB, claiming that the expenditures on this credit card were incurred on Passover FB's behalf.

On December 1, 2017, Jonathan "usurped the office of President of Passover FB" and intentionally took over sole management of Passover FB. Jonathan made "all strategic and operational business decisions of Passover FB, effectively ousting [Taubenfeld] as the President of Passover FB and assuming sole responsibility for all of Passover FB's business operations." Furthermore, Arlene "formed Lasko Getaways as a Florida Limited Liability Company on December 1, 2017, with the purpose of diverting Passover FB's assets to Lasko Getaways." Arlene and Avi were the managing members of Lasko Getaways.

During the week of December 11, 2017, Taubenfeld's personal bank accounts were frozen due to a writ of garnishment issued in the American Express lawsuit. Taubenfeld contacted Sam to arrange to receive his paycheck manually. Sam falsely accused Taubenfeld of stealing $300,000 from Passover FB. Sam demanded that Taubenfeld sign a transfer agreement regarding Taubenfeld's ownership in Passover FB before payment of his salary would be authorized.

On February 2, 2018, Taubenfeld's attorney sent Jonathan a demand letter, accusing the Laskos of various wrongdoing and insisting that, among other things, all assets be returned to Passover FB. Litigation ensued.

The Fourth Amended Complaint

Taubenfeld filed the Fourth Amended Complaint as a derivative action on behalf of Passover FB against Jonathan, Sam, Arlene, Avi, and Lasko Getaways ("the Lasko Defendants"). The complaint alleged that on December 1, 2017, Passover FB's assets consisted of: (1) advantageous business relationships with venues in Miami Beach and Aventura; (2) an advantageous business relationship with the founder of JM Food Design; (3) a contractual relationship with TB Isle Resort d/b/a Turnberry Isle Miami, the venue for the 2018 Passover Event; (4) goodwill, with an estimated value of over $4,500,000, "developed over more than twenty-five (25) years associated with the Lasko name and owned exclusively by Passover FB since the formation of Passover FB in 2010"; (5) confidential customer lists, advertising relationships, catering contracts, and business history; (6) hard assets, including five tractor-trailers and their contents; (7) intellectual property consisting of websites; (8) records, bank accounts, and software; and (9) cash and cash equivalents.

The Fourth Amended Complaint contained five counts:

1. Breach of fiduciary duty against Jonathan.

2. Aiding and abetting breach of fiduciary duty against Sam.

3. Aiding and abetting breach of fiduciary duty against Arlene.

4. Aiding and abetting breach of fiduciary duty against Avi.

5. Conversion against Lasko Getaways.

Count 1

Count 1 alleged that Jonathan "breached his fiduciary duty to Passover FB" and "directly caused Passover FB's Passover Business to decay, be wasted and become nonexistent." Count 1 claimed that Jonathan owed "a fiduciary duty to Passover FB to perform his duties of managing all of the business operations of the company in the best interests of Passover FB." Count 1 further alleged that Jonathan engaged in multiple acts, described in 15 lettered paragraphs, all of which involved the transfer of Passover FB's assets and business to Lasko Getaways.

Count 1 further alleged that the specified acts constituted a breach of Jonathan's fiduciary duty to Passover FB. For example, Count 1 alleged that "as an officer of Passover FB Jonathan breached one or more of the three basic fiduciary duties — duty of loyalty, duty of care and duty of good faith — to Passover FB." Finally, Count 1 alleged that as a result of Jonathan's breaches of his fiduciary duties, "Passover FB has been substantially damaged in that the assets of Passover FB valued well in excess of more than $4,500,000.00 as of December 1, 2017, were wasted and dissipated to a nominal, if any, value."

Count 2

Count 2 alleged that Passover FB had been damaged as a result of "Sam's aiding and abetting Jonathan's breach of his fiduciary duty to Passover FB." According to Count 2, "Sam was well aware that Jonathan's directing the transferring of the assets of Passover FB to Lasko Getaways would constitute corporate waste of Passover FB's assets and Jonathan's breach of fiduciary duty to Passover FB." Nonetheless, "Sam encouraged Jonathan to form Lasko Getaways and to convert the assets of Passover FB ... to assets of Lasko Getaways by emphasizing to Jonathan that Sam [had] founded Lasko Getaways almost thirty (30) years prior to December 1, 2017, and only the Lasko family should own and operate the Passover business that had been continuously owned by Passover FB since 2010."

In seven paragraphs, Count 2 described the acts that assisted Jonathan's breach of fiduciary duty, including "[p]articipating in the removal of five tractor-trailers and their contents" and "[s]peaking with clients and potential clients of Passover FB to divert the client's business relationship or potential business relationship with Passover FB to Lasko Getaways."

Count 3

Count 3 alleged that Passover FB had been damaged as a result of "Arlene's aiding and abetting Jonathan's breach of his fiduciary duty to Passover FB." According to Count 3, "Arlene knew that Jonathan's directing the transferring of the assets of Passover FB to Lasko Getaways would constitute corporate waste of Passover FB's assets and Jonathan's breach of Jonathan's fiduciary duty to Passover FB." Nonetheless, "Arlene not only encouraged Jonathan to form Lasko Getaways, but actually formed Lasko Getaways as a Florida limited liability company on December 1, 2017, with the purpose of diverting Passover FB's assets to Lasko Getaways."

In eight paragraphs, the complaint specified acts that assisted Jonathan's breach of fiduciary duty to Passover FB, including (1) telling "vendors, venues, entertainers, professional speakers, Rabbis and other persons under contract" that Passover FB had changed its name to Lasko Getaways and that "Lasko Getaways was the proper business entity" under existing contracts, and (2) diverting revenue due to Passover FB by endorsing checks payable to Passover FB and directing the proceeds to Lasko Getaways.

Count 4

Count 4 alleged that Passover FB had been damaged as a result of "Avi's aiding and abetting Jonathan's breach of his fiduciary duty to Passover FB." According to Count 4, "Avi knew that Jonathan's directing the transferring of the assets of Passover FB to Lasko Getaways and Avi's assistance in accomplishing that goal would constitute corporate waste of Passover FB's assets and Jonathan's breach of Jonathan's fiduciary duty to Passover FB."

In five paragraphs, the complaint described conduct of Avi that assisted Jonathan's breach of fiduciary duty to...