Moore v. TMH Complaint and Answer

Case 4:09-cv-00273-RH-WCS Document 1 Filed 07/29/2009 Page 1 of 7

Case 4:09-cv-00273-RH-WCS Document 1-2 Filed 07/29/2009 Page 1 of 7
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
DUNCAN MOORE, )
)
Plaintiff, )
) Case No.: 4:09-CV-273-RH/WCS
vs. )
)
TALLAHASSEE MEMORIAL HEALTHCARE, )
INC., a Florida non-profit corporation, )
)
Defendant.
/
ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM
Defendant, Tallahassee Memorial HealthCare, Inc. (“TMH”), by and through undersigned
counsel, submits its Answer and Affirmative Defenses to the Complaint, and its Counterclaim, as
follows:
ANSWER
1. Admitted for jurisdictional purposes only and otherwise denied.
2. Admitted for jurisdictional purposes only and otherwise denied.
3. Denied that Plaintiff served as President and Chief Executive Officer (“CEO”) of
TMH from January 29, 1988 until June 23, 2003. Without knowledge sufficient to admit or deny
the allegations contained in the second sentence of paragraph 3, therefore, denied.
4. The first sentence is admitted. The second sentence is admitted for jurisdictional
purposes only and otherwise denied.
5. Admitted for purposes of venue only and otherwise denied.
6. Admitted.
7. Admitted that at some time around October of 1998, TMH and Moore agreed to
amend the 1988 Employment Agreement. Denied that the document attached to the Complaint as
Exhibit “B” is a true and complete copy of the 1998 Employment Agreement.
8. Admitted that the 1998 Employment Agreement, among other things, provided for
retirement benefits for Moore, and that paragraph 8 of the Complaint accurately quotes a portion of
the language thereof. Denied that the quoted language provides a complete description of the
retirement benefits provided by the 1998 Employment Agreement or agreed upon by TMH and
Moore or that it is legally valid.
9. Admitted that said attachment is a portion of a TMH Board of Directors resolution,
but denied that the attachment to the Complaint is a complete document.
10. Admitted that Moore and TMH executed a document dated October 22, 2000, a
copy of which is attached to the Complaint as Exhibit “C” (“2000 Employment Agreement”), but
denied that Exhibit “C” represents the complete agreement between Moore and TMH or that it is
legally valid. Admitted that the language regarding Moore’s retirement benefits in the 2000
Employment Agreement was changed from the language in the 1998 Employment Agreement. The
remainder of the allegations contained in paragraph 10 are denied.
11. Admitted that the 2000 Employment Agreement describes a portion of an
“employee pension benefit plan,” as that term is defined at 29 U.S.C. § 1002 (2)(A), established and
maintained by TMH, and that TMH acted as the Plan Administrator for any plan that is found to
exist. Denied that the 2000 Employment Agreement is a complete or accurate description of that
“employee pension benefit plan.”
12. Admitted that the 2000 Employment Agreement contained provisions entitling
Moore to certain retirement benefits and severance payments if he resigned for good reason or was
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terminated without cause prior to the expiration of his employment term. Denied that the 2000
Employment Agreement reflected the actual and complete agreement between the parties or that it
is legally valid. Further denied that subparagraphs 12(a) and (b) of the Complaint accurately reflect
the substance of the 2000 Employment Agreement. The remainder of the allegations contained in
paragraph 12 are also denied.
13. Admitted that the 2000 Employment Agreement contains a provision entitled “Base
Compensation” and that paragraph 13 of the Complaint accurately quotes the language thereof.
The remainder of the allegations are denied.
14. Admitted that the parties executed an agreement entitled “Agreement Regarding
Early Retirement and Termination of Employment” (“Retirement Agreement”) which is attached to
the Complaint as Exhibit “D.” The remainder of the allegations are denied.
15. Admitted that paragraph 15 of the Complaint accurately quotes language from the
Retirement Agreement. With regard to the specific language, the document speaks for itself.
16. Admitted that paragraph 16 of the Complaint accurately quotes language from the
Retirement Agreement. With regard to the specific language, the document speaks for itself.
17. Admitted that Moore retired effective June 23, 2003, and that Moore became
entitled to certain retirement benefits and severance payments at that time. The remainder of the
allegations contained in paragraph 17 are denied.
18. Admitted that immediately following Moore’s retirement, TMH began making bi-
weekly payments to Moore. The remainder of the allegations contained in paragraph 18 are denied.
19. Admitted that, subsequent to Moore’s retirement, TMH reduced the initial payments
to Moore. Admitted that TMH announced this change by letter to Moore dated May 10, 2004, and
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that a copy (without its attachments) is attached to the Complaint as Exhibit “E.” The remainder of
the allegations contained in paragraph 19 are denied.
20. Denied that TMH created the plan reflected in the document attached to the
Complaint as Exhibit “F” on or about April 21, 2004. Admitted that the document attached to the
Complaint as Exhibit “F” sets forth the plan of TMH which was created in 1998.
21. Admitted that the document attached to the Complaint as Exhibit “F” (“2004
SERP”) defines Moore’s retirement benefits, and that TMH reduced payments to Moore in May of
2004 (as reflected in the letter attached to the Complaint as Exhibit “G”). The remainder of the
allegations contained in paragraph 21 are denied.
22. Admitted that, on or about November 10, 2005, Moore made a claim on TMH for
retirement benefits under the 2000 Employment Agreement, and said claim is attached to the
Complaint as Exhibit “H.” Denied that Exhibit “H” includes any claim for severance benefits under
the Retirement Agreement. The remainder of the allegations contained in paragraph 22 are denied.
23. Admitted that by letter dated May 21, 2006, TMH conveyed to Moore its decision
concerning Moore’s claim for benefits and that said letter of decision is attached to the Complaint as
Exhibit “I.” The remainder of the allegations contained in paragraph 23 are denied.
24. Admitted.
25. Admitted.
26. Admitted.
27. Without knowledge sufficient to admit or deny, therefore, denied.
COUNT I
28. The Defendant’s responses in paragraphs 1 through 27 above are incorporated
herein.
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29. Denied.
30. Denied.
31. Denied.
32. Denied.
33. Denied that Moore has fulfilled the condition precedent of exhaustion of
administrative remedies with regard to any claims for severance payments. The remainder of the
allegations in paragraph 33 are admitted with regard to any claim for retirement benefits.
34. All allegations contained in Plaintiffs’ Complaint that are neither admitted nor
denied herein are hereby denied.
DEFENSES
FIRST DEFENSE
(No Violation of Law)
The Defendant’s actions in determining the benefits payable to Plaintiff were in all respects
proper and consistent with applicable law and regulation.
SECOND DEFENSE
(Reasonable Interpretation)
Defendant’s determination of benefits payable to Plaintiff was a proper and reasonable
interpretation and application of the Supplemental Employee Retirement Plan (“SERP”), and was
not arbitrary and capricious.
THIRD DEFENSE
(Breach of Fiduciary Duty)
If at the time Moore entered into the 1998 Employment Agreement, the 2000 Employment
Agreement and the Retirement Agreement, he understood the language regarding “. . . the total
salary and benefits submitted . . . on the required IRS 990 Forms” to have the meaning he now
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claims, Moore, as President and CEO of TMH, breached his fiduciary duty to TMH when he
entered into those agreements and said agreements are therefore invalid.
FOURTH DEFENSE
(Fraudulent Inducement)
Moore fraudulently induced TMH to enter into the 1998 Employment Agreement. Such
fraudulent inducement renders that agreement or portion thereof, and the 2000 Employment
Agreement as modified by the Retirement Agreement, which were based on the 1998 Employment
Agreement, subject to reformation by this court. Moore, as the President and CEO of TMH, drafted
the 1998 Employment Agreement and represented to members of the Board of Directors (“Board”)
that the language regarding “. . . the total salary and benefits submitted . . . on the required IRS 990
Forms” served two purposes. In a letter dated September 24, 1998, he stated that the contract would
reflect “the recent retirement plan expansion awarded by the Compensation Committee” and that
such a change was “made necessary by the fact that in reporting the compensation of me . . . as
required by the Internal Revenue Service my compensation is allocated among three different TMH
corporations and is reported in component parts.” If the language regarding “. . . the total salary and
benefits submitted . . . on the required IRS 990 Forms” is found to include benefits that the
appropriate members of the Board had not discussed or approved, including post-retirement
benefits, or does not include an offset, Moore’s representations as to the basis and the reasons for
the new definition of “compensation” were false and he either knew they were misrepresentations,
or should have known they were misrepresentations. Moore, as the President and CEO of TMH,
intended to induce members of the Board to accept his representations regarding the new language
and such representations were false. The members of the Board justifiably accepted and relied on
Moore’s status as a fiduciary of TMH and on Moore’s representations that the language he drafted
accurately reflected the plan that it had approved. The members of the Board did not intend to
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materially modify the retirement benefits approved in 1998 when the 2000 Employment Agreement
and the Retirement Agreement were executed, and therefore the pertinent language in those
agreements is also based on Moore’s fraudulent inducement. If the language regarding “. . . the
total salary and benefits submitted . . . on the required IRS 990 Forms” is found to have the meaning
propounded by Moore, then TMH suffers damages by having to pay him additional benefits and
such agreements should be reformed.
FIFTH DEFENSE
(Fraudulent or Negligent Omissions of Contract Language)
If the language regarding “. . . the total salary and benefits submitted . . . on the required IRS
990 Forms” is found to have the meaning that Moore now claims, Moore either fraudulently or
negligently failed to inform the Board of Directors of TMH of the financial impact of the 1998
Employment Agreement. Moore, as the President and CEO of TMH, had a duty to disclose the
meaning of that Agreement, to ensure that the Agreement accurately stated what the Compensation
Committee had authorized, and to ensure that any contract into which he entered with TMH was fair
and in the best interest of the corporation. Such omissions render that agreement, and subsequent
agreements based on the same omissions, subject to reformation by this court.
SIXTH DEFENSE
(Fraudulent or Negligent Omission of Financial Information)
If “Base Compensation” is found to have the definition that he now claims, Moore either
negligently or fraudulently omitted to inform the Board of Directors of TMH of the financial impact
of the 2000 Employment Agreement and Retirement Agreement. Moore, as the President and CEO
of TMH, had a duty to disclose the full financial impact of his retirement benefit, to ensure that the
Agreement accurately stated what the Compensation Committee had authorized, and to ensure that
any contract into which he entered with TMH was fair and in the best interest of the corporation.
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TMH had a relationship with Moore based on trust and confidence. Moore did not accurately or
fully inform the Board members of the changes between the 1998 Employment Agreement and
the 2000 Employment Agreement, and in particular of the impact of the removal of the reference
to the Compensation Committee minutes and attachments. Unless at the time of contracting
Moore was also mistaken as to the financial consequences of the changes he made, then he knew
or should have known what the Board understood those consequences to be, and under his duty
of disclosure, he should have informed TMH’s directors of the changes he was making. Such
omissions render the agreements subject to reformation by this court.
SEVENTH DEFENSE
(Mutual Mistake)
Mutual mistakes regarding the meaning of the language “. . . the total salary and benefits
submitted . . . on the required IRS 990 Forms” in the 1998 Employment Agreement and the
definitions of “Base Compensation” and “Benefits” in the 2000 Employment Agreement require
that the 1998 Employment Agreement and 2000 Employment Agreement, as modified by the
Retirement Agreement, be reformed to express the agreement between Moore and TMH.
EIGHTH DEFENSE
(Unilateral Mistake)
TMH made unilateral mistakes in the 1998 Employment Agreement regarding the meaning
of the language “. . . the total salary and benefits submitted . . . on the required IRS 990 Forms,” and
regarding the definition of “Base Compensation” in the 2000 Employment Agreement, as modified
by the Retirement Agreement. The meaning of those terms, and the financial consequences thereof,
were basic assumptions on which the 1998 Employment Agreement and the 2000 Employment
Agreement and Retirement Agreement were entered into and the effects of the mistakes are such
that enforcement of the contract would be unconscionable, or Moore, as President and CEO of
TMH, had reason to know of the mistake or his fault caused the mistake. TMH is entitled to
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rescind the 1998 Employment Agreement, and the 2000 Employment Agreement and the
Retirement Agreement, or such parts of those agreements as were affected by the mistakes.
NINTH DEFENSE
(Failure to State a Cause of Action)
The Complaint fails to state a cause of action against TMH upon which relief can be
granted, because Plaintiff failed to attach a complete copy of one of the operative agreements, the
1998 Employment Agreement.
TENTH DEFENSE
(Equitable Defenses)
Plaintiff’s claims are barred, in whole or in part, by the doctrines of waiver, acquiescence,
ratification, laches, and/or estoppel.
ELEVENTH DEFENSE
(Exhaustion of Remedies)
Plaintiff failed to exhaust his administrative remedies with regard to any claims he may
be asserting, and failed to adequately participate and/or cooperate in the administrative process
which was required under ERISA to determine the benefits to which Moore is entitled.
TWELFTH DEFENSE
(Payment)
TMH asserts the defense of payment and is entitled to an offset against any additional or
back retirement benefits that may be found to be due Moore, because it paid Moore an excess
amount of retirement and severance benefits between June of 2003 and June of 2006.
THIRTEENTH DEFENSE
(Failure to Mitigate)
Plaintiff failed to mitigate his damages, if any.
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FOURTEENTH DEFENSE
(Statute of Limitations)
Plaintiff’s claim is barred in whole or in part by the applicable statute of limitations.
FIFTEENTH DEFENSE
(Fraud or Illegality)
Plaintiff’s claim is barred in whole or in part by the doctrine of Unclean Hands, because
Plaintiff engaged in fraud or illegality in the negotiation of any retirement benefits set forth in the
1998 Employment Agreement, the 2000 Employment Agreement, and the Retirement Agreement.
SIXTEENTH DEFENSE
(Other Defenses)
TMH reserves the right to amend its answer to assert additional defenses that may become
available or appear during the proceedings in this case, and also reserves the right to assert other and
related defenses as may become available.
COUNTERCLAIM
Pursuant to Rule 13(a), Fed. R. Civ. P., defendant/counter-plaintiff Tallahassee Memorial
HealthCare, Inc. (“TMH”) asserts the following counterclaims against plaintiff/counter-
defendant Duncan Moore (“Moore”).
Allegations Applicable to All Counts
1. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.
sec. 1367(a).
2. Moore held the positions of President and Chief Executive Officer (“CEO”) of
TMH from July 1, 1988 until June 23, 2003.
3. Moore and TMH entered into an employment agreement effective January 29,
1988, a copy of which is attached hereto as Exhibit “1” (“1988 Employment Agreement”).
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4. At all times relevant to this action, Moore, as President and CEO, was a fiduciary
of TMH and owed TMH the duties of, inter alia, full disclosure and fair dealing with regard to
the contracts he entered into with TMH.
5. At all times relevant to this action, all the members of TMH’s Board of Directors
served on a volunteer basis and did not receive any salary for such service.
6. At all times relevant to this action, the members of TMH’s Board of Directors
were entitled to rely on the completeness and accuracy of the information provided by Moore,
especially when he was entering into contracts with TMH.
7. At some time in or around early 1998, Moore requested that TMH institute a
supplemental executive retirement plan for himself and several other senior executives. To that
end, he put members of TMH’s Board of Directors (“Board”) in contact with a compensation
consultant named Paul Flood (“Flood”).
8. Flood met with members of the Board on multiple occasions and presented them
with suggested options for such a plan, and potential financial consequences of those options.
On September 9, 1998, the Board approved the creation of a “Supplemental Executive
Retirement Plan” (“SERP”).
9. On or about October 22, 1998, TMH and Moore executed another employment
agreement, a copy of which is attached hereto as Exhibit “2” (“1998 Employment Agreement”).
The minutes from the September 9, 1998 meeting approving the creation of a SERP are attached
to and incorporated by reference into the 1998 Employment Agreement. Points and explanations
that Flood had presented to members of the Board are attached to and incorporated by reference
into said minutes.
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10. When TMH and Moore executed the 1998 Employment Agreement, members of
the Board had considered and authorized a SERP that would give Moore a SERP “target” of 65
percent of salary at 15 years of employment.
11. At the time Moore executed the 1998 Employment Agreement, he was aware of
what information members of the Board had reviewed and what SERP benefits they had
authorized. He was also aware of what amounts were being reported to the IRS on TMH’s Form
990.
12. The 1998 Employment Agreement was drafted by Moore or with language
provided by him and under his direction and supervision.
13. If the language regarding “. . .the total salary and benefits submitted . . . on the
required IRS 990 Forms” is found to have the meaning that Moore now claims, Moore either
fraudulently or negligently failed to inform the Board of Directors of TMH of the financial impact
of the 1998 Employment Agreement. Moore, as the President and CEO of TMH, had a duty to
disclose the meaning and financial impact of that Agreement, to ensure that the Agreement
accurately stated what the Compensation Committee had authorized, and to ensure that any contract
into which he entered with TMH was fair and in the best interest of the corporation.
14. Moore, as the President and CEO of TMH, drafted the 1998 Employment
Agreement and represented to members of the Board of Directors (“Board”) that the language
regarding “. . .the total salary and benefits submitted . . . on the required IRS 990 Forms” served two
purposes. In a letter dated September 24, 1998, which letter accompanied a draft of the 1998
Employment Agreement that was created at the direction of Moore, Moore stated that the change
would link the contract to “the recent retirement plan expansion awarded by the Compensation
Committee” and that such a change was “made necessary by the fact that in reporting the
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compensation of me…as required by the Internal Revenue Service my compensation is allocated
among three different TMH corporations and is reported in component parts.” A true and correct
copy of said letter and draft are attached hereto as Exhibit “3.”
15. If the language regarding “. . .the total salary and benefits submitted . . . on the
required IRS 990 Forms” is found to include benefits that the appropriate members of the Board had
not discussed or approved, including post-retirement benefits, or does not include the offset required
to meet the benefit target of 65 percent of salary, Moore’s representations as to the basis and the
reasons for the new definition of “compensation” were false and he either knew they were
misrepresentations, or should have known they were misrepresentations. Moore, as the President
and CEO of TMH, intended to induce members of the Board to accept his representations regarding
the new language and such representations were false.
16. The members of the Board justifiably accepted and relied on Moore’s status as a
fiduciary of TMH and on Moore’s representations that the language he drafted accurately reflected
the plan that it had approved.
17. On or about October 22, 2000, TMH and Moore executed yet another
employment agreement, a copy of which is attached hereto as Exhibit “4” (“2000 Employment
Agreement”).
18. The members of the Board did not intend to materially modify the retirement
benefits approved in 1998 when the 2000 Employment Agreement was executed.
19. When TMH and Moore executed the 2000 Employment Agreement, TMH’s
Board had not authorized any change in the calculation of Moore’s SERP benefits, and Moore
provided Board members with reasons for the change in relevant language from the 1998
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Employment Agreement that hid that he was expanding or attempting to expand his future SERP
benefits.
20. The 2000 Employment Agreement was drafted with language provided by Moore
and at his direction.
21. Moore did not discuss with the Board or any of its members the financial impact
of removing the September 1998 minutes, and the attachments thereto, as part of his
Employment Agreement.
22. If “Base Compensation” is found to have the definition that he now claims, Moore
either negligently or fraudulently omitted to inform the Board of Directors of TMH of the financial
impact of the 2000 Employment Agreement. Moore, as the President and CEO of TMH, had a duty
to disclose the full financial impact of his retirement benefit, to ensure that the Agreement
accurately stated what the Compensation Committee had authorized, and to ensure that any contract
into which he entered with TMH was fair and in the best interest of the corporation. TMH had a
relationship with Moore based on trust and confidence. Moore did not accurately or fully inform
the Board members of any changes in his retirement benefits from the 1998 Employment
Agreement to the 2000 Employment Agreement, and in particular of the impact of the removal
of the reference to the Compensation Committee minutes and attachments.
23. Prior to his termination, Moore did not apprise the Board’s members of or discuss
with them the financial implications of his interpretation of his SERP benefits, even though he
knew what financial projections Flood had provided to the Board in 1998 and knew that those
were the only relevant financial projections with which the Board had been provided.
24. Moore executed audit letters every year that he was President and CEO of TMH
indicating, inter alia, that he had made available to the auditors all financial records and related
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data; that there were no material agreement that had not been properly recorded in the accounting
records; and that all liabilities of TMH of which he was aware were included in the consolidated
financial statements.
25. Despite his execution of the aforementioned audit letters, Moore did not make
copies of the 1998 Employment Agreement, the 2000 Agreement, or the Retirement Agreement
available to TMH’s auditors, even though by the time those agreements were executed, any
SERP benefits to which he is entitled were vested.
26. Moore and TMH agreed that Moore would retire effective June 23, 2003.
Pursuant to that agreement, on or about January 29, 2003, Moore and TMH executed an
“Agreement Regarding Early Retirement and Termination of Employment” (“Retirement
Agreement”), a copy of which is attached hereto as Exhibit “5.”
27. The members of the Board did not intend to materially modify the retirement
benefits approved in 1998 when the Retirement Agreement was executed, and TMH’s Board did
not authorize any change in the calculation of Moore’s annual SERP benefits.
28. Moore did retire from TMH effective June 23, 2003. Beginning July 3, 2003,
TMH began making bi-weekly retirement and severance payments to Moore. Initially, TMH
made such bi-weekly payments in the amount of $23,936.04.
29. Effective beginning with the payment made May 21, 2004, and as explained in a
letter to Moore dated May 10, 2004, a copy of which is attached hereto as Exhibit “6,” TMH
reduced that amount to $21,653.85, minus $912.88 that it claims it was owed for overpayments
made from June 23, 2003 until said date.
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30. On or about April 21, 2004, TMH re-codified the “Tallahassee Memorial
HealthCare, Inc. Supplemental Executive Retirement Plan” (“Restated SERP”) that it had
adopted in September of 1998, a copy of which is attached hereto as Exhibit “7.”
31. Effective June 23, 2006, when the three-year severance period contemplated by
the 2003 Retirement Agreement ended, TMH began paying Moore $219,400.00 per year in
SERP benefits, at the rate of $18,283.30 monthly.
32. By letter dated November 10, 2005, Moore claimed additional retirement benefits
under the 2000 Employment Agreement, a copy of which letter is attached as Exhibit “8”
(“Claim Letter”). Although TMH invited Moore to attend hearings on his claim and to submit
evidence, Moore neither submitted evidence that would support his interpretation, beyond copies
of the 2000 Employment Agreement and the Retirement Agreement, nor did he appear in person
or even submit an affidavit.
33. By letter dated May 21, 2006, TMH informed Moore of its decision regarding his
Claim Letter. A copy of that May 21, 2006 letter (“Claim Decision”) is attached hereto as
Exhibit “9.”
34. By letter dated August 7, 2006, a copy of which is attached hereto as Exhibit “10”
(“Appeal Letter”), Moore appealed TMH’s decision as set forth in the Claim Decision. Although
TMH invited Moore to attend hearings on his appeal and to submit any evidence that was not
already in the administrative record, Moore neither submitted evidence that would support his
interpretation, beyond copies of the employment agreements and the Retirement Agreement, nor
did he appear in person or even submit an affidavit.
35. By letter dated May 15, 2007, a copy of which is attached hereto as Exhibit “11”
(“Appeal Decision”), TMH informed Moore of its decision regarding his Appeal Letter. As set
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forth in the Appeal Decision, TMH concluded that Moore is entitled to $227,596.84 per year in
retirement benefits under the SERP.
36. Upon issuance of the Appeal Decision, TMH began paying Moore at the new rate
of $227,596.84 per year, or $18,966.40 monthly, and also paid Moore the difference between
that amount and the $219,400.00 per year it had been paying him since June 23, 2006 through
the date of the Appeal Decision.
37. Moore has claimed SERP benefits from TMH that exceed, by hundreds of
thousands of dollars per year, any financial projections that were ever presented to TMH’s Board
as representing the financial implications of said benefits.
COUNT I
(Declaratory Relief)
38. Defendant/counter-plaintiff incorporates and realleges as if fully set forth herein
paragraphs 1 through 37 of the counterclaim.
39. There exists a genuine, bona fide dispute between TMH and Moore over the
amount of retirement benefits to which Moore is entitled, and the amount in dispute exceeds
$75,000.00. Declaratory relief is therefore proper pursuant to 28 U.S.C. sec. 2201.
40. TMH asserts that Moore’s interpretation of the language regarding his retirement
benefits in the 1998 Employment Agreement and the 2000 Employment Agreement, as modified
by the Retirement Agreement, is incorrect and unreasonable. TMH respectfully submits that this
Court may and should interpret said language to give effect to the reasonable intent and
expectations of the parties.
41. TMH seeks a declaration from this Court that its interpretation of Moore’s
employment agreements is correct, and that Moore is only entitled to $227,596.84 per year in
SERP retirement benefits.
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WHEREFORE, defendant/counter-plaintiff, TMH, requests that the Court enter a
declaratory judgment in TMH’s favor, declaring that it has correctly determined the amount and
basis of Moore’s SERP retirement benefits in its Appeal Decision, and awarding TMH its costs
and attorneys’ fees incurred as a result of Moore’s claim and this action, pursuant to the 1998
Employment Agreement and the 2000 Employment Agreement as modified by the Retirement
Agreement, and also pursuant to 29 U.S.C. sec. 1132(g)(1).
COUNT II
(Rescission)
43. This is a claim against Moore for rescission of the 2000 Employment Agreement
as modified by the Retirement Agreement, and of the 1998 Employment Agreement, or at least
the portions thereof that affect Moore’s retirement benefits.
44. The rescission requested is appropriate based on the existence of fraud in the
inducement of the relevant agreements, mutual or unilateral mistake as to the scope and financial
consequences of Moore’s retirement benefits set forth therein, and Moore’s intentional or
negligent omission of material information when obtaining the Board’s agreement to the
language he requested.
45. It would be inequitable for Moore to receive the retirement benefits he now
claims, for all the reasons set forth herein.
46. TMH would not be unjustly enriched if this Court grants the requested relief, as
this Court can reform the operative agreements to comport with the actual and informed
agreement of the parties, or can enforce TMH’s obligations to Moore as governed by an oral
agreement, since Moore is entitled to some retirement benefits under a “top hat plan.” Moreover,
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Moore had no reasonable expectation of receiving the amount of retirement benefits he now
claims.
47. TMH is entitled to a judgment rescinding the 1998 Employment Agreement and
the 2000 Employment Agreement, as modified by the Retirement Agreement, or portions
thereof, so that Moore receives retirement benefits consistent with the anticipated benefits set
forth in the September 1998 minutes and attachments, and consistent with the codification of the
SERP Plan in 2004.
WHEREFORE, defendant/counter-plaintiff TMH requests that, if Moore’s interpretation
of the relevant documents is found to be technically accurate, the Court enter judgment in
TMH’s favor rescinding the SERP terms as expressed in the various employment agreements.
TMH also requests that the Court award TMH its costs and attorneys’ fees incurred as a result of
Moore’s claim and this action, pursuant to the 1998 Employment Agreement and the 2000
Employment Agreement as modified by the Retirement Agreement, and also pursuant to 29
U.S.C. sec. 1132(g)(1).
COUNT III
(Reformation)
49. This is a claim against Moore for reformation of the 2000 Employment
Agreement as modified by the Retirement Agreement, and of the 1998 Employment Agreement
if this Court deems reformation of both agreements appropriate.
50. The reformation requested is appropriate based on the existence of fraud in the
inducement of the relevant agreements, mutual or unilateral mistake as to the scope and financial
consequences of Moore’s retirement benefits set forth therein, and Moore’s intentional or
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negligent omission of material information when obtaining the Board’s agreement to the
language he requested.
51. It would be inequitable for Moore to receive the retirement benefits he now
claims, for all the reasons set forth herein.
52. The 2000 Employment Agreement, as modified by the Retirement Agreement,
should be reformed to remedy the inequities currently present with regard to the calculation of
Moore’s retirement benefits, and to reflect the true and original intent and reasonable
expectations of the parties at the time the contract was entered into.
53. TMH is entitled to a judgment to reform the 2000 Employment Agreement, as
modified by the Retirement Agreement, so that it provides Moore with retirement benefits
consistent with the anticipated benefits set forth in the September 1998 minutes and attachments,
and consistent with the codification of the SERP Plan in 2004.
WHEREFORE, defendant/counter-plaintiff TMH requests that, if Moore’s interpretation
of the relevant documents is found to be technically accurate, the Court enter judgment in
TMH’s favor, reforming the SERP terms as expressed in the various employment agreements to
conform to the SERP approved by the Board in 1998, and as re-codified in 2004. TMH also
requests that the Court award TMH its costs and attorneys’ fees incurred as a result of Moore’s
claim and this action, pursuant to the 1998 Employment Agreement and the 2000 Employment
Agreement as modified by the Retirement Agreement, and also pursuant to 29 U.S.C. sec.
1132(g)(1).
COUNT IV
(Repayment)
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55. If TMH obtains judgment in its favor on Counts I, II, or III of its counterclaim,
then it is entitled to repayment of excessive amounts paid to Moore between June 23, 2003 and
June 23, 2006 (“Severance Period”). Such payments were made based on erroneous
interpretations of the definition of “Base Compensation.”
WHEREFORE, defendant/counter-plaintiff, TMH, requests that the Court enter a
judgment in TMH’s favor, awarding TMH repayment of overpayments to Moore during the
Severance Period, and awarding TMH its costs and attorneys’ fees incurred as a result of
Moore’s claim and this action, pursuant to the 1998 Employment Agreement and the 2000
Employment Agreement as modified by the Retirement Agreement, and also pursuant to 29
U.S.C. sec. 1132(g)(1).
Respectfully submitted this 9th day of October, 2009.
s/ Kenneth R. Hart
KENNETH R. HART
Fla. Bar No. 0192580
RUTH E. VAFEK
Fla. Bar No. 0034220
AUSLEY & McMULLEN
P. O. Box 391
Tallahassee, FL 32302
Telephone: (850) 224-9115
Fax: (850) 222-7560
AND
S. JONATHAN VINE
FBN 0010966
RACHEL BEIGE
FBN 0016366
COLE, SCOTT & KISSANE, P.A.
1645 Palm Beach Lakes Blvd.2nd Floor
W. Palm Beach, FL 33401
Telephone: (561) 383-9203
Fax: (561) 683-8977
Attorneys For Defendant

Tallahassee Memorial
Healthcare, Inc.
21
CERTIFICATE OF SERVICE
I hereby certify that on the 9th day of October, 2009, a copy of the above and foregoing
was filed electronically. Notice of this filing will be sent to the following persons by operation
of the Court’s electronic filing system, facsimile or U.S. mail.
Paul E. Parrish
Stephen H. Grimes
Holland & Knight LLP
100 N. Tampa Street,
Suite 4100
Tampa, Florida 33602
s/ Kenneth R. Hart
Attorney
22

Moore v. TMH Complaint and Answer

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Case 4:09-cv-00273-RH-WCS Document 1 Filed 07/29/2009 Page 1 of 7

Case 4:09-cv-00273-RH-WCS Document 1 Filed 07/29/2009 Page 2 of 7

ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIM

Defendant, Tallahassee Memorial HealthCare, Inc. (“TMH”), by and through undersigned

1. Admitted for jurisdictional purposes only and otherwise denied.

2. Admitted for jurisdictional purposes only and otherwise denied.

the allegations contained in the second sentence of paragraph 3, therefore, denied.

purposes only and otherwise denied.

5. Admitted for purposes of venue only and otherwise denied.

Moore or that it is legally valid.

9. Admitted that said attachment is a portion of a TMH Board of Directors resolution,

but denied that the attachment to the Complaint is a complete document.

remainder of the allegations contained in paragraph 10 are denied.

11. Admitted that the 2000 Employment Agreement describes a portion of an

“employee pension benefit plan.”

paragraph 12 are also denied.

The remainder of the allegations are denied.

Early Retirement and Termination of Employment” (“Retirement Agreement”) which is attached to

allegations contained in paragraph 17 are denied.

the allegations contained in paragraph 19 are denied.

allegations contained in paragraph 21 are denied.

27. Without knowledge sufficient to admit or deny, therefore, denied.

28. The Defendant’s responses in paragraphs 1 through 27 above are incorporated

denied herein are hereby denied.

proper and consistent with applicable law and regulation.

not arbitrary and capricious.

such agreements should be reformed.

agreements based on the same omissions, subject to reformation by this court.

omissions render the agreements subject to reformation by this court.

1998 Employment Agreement.

ratification, laches, and/or estoppel.

related defenses as may become available.

Pursuant to Rule 13(a), Fed. R. Civ. P., defendant/counter-plaintiff Tallahassee Memorial

HealthCare, Inc. (“TMH”) asserts the following counterclaims against plaintiff/counter-

defendant Duncan Moore (“Moore”).

Allegations Applicable to All Counts

TMH from July 1, 1988 until June 23, 2003.

the contracts he entered into with TMH.

especially when he was entering into contracts with TMH.

consultant named Paul Flood (“Flood”).

On September 9, 1998, the Board approved the creation of a “Supplemental Executive

Retirement Plan” (“SERP”).

into said minutes.

percent of salary at 15 years of employment.

provided by him and under his direction and supervision.

the new language and such representations were false.

the plan that it had approved.

and at his direction.

of the reference to the Compensation Committee minutes and attachments.

SERP benefits to which he is entitled were vested.

“Agreement Regarding Early Retirement and Termination of Employment” (“Retirement

Agreement”), a copy of which is attached hereto as Exhibit “5.”

made such bi-weekly payments in the amount of $23,936.04.

made from June 23, 2003 until said date.

adopted in September of 1998, a copy of which is attached hereto as Exhibit “7.”

SERP benefits, at the rate of $18,283.30 monthly.

or even submit an affidavit.

did he appear in person or even submit an affidavit.

retirement benefits under the SERP.