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Filing # 137852312 E-Filed 11/03/2021 04:36:05 PM
1202.41114
1202.41114
IN THE CIRCUIT COURT OF THE
15'* JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO: 50 2021 CA 007567 XXXXMB
HVC & NC LIMITED PARTNERSHIP,
Plaintiff,
vs.
VINTAGE & SPECIALTY WOOD LLC,
f/k/a WOOD SALES BY HARRY, INC.,
an A TTADDY DAWA SOND
a0 DARIN KA LIVWIUND,
Defendants.
See eee
HARRY. INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
COMES NOW, the Defendant, VINTAGE & SPECIALTY WOOD, LLC, fik/a
WOOD SALES BY HARRY, INC., by and through his undersigned attorneys and pursuant
to the Florida Rules of Civil Procedure and Florida law and files this Motion to Dismiss
directed to the Plaintiff's Complaint and in support thereof states as follows:
1. On June 17, 2021 the Plaintiff commenced litigation against two party
Defendants, VINTAGE & SPECIALTY WOOD LLC, f/k/a WOOD SALES BY HARRY,
INC., and HARRY RAYMOND.
2. That as it pertains to this Defendant, that being VINTAGE & SPECIALTY WOOD
LLC, f/k/a WOOD SALES BY HARRY, INC., initially on August 5, 2021 a Motion to Quash
Purported Service of Process was filed. Such Motion was never set for hearing and rather
counsel for the Plaintiff initiated a course of proper service of process upon this Defendant.
CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN FLEDY 441INQINNNA NANG DN
HILLY. PAL DUA VUUINE TT, FL, JUOL IE mDNUeeYy, VLU, ure.) ut.ou.uy civHVC & NC LIMITED v, VINTAGE, et al
CASE NO: 50 2021 CA 007567 XXXXMB
3. As a result of the Plaintiff's pursuit of proper service of process upon this
Defendant, this has rendered as moot this Defendant’s August 5, 2021 Motion to Quash
Purported Service of Process.
4. This Motion is directed to the Complaint as filed.
5. Pursuant to paragraph 7 of the Complaint it is alleged that a commercial lease
agreement was attached as Exhibit “A”. The Complaint, as served on this Defendant,
contained no Exhibit “A”.
6. The theories of liability asserted against this Defendant are contained within
Count I, Negligence and Count III, Breach of Contract.
7. Paragraph 16 of the Complaint alleges the existence of a commercial lease
agreement having a date of on or about August 16, 2013. However, the referred to Exhibit
“A”, within paragraph 7 was not served on this Defendant along with the Summons and
Complaint.
8. Pursuant to paragraph 8, within the General Allegations, it is alleged that the
lease agreement was renewed to October 12, 2018. However, no document has been attached,
as an Exhibit, to support a claim that the commercial lease agreement, referred to within
paragraph 7, was in fact “renewed” through October 12, 2018.
9. Inasmuch as Count III of the Complaint is predicated upon a lease agreement that
allegedly was in existence through October 12,2018, failure to attach, as an exhibit, that lease
agreement results in Count III of the Complaint being subject to dismissal.
10. As one considers the allegations within the General Allegations portion of the
Page 2 of 4HVC & NC LIMITED v, VINTAGE, et al
CASE NO: 50 2021 CA 007567 XXXXMB
Complaint, the Plaintiff has essentially “lumped together” claims against both party
Defendants. Such form of pleading is inconsistent and is contrary to the Florida rules of Civil
Procedure and Florida law.
11. That as it pertains to the allegations contained within paragraph 23, the Plaintiff
has failed to identify the conditions precedent that allegedly occurred, were performed or
waived. As such, this Defendant is unable to address those allegations as asserted. Inasmuch
as the Plaintiff has asserted two claims against this Defendant, one sounding in negligence and
one sounding in breach of contract however the Plaintiff has failed to produce the document
forming the basis of the contract, one is unable to judge the conclusionary allegations within
the Complaint against a purported contractual agreement between the parties.
12. As one considers the allegations within the “General Allegations” portion of the
Complaint, said allegations do not set forth a valid cause of action sounding in negligence.
Although the Plaintiff has alleged that a fire occurred on October 12, 2018 and has alleged that
subsequent to the fire a badly damaged DeWalt battery charger, battery pack and extension
cord were found in the origin of the fire, and further alleges that allegedly the respective party
Defendants has plugged the battery charger into an extension cord, and there was a warning not
to use an exienston cord, no specific factual predicate has been sei Torin io allege a true cause
of the fire, and how the cause of the fire would fall within any duty owed by this Defendant, or
the Co-Defendant and that there was any breach of any such duty.
13. Within paragraph 21, the Plaintiff merely alleges that the “actions” of the
Defendants “caused” the fire. Such allegations are nothing more than conclusionary
Page 3 of 4HVC & NC LIMITED v, VINTAGE, et al
CASE NO: 50 2021 CA 007567 XXXXMB
statements, as compared to a true factual predicate establishing any “cause” associated with any
action or inaction of either party Defendant.
14. As one considers the allegations within paragraph 26 of the Complaint, within
Count I — Negligence, the Plaintiff alleges that the plugging in of a battery charger into an
extension cord and keeping rags near where a fire “could” occur was negligence. However,
none of that conclusionary sentence sets forth an actual event having occurred as a result of any
individual action or inaction or a combination thereof.
15. In fact, as one considers the allegations within Count I, and paragraphs 26 and
27, the Plaintiff merely alleges that some fire “could” occur. Florida requires an actual setting
forth of a factual predicate giving rise to a recognized duty under Florida law and where a
specific breach of a recognized duty was the proximate cause of the claim as asserted. The
Complaint as filed fails to address the minimum pleading requirements recognized under
Florida law.
16. As it pertains to the “wherefore” clauses of Counts I and III the Plaintiff has
asserted, on a general and vague basis damages in categories of compensatory, consequential
and incidental however the Plaintiff has failed to specifically identify those damages with the
required specificity recognized under Fiorida iaw.
WHEREFORE, this Defendant, VINTAGE & SPECIALTY WOOD, LLC, ffk/a
WOOD SALES BY HARRY, INC., respectfully requests this Court enter an order granting
its Motion to Dismiss as to Counts I and III of the Plaintiff's Complaint for failure to set forth
a valid cause of action under either theory of liability as asserted against this Defendant
Page 4 of 4HVC & NC LIMITED v, VINTAGE, et al
CASE NO: 50 2021 CA 007567 XXXXMB
and/or in lieu of an outright dismissal of the Complaint on such grounds, respectfully
requests the entry of an order requiring
that the Plaintiff to file a more definite statement in
an attempt to set forth valid causes of action against this Defendant, or for such additional
relief as this Court deems just and proper.
CERTIFICATE OF SERVICE
I certify that the foregoing document has been furnished through the e-portal and/or by
e- mail on this 3" day of November 2021
to all counsel of record.
s/MARK R. ANTONELLI
Florida Bar No: 356948
mantonelli@gaebemullen.com
cgreer@gaebemulien.com
ymarrero@gaebemullen.com
lbeggs@gaebemullen.com
Attorneys for Defendants, VINTAGE &
SPECIALTY WOOD LLC f/k/a WOOD SALES
BY HARRY, INC., & HARRY RAYMOND
GAEBE, MULLEN, ANTONELLI &
NMsLATTOO
UUVIAL LGU
420 South Dixie Highway, Third Floor
Coral Gables, Florida 33146
Tel: 305-667-0223
Fax: 305-284-9844
Page 5 of 4
Preview
Filing # 137852312 E-Filed 11/03/2021 04:36:05 PM 1202.41114 1202.41114 IN THE CIRCUIT COURT OF THE 15'* JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO: 50 2021 CA 007567 XXXXMB HVC & NC LIMITED PARTNERSHIP, Plaintiff, vs. VINTAGE & SPECIALTY WOOD LLC, f/k/a WOOD SALES BY HARRY, INC., an A TTADDY DAWA SOND a0 DARIN KA LIVWIUND, Defendants. See eee HARRY. INC.’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT COMES NOW, the Defendant, VINTAGE & SPECIALTY WOOD, LLC, fik/a WOOD SALES BY HARRY, INC., by and through his undersigned attorneys and pursuant to the Florida Rules of Civil Procedure and Florida law and files this Motion to Dismiss directed to the Plaintiff's Complaint and in support thereof states as follows: 1. On June 17, 2021 the Plaintiff commenced litigation against two party Defendants, VINTAGE & SPECIALTY WOOD LLC, f/k/a WOOD SALES BY HARRY, INC., and HARRY RAYMOND. 2. That as it pertains to this Defendant, that being VINTAGE & SPECIALTY WOOD LLC, f/k/a WOOD SALES BY HARRY, INC., initially on August 5, 2021 a Motion to Quash Purported Service of Process was filed. Such Motion was never set for hearing and rather counsel for the Plaintiff initiated a course of proper service of process upon this Defendant. CHEN. DAIAARCACUAAIINTY Cl INCEDU ARDIIV7ZN FLEDY 441INQINNNA NANG DN HILLY. PAL DUA VUUINE TT, FL, JUOL IE mDNUeeYy, VLU, ure.) ut.ou.uy civHVC & NC LIMITED v, VINTAGE, et al CASE NO: 50 2021 CA 007567 XXXXMB 3. As a result of the Plaintiff's pursuit of proper service of process upon this Defendant, this has rendered as moot this Defendant’s August 5, 2021 Motion to Quash Purported Service of Process. 4. This Motion is directed to the Complaint as filed. 5. Pursuant to paragraph 7 of the Complaint it is alleged that a commercial lease agreement was attached as Exhibit “A”. The Complaint, as served on this Defendant, contained no Exhibit “A”. 6. The theories of liability asserted against this Defendant are contained within Count I, Negligence and Count III, Breach of Contract. 7. Paragraph 16 of the Complaint alleges the existence of a commercial lease agreement having a date of on or about August 16, 2013. However, the referred to Exhibit “A”, within paragraph 7 was not served on this Defendant along with the Summons and Complaint. 8. Pursuant to paragraph 8, within the General Allegations, it is alleged that the lease agreement was renewed to October 12, 2018. However, no document has been attached, as an Exhibit, to support a claim that the commercial lease agreement, referred to within paragraph 7, was in fact “renewed” through October 12, 2018. 9. Inasmuch as Count III of the Complaint is predicated upon a lease agreement that allegedly was in existence through October 12,2018, failure to attach, as an exhibit, that lease agreement results in Count III of the Complaint being subject to dismissal. 10. As one considers the allegations within the General Allegations portion of the Page 2 of 4HVC & NC LIMITED v, VINTAGE, et al CASE NO: 50 2021 CA 007567 XXXXMB Complaint, the Plaintiff has essentially “lumped together” claims against both party Defendants. Such form of pleading is inconsistent and is contrary to the Florida rules of Civil Procedure and Florida law. 11. That as it pertains to the allegations contained within paragraph 23, the Plaintiff has failed to identify the conditions precedent that allegedly occurred, were performed or waived. As such, this Defendant is unable to address those allegations as asserted. Inasmuch as the Plaintiff has asserted two claims against this Defendant, one sounding in negligence and one sounding in breach of contract however the Plaintiff has failed to produce the document forming the basis of the contract, one is unable to judge the conclusionary allegations within the Complaint against a purported contractual agreement between the parties. 12. As one considers the allegations within the “General Allegations” portion of the Complaint, said allegations do not set forth a valid cause of action sounding in negligence. Although the Plaintiff has alleged that a fire occurred on October 12, 2018 and has alleged that subsequent to the fire a badly damaged DeWalt battery charger, battery pack and extension cord were found in the origin of the fire, and further alleges that allegedly the respective party Defendants has plugged the battery charger into an extension cord, and there was a warning not to use an exienston cord, no specific factual predicate has been sei Torin io allege a true cause of the fire, and how the cause of the fire would fall within any duty owed by this Defendant, or the Co-Defendant and that there was any breach of any such duty. 13. Within paragraph 21, the Plaintiff merely alleges that the “actions” of the Defendants “caused” the fire. Such allegations are nothing more than conclusionary Page 3 of 4HVC & NC LIMITED v, VINTAGE, et al CASE NO: 50 2021 CA 007567 XXXXMB statements, as compared to a true factual predicate establishing any “cause” associated with any action or inaction of either party Defendant. 14. As one considers the allegations within paragraph 26 of the Complaint, within Count I — Negligence, the Plaintiff alleges that the plugging in of a battery charger into an extension cord and keeping rags near where a fire “could” occur was negligence. However, none of that conclusionary sentence sets forth an actual event having occurred as a result of any individual action or inaction or a combination thereof. 15. In fact, as one considers the allegations within Count I, and paragraphs 26 and 27, the Plaintiff merely alleges that some fire “could” occur. Florida requires an actual setting forth of a factual predicate giving rise to a recognized duty under Florida law and where a specific breach of a recognized duty was the proximate cause of the claim as asserted. The Complaint as filed fails to address the minimum pleading requirements recognized under Florida law. 16. As it pertains to the “wherefore” clauses of Counts I and III the Plaintiff has asserted, on a general and vague basis damages in categories of compensatory, consequential and incidental however the Plaintiff has failed to specifically identify those damages with the required specificity recognized under Fiorida iaw. WHEREFORE, this Defendant, VINTAGE & SPECIALTY WOOD, LLC, ffk/a WOOD SALES BY HARRY, INC., respectfully requests this Court enter an order granting its Motion to Dismiss as to Counts I and III of the Plaintiff's Complaint for failure to set forth a valid cause of action under either theory of liability as asserted against this Defendant Page 4 of 4HVC & NC LIMITED v, VINTAGE, et al CASE NO: 50 2021 CA 007567 XXXXMB and/or in lieu of an outright dismissal of the Complaint on such grounds, respectfully requests the entry of an order requiring that the Plaintiff to file a more definite statement in an attempt to set forth valid causes of action against this Defendant, or for such additional relief as this Court deems just and proper. CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished through the e-portal and/or by e- mail on this 3" day of November 2021 to all counsel of record. s/MARK R. ANTONELLI Florida Bar No: 356948 mantonelli@gaebemullen.com cgreer@gaebemulien.com ymarrero@gaebemullen.com lbeggs@gaebemullen.com Attorneys for Defendants, VINTAGE & SPECIALTY WOOD LLC f/k/a WOOD SALES BY HARRY, INC., & HARRY RAYMOND GAEBE, MULLEN, ANTONELLI & NMsLATTOO UUVIAL LGU 420 South Dixie Highway, Third Floor Coral Gables, Florida 33146 Tel: 305-667-0223 Fax: 305-284-9844 Page 5 of 4