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Filing # 146286749 E-Filed 03/23/2022 03:26:34 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
951 Harbor Drive, LLC, a Florida
limited liability company,
Plaintiff, Case No: 2017-014568-CA-01
v.
SD Construction, LLC, a Florida
limited liability company; Merick
Roofing, Inc., a Florida
corporation; and N. Oscar
Gonzalez, PE, an individual,
Defendants.
DEFENDANT SD CONSTRUCTION LLC’S MOTION ESTABLISHING GOOD
CAUSE FOR THE COURT TO CONSIDER ITS MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, TO EXCLUDE EVIDENCE
Defendant SD Construction LLC respectfully requests that the Court consider its
pending Motion for Summary Judgment or, in the alternative, Motion to Exclude
Evidence of Damages Recoverable in Related Prior Case which was filed after the
dispositive motion deadline set in the Court’s Case Management Order entered on
February 1, 2022, and in support states:
1. Undersigned counsel for SD Construction returned to the practice of law in
January 2022 after a 9-month military deployment to the Combined Security Transition
Command – Afghanistan, in support of the end of the war in Afghanistan and the
evacuation of 57,000 Afghan partners from Kabul to Al Udeid Air Base in Operation Allies
Refuge.
2. At the time of counsel’s departure for the deployment in March of 2021, SD
Construction was represented by legal counsel appointed by its insurer. Despite
controlling SD Construction’s defense in this case for nearly three years since 2017, the
insurer declined coverage during mediation of this matter and its appointed counsel
withdrew from the representation of SD Construction on August 11, 2021 while
undersigned counsel was deployed overseas.1
3. After returning to the United States, undersigned counsel entered his Notice
of Appearance as lead counsel on January 31, 2022 and attempted to reconstruct the file
from predecessor insurance counsel.
4. The Court entered the Case Management Order the next day on February 1,
2022 with almost every pretrial deadline scheduled in the past, including the dispositive
motion deadline which was scheduled for January 14, 2022 (two weeks before the Case
Management Order).
5. During the next 50 days (between February 1, 2022 and the date of this
motion), undersigned counsel sifted through over three years of litigation in two related
cases, drafted jury instructions, and drafted pretrial motions to get this case ready for jury
trial.
6. In the course of this herculean trial preparation, it became evident that this
lawsuit is barred by Florida’s rule against claim splitting. A plaintiff may not file multiple
complaints or split its damages from a single event in multiple lawsuits. Here, Plaintiff’s
insurer previously filed a subrogation action on behalf of Plaintiff against SD Construction
1 On or about September 20, 2021, the Court issued an order requiring the parties to meet
and confer to prepare a case management order. SD Construction requested Pedro Perez-
Roura, Esq. to enter an appearance on October 21, 2021 for the case management
conference, which did not occur until after undersigned counsel returned to the United
States.
2
for property damages to the same property and for same alleged water intrusion that are
being sought in this action.
7. When Plaintiff filed its Exhibit List on Friday, March 18 – approximately
three months after the deadline provided in the Case Management Order – it became even
more clear that the property damages claimed in this lawsuit overlap and are inextricably
intertwined with the property damages recoverable in the first subrogation action. This
is exactly the situation the rule against claim splitting is meant to prevent.
8. As a result, contemporaneously with the filing of this motion, SD
Construction filed its Motion for Summary Judgment or, in the Alternative, to Exclude
Evidence of Damages Recoverable in Related Prior Case. It is a simple single-issue
Motion for Summary Judgment that requires the Court to compare the pleadings in the
prior subrogation case with the pleadings in this case. The only reason it is a Motion for
Summary Judgement is because the Court is required to take judicial notice of the
pleadings filed in the related subrogation case styled Privilege Underwriters Reciprocal
Exchange a/s/o Joaquin A. Ribadeneira Quevedo, Maria D. Gomez Mendizabal, & 951
Harbor Drive, LLC. v. SD Construction, LLC et al., In the Circuit Court of the Eleventh
Judicial Circuit in and for Miami-Dade County, Florida, Case No. 2017-006935-CA-01.
Otherwise, this would be an even more simple Motion for Judgment on the Pleadings.
9. If the Court holds a hearing on this motion in accordance with the new
timing provisions in Rule 1.510 of the Florida Rules of Civil Procedure a hearing can be
conducted on May 2, 2022, which is just two weeks after the current Trial Ready Deadline
of April 15, 2022.
3
10. Ruling on this Motion for Summary Judgment will save judicial resources
of having to empanel a jury and present evidence to the jury until SD Construction can
raise this issue on Motion for Involuntary Dismissal, Directed Verdict or similar motion.
11. Undersigned’s military deployment, the genuinely bizarre circumstances
under which the insurance carrier quit defending this case after three years of controlling
the defense without even a reservation of rights (which will undoubtedly be raised in
litigation), undersigned counsel’s recent return, the herculean efforts undertaken to get
this case trial ready on behalf of SD Construction, and Plaintiff’s own missed deadlines
under the Case Management Order constitute good cause for the Court to consider the
pending Motion for Summary Judgment after the deadline in the Case Management
Order.
WHEREFORE, Defendant SD Construction LLC prays this Honorable Court
consider the Motion for Summary Judgment or, in the alternative, Motion to Exclude
Damages Evidence, and for such and further relief deemed equitable and just.
Dated: March 23, 2022 Respectfully submitted,
1
Robert J. Alwine, Esq.
Fla. Bar No. 404179
ROBERT JOSEPH ALWINE, P.A.
240 Crandon Blvd, Suite 263
Key Biscayne, Florida 33149
Telephone: (305) 965-0813
robert@robertalwine.com
Counsel for Defendant
4
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 23rd day of March 2022 a true and correct copy
of the foregoing was served via Florida E-Portal upon all counsel of record.
1
Robert J. Alwine
5
Preview
Filing # 146286749 E-Filed 03/23/2022 03:26:34 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA 951 Harbor Drive, LLC, a Florida limited liability company, Plaintiff, Case No: 2017-014568-CA-01 v. SD Construction, LLC, a Florida limited liability company; Merick Roofing, Inc., a Florida corporation; and N. Oscar Gonzalez, PE, an individual, Defendants. DEFENDANT SD CONSTRUCTION LLC’S MOTION ESTABLISHING GOOD CAUSE FOR THE COURT TO CONSIDER ITS MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, TO EXCLUDE EVIDENCE Defendant SD Construction LLC respectfully requests that the Court consider its pending Motion for Summary Judgment or, in the alternative, Motion to Exclude Evidence of Damages Recoverable in Related Prior Case which was filed after the dispositive motion deadline set in the Court’s Case Management Order entered on February 1, 2022, and in support states: 1. Undersigned counsel for SD Construction returned to the practice of law in January 2022 after a 9-month military deployment to the Combined Security Transition Command – Afghanistan, in support of the end of the war in Afghanistan and the evacuation of 57,000 Afghan partners from Kabul to Al Udeid Air Base in Operation Allies Refuge. 2. At the time of counsel’s departure for the deployment in March of 2021, SD Construction was represented by legal counsel appointed by its insurer. Despite controlling SD Construction’s defense in this case for nearly three years since 2017, the insurer declined coverage during mediation of this matter and its appointed counsel withdrew from the representation of SD Construction on August 11, 2021 while undersigned counsel was deployed overseas.1 3. After returning to the United States, undersigned counsel entered his Notice of Appearance as lead counsel on January 31, 2022 and attempted to reconstruct the file from predecessor insurance counsel. 4. The Court entered the Case Management Order the next day on February 1, 2022 with almost every pretrial deadline scheduled in the past, including the dispositive motion deadline which was scheduled for January 14, 2022 (two weeks before the Case Management Order). 5. During the next 50 days (between February 1, 2022 and the date of this motion), undersigned counsel sifted through over three years of litigation in two related cases, drafted jury instructions, and drafted pretrial motions to get this case ready for jury trial. 6. In the course of this herculean trial preparation, it became evident that this lawsuit is barred by Florida’s rule against claim splitting. A plaintiff may not file multiple complaints or split its damages from a single event in multiple lawsuits. Here, Plaintiff’s insurer previously filed a subrogation action on behalf of Plaintiff against SD Construction 1 On or about September 20, 2021, the Court issued an order requiring the parties to meet and confer to prepare a case management order. SD Construction requested Pedro Perez- Roura, Esq. to enter an appearance on October 21, 2021 for the case management conference, which did not occur until after undersigned counsel returned to the United States. 2 for property damages to the same property and for same alleged water intrusion that are being sought in this action. 7. When Plaintiff filed its Exhibit List on Friday, March 18 – approximately three months after the deadline provided in the Case Management Order – it became even more clear that the property damages claimed in this lawsuit overlap and are inextricably intertwined with the property damages recoverable in the first subrogation action. This is exactly the situation the rule against claim splitting is meant to prevent. 8. As a result, contemporaneously with the filing of this motion, SD Construction filed its Motion for Summary Judgment or, in the Alternative, to Exclude Evidence of Damages Recoverable in Related Prior Case. It is a simple single-issue Motion for Summary Judgment that requires the Court to compare the pleadings in the prior subrogation case with the pleadings in this case. The only reason it is a Motion for Summary Judgement is because the Court is required to take judicial notice of the pleadings filed in the related subrogation case styled Privilege Underwriters Reciprocal Exchange a/s/o Joaquin A. Ribadeneira Quevedo, Maria D. Gomez Mendizabal, & 951 Harbor Drive, LLC. v. SD Construction, LLC et al., In the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, Case No. 2017-006935-CA-01. Otherwise, this would be an even more simple Motion for Judgment on the Pleadings. 9. If the Court holds a hearing on this motion in accordance with the new timing provisions in Rule 1.510 of the Florida Rules of Civil Procedure a hearing can be conducted on May 2, 2022, which is just two weeks after the current Trial Ready Deadline of April 15, 2022. 3 10. Ruling on this Motion for Summary Judgment will save judicial resources of having to empanel a jury and present evidence to the jury until SD Construction can raise this issue on Motion for Involuntary Dismissal, Directed Verdict or similar motion. 11. Undersigned’s military deployment, the genuinely bizarre circumstances under which the insurance carrier quit defending this case after three years of controlling the defense without even a reservation of rights (which will undoubtedly be raised in litigation), undersigned counsel’s recent return, the herculean efforts undertaken to get this case trial ready on behalf of SD Construction, and Plaintiff’s own missed deadlines under the Case Management Order constitute good cause for the Court to consider the pending Motion for Summary Judgment after the deadline in the Case Management Order. WHEREFORE, Defendant SD Construction LLC prays this Honorable Court consider the Motion for Summary Judgment or, in the alternative, Motion to Exclude Damages Evidence, and for such and further relief deemed equitable and just. Dated: March 23, 2022 Respectfully submitted, 1 Robert J. Alwine, Esq. Fla. Bar No. 404179 ROBERT JOSEPH ALWINE, P.A. 240 Crandon Blvd, Suite 263 Key Biscayne, Florida 33149 Telephone: (305) 965-0813 robert@robertalwine.com Counsel for Defendant 4 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 23rd day of March 2022 a true and correct copy of the foregoing was served via Florida E-Portal upon all counsel of record. 1 Robert J. Alwine 5