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Filing# 141148864 E-Filed 12/30/2021 02:39:17 PM
IN THE CIRCUIT COURT OF THE 17TH
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
CHARLES SERABIAN,
CASE NUMBER: CACE-21-007710 (03)
Plaintiff(s),
VS.
RICHARD A. HAMANN AND SONS
DEMOLITION, AND RICK HAMANN &
SON DEMOLITION, INC.,
Defendant(s).
i
RICK HAMANN & SON DEMOLITION, INC.,
Third-Party Plaintiff,
VS.
AMERICAN BUILDING ENGINEERS, INC.,
ABE PROFESSIONAL HOME INSPECTION, INC.
And ABE BORUJERDI,
Third Party Defendants.
i
DEFENDANT/THIRD-PARTY PLAINTIFF, RICK HAMANN & SON DEMOLITION, INC.'S
MOTION FOR SANCTIONS
PURSUANT TO FLORIDA STATUTES &57.105
Pursuant to Section 57.105, Florida Statutes, Defendant, Rick Hamann & Son Demolition, Inc.
("Hamann"), hereby respectfullyrequests that this Court enter an order imposing sanctions, including
attorney'sfees and any other sanctions pennissibleunder the law againstPlaintiff,
Charles Serabian, and
that the Court deems just,proper and equitable.In support of this Motion, Hamann states as follows:
1
Florida Statute § 57.105, provides that the court shall award reasonable attorney's fees
when it finds that a party knew or should have known, at the time of filing,that a particularclaim or defense
was not supported by the material facts necessary to establish the claim or defense; or would not be
supported by the applicationof then-existinglaw to those material facts.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/30/2021 02:39:16 PM.****
2.
At any time, in any civil proceeding or actin in which the moving party proves by a
preponderance of the evidence that any action taken by the opposing party, including,but not limited to,
the filingof any pleading or part thereof,the assertion of orresponse to any discovery demand, the assertion
of any claim or defense, or the response to any request by any other party, was taken primarily for the
purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable
expenses incurred from obtaining the order. See, Florida Statute § 57.105.
3.
Pursuant to the Court's "safe harbor" provision,the motion is to be served at least 21 days
before it is filed with the Court to provide opposing counsel an opportunity to withdraw the claim or defense
after considering the merits of the motion for sanctions. The prerequisitesabove have been fullysatisfied,
in addition to other fonnal good faith efforts priorto the filingof this Instant Motion.
MEMORANDUM OF LAW IN SUPPORT
4.
By way ofbackground, on May 3, 2021, Plaintiff filed a Complaint assertinga singlecause
ofaction fornegligenceagainstHamann for the allegedimproper full and complete demolition ofa structure
located at 1544 E. Commercial Boulevard, Oakland Park, Florida (the"Property").The Complaint asserts
that Plaintiff engaged American Building Engineers, Inc. and/or Abe Borujerdi,P.E. ("ABE") to perform
limited demolition of the Property but that Hamann, retained by ABE, negligently performed a full
demolition instead. See, Exhibit "A."
5.
Oddly missing from the Complaint, is ABE- who Serabian directlycontracted with to get
the job done. Hamann is aware of a related action under CACE Number 20-001571, entitled Charles B.
Serabian v. American Building Engineers, Inc. and Abe Borujerdiwherein Plaintiff asserts that the project
at the Property called for a partialdemolition, not a full demolition and that it was ABE who engaged in
bait and switch tacn-cs. The related Serabian v. ABE matter clearlyidentifies the issues and source of the
blame. See, Exhibit "B." At the time Serabian filed his Complaint against Hamann he knew that Hamann
was not negligent in any sense, and that it was ABE "who engaged in bait and switch tactics."
6.
Simply put, Hamann was retained,in writingby ABE to perform a full demolition of the
structure at the Property. See, Exhibit "C." Hamann perfonned its duties and completed a full demolition
wherein progress photographs were even taken by either Plaintiff or ABE that were produced by in
discoveryindicatingthat Plaintiff was aware that a full demolition took place.See, Exhibit "D." Hamann's
work was completed and accepted by ABE and he was paid in full. See, Exhibit "E." Over the course of
the next four years, Hamann had no communications and was not provided any notice that there had been
an improper demolition at the Property by either Plaintiff or ABE.
7.
Despite the above and Plaintiff's claims, Plaintiff knew or should have known that a full
demolition was planned.First,Plaintiffhad written notice that a full demolition was to take place,as Florida
Power & Light ("FPL") provided notice of the removal the electrical meter and disconnection of FPL
service on May 5, 2017 acknowledging the preparationof a full demolition. A-Alligator had also perfonned
a full demolition of the grease trap pursuant to code requirement for the purpose of demolition and
abandonment. Disconnection of the primary utilities- electrical,water, gas and sewer is required in advance
of any full demolition, thus, providing for further indication that Plaintiff was well aware of what was to
take place at his Property. See, Exhibit "F" and Exhibit "G." The Broward County Uniform Building
Permit Application submitted and executed by both Plaintiff and ABE unmistakably states
Demolition of Existing BLDG under "Description of Work." See, Exhibit "H." Finally,the plans in their
entiretyclearlyand undoubtedly depict that a full tear down had been planned from the very start. See,
Exhibit "I." Any discrepancy Plaintiff may have with the permits or misunderstanding as to what the plans
actuallydepict is of no effect to Hamann.
8
Herein, Plaintiff does not have a viable negligenceclaim againstHamann and Hamann has
raised the issue early in the litigationin advance of engaging in costly defense. Hamann made good faith
efforts requesting that Plaintiff file with the court a Stipulationof Dismissal with Prejudicewithin ten (10)
business days, to no avail.
9.
Pursuant to the exhibits annexed hereto, as well as Plaintiff's other Court filingsit is
abundantly clear that there is no viable claim for which Plaintiffmay recover againstHamann. Hamann has
alreadyincurred the exorbitant expenses ofreviewing discovery,requestingdocuments, consultingexperts
and following up with Plaintiff' s office in an effort to avoid the costly litigation
and seeing the matter
through to summary judgment. In fact,the related Serabian v. ABE action is presentlystayed pending
arbitration and should Plaintiff recover from ABE in that action for the very same damages asserted in this
Instant Action, it will present a double recovery for which Plaintiffwas infonned about from the inception
of this action.
10.
Plaintiff's frivolous Complaint againstHamann is not only forcing Hamann to waste time
and money on a cause that it should not have had to go to court to prove, itis also drainingjudicialresources
and using the judicialsystem to recoup monies lost on either a bad business deal with ABE, or a colluded
effort to recoup monies expended on what was the initial plan in the first place.
11.
Should Hamann be forced to engage in unnecessary litigationand incur the exorbitant costs
and fees associated with defending against Plaintiff's negligence claim, Hamann intends to file a Motion
for Summary Judgment after expeditiouslyconducting necessary depositions as well as a Motion for Fraud
upon the Court seeking costs after establishingthat Plaintiff knew or should have known it did not have a
claim againstHamann and did not timely dismiss within the statutory safe harbor period.
12.
Should Plaintiff maintain his action againstHamann despitebeing aware of the above
should entitles Hamann to an award of attorney'sfees,damages, and such other sanctions as the court deems
appropriate for having to go through the litigationprocess to continue to prove same. See Aspen Air
Conditioning, Inc. v. Safeco Ins. Co. of America, 170 So.3d 892 (Fla.3rd DCA 2015).
13.
Hamann has given Plaintiff the twenty-one (21) day notice provided for in Section 57.105,
Florida Statutes before filingthis Instant Motion, as well as several other good faith efforts.
WHEREFORE, HAMANN respectfully requests that this Court enter an Order imposing
Sanctions againstPlaintiff,
including an award for attorney's fees and costs incurred in bringing this Motion
and any other sanctions that the Court deems appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via Florida e-
portalDecember 30,2021 to: Alan L. Raines, Esq.,Attorneys for Plaintiff,
Wasch Raines, 2500 N. Military
Trail,Suite 100, Boca Raton, Florida 33431, araines@waschraines.com and Bruce Trybus, Esq. and Kira
Tsiring, Esq., Attorneys for Third-Party Defendants, Cooney Trybus Kwavvnick Peets, 1600 West
Commercial
Boulevard,
Suite
200,
Fort
Lauderdale,
Florida
33309;
reception@ctkplaw.com;
yhall@ctkplaw.com; ktsiring@ctkplaw.com;jnunez@ctkplaw.com.
Marshall, Dennehey
Warner, Coleman & Goggin
Counsel for RICK HAMANN & SON
DEMOLITION, INC.
2400 East Commercial Boulevard
Suite 1100
Fort Lauderdale, FL 33308
Telephone No.: (954) 847-4920
Facsimile No.: (954) 627-6640
jmnetska@mdwcg.com
anjones@mdwcg.com
pmdelong@mdwcg.com
ajmastrangelo@mdwcg.com
By:/s/JenniferM. Netska, Esq.
Jennifer M. Netska, Esq.
Florida Bar Number: 1024089
Patrick M. DeLong, Esq.
Florida Bar Number: 982415
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Filing# 141148864 E-Filed 12/30/2021 02:39:17 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CHARLES SERABIAN, CASE NUMBER: CACE-21-007710 (03) Plaintiff(s), VS. RICHARD A. HAMANN AND SONS DEMOLITION, AND RICK HAMANN & SON DEMOLITION, INC., Defendant(s). i RICK HAMANN & SON DEMOLITION, INC., Third-Party Plaintiff, VS. AMERICAN BUILDING ENGINEERS, INC., ABE PROFESSIONAL HOME INSPECTION, INC. And ABE BORUJERDI, Third Party Defendants. i DEFENDANT/THIRD-PARTY PLAINTIFF, RICK HAMANN & SON DEMOLITION, INC.'S MOTION FOR SANCTIONS PURSUANT TO FLORIDA STATUTES &57.105 Pursuant to Section 57.105, Florida Statutes, Defendant, Rick Hamann & Son Demolition, Inc. ("Hamann"), hereby respectfullyrequests that this Court enter an order imposing sanctions, including attorney'sfees and any other sanctions pennissibleunder the law againstPlaintiff, Charles Serabian, and that the Court deems just,proper and equitable.In support of this Motion, Hamann states as follows: 1 Florida Statute § 57.105, provides that the court shall award reasonable attorney's fees when it finds that a party knew or should have known, at the time of filing,that a particularclaim or defense was not supported by the material facts necessary to establish the claim or defense; or would not be supported by the applicationof then-existinglaw to those material facts. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/30/2021 02:39:16 PM.**** 2. At any time, in any civil proceeding or actin in which the moving party proves by a preponderance of the evidence that any action taken by the opposing party, including,but not limited to, the filingof any pleading or part thereof,the assertion of orresponse to any discovery demand, the assertion of any claim or defense, or the response to any request by any other party, was taken primarily for the purpose of unreasonable delay, the court shall award damages to the moving party for its reasonable expenses incurred from obtaining the order. See, Florida Statute § 57.105. 3. Pursuant to the Court's "safe harbor" provision,the motion is to be served at least 21 days before it is filed with the Court to provide opposing counsel an opportunity to withdraw the claim or defense after considering the merits of the motion for sanctions. The prerequisitesabove have been fullysatisfied, in addition to other fonnal good faith efforts priorto the filingof this Instant Motion. MEMORANDUM OF LAW IN SUPPORT 4. By way ofbackground, on May 3, 2021, Plaintiff filed a Complaint assertinga singlecause ofaction fornegligenceagainstHamann for the allegedimproper full and complete demolition ofa structure located at 1544 E. Commercial Boulevard, Oakland Park, Florida (the"Property").The Complaint asserts that Plaintiff engaged American Building Engineers, Inc. and/or Abe Borujerdi,P.E. ("ABE") to perform limited demolition of the Property but that Hamann, retained by ABE, negligently performed a full demolition instead. See, Exhibit "A." 5. Oddly missing from the Complaint, is ABE- who Serabian directlycontracted with to get the job done. Hamann is aware of a related action under CACE Number 20-001571, entitled Charles B. Serabian v. American Building Engineers, Inc. and Abe Borujerdiwherein Plaintiff asserts that the project at the Property called for a partialdemolition, not a full demolition and that it was ABE who engaged in bait and switch tacn-cs. The related Serabian v. ABE matter clearlyidentifies the issues and source of the blame. See, Exhibit "B." At the time Serabian filed his Complaint against Hamann he knew that Hamann was not negligent in any sense, and that it was ABE "who engaged in bait and switch tactics." 6. Simply put, Hamann was retained,in writingby ABE to perform a full demolition of the structure at the Property. See, Exhibit "C." Hamann perfonned its duties and completed a full demolition wherein progress photographs were even taken by either Plaintiff or ABE that were produced by in discoveryindicatingthat Plaintiff was aware that a full demolition took place.See, Exhibit "D." Hamann's work was completed and accepted by ABE and he was paid in full. See, Exhibit "E." Over the course of the next four years, Hamann had no communications and was not provided any notice that there had been an improper demolition at the Property by either Plaintiff or ABE. 7. Despite the above and Plaintiff's claims, Plaintiff knew or should have known that a full demolition was planned.First,Plaintiffhad written notice that a full demolition was to take place,as Florida Power & Light ("FPL") provided notice of the removal the electrical meter and disconnection of FPL service on May 5, 2017 acknowledging the preparationof a full demolition. A-Alligator had also perfonned a full demolition of the grease trap pursuant to code requirement for the purpose of demolition and abandonment. Disconnection of the primary utilities- electrical,water, gas and sewer is required in advance of any full demolition, thus, providing for further indication that Plaintiff was well aware of what was to take place at his Property. See, Exhibit "F" and Exhibit "G." The Broward County Uniform Building Permit Application submitted and executed by both Plaintiff and ABE unmistakably states Demolition of Existing BLDG under "Description of Work." See, Exhibit "H." Finally,the plans in their entiretyclearlyand undoubtedly depict that a full tear down had been planned from the very start. See, Exhibit "I." Any discrepancy Plaintiff may have with the permits or misunderstanding as to what the plans actuallydepict is of no effect to Hamann. 8 Herein, Plaintiff does not have a viable negligenceclaim againstHamann and Hamann has raised the issue early in the litigationin advance of engaging in costly defense. Hamann made good faith efforts requesting that Plaintiff file with the court a Stipulationof Dismissal with Prejudicewithin ten (10) business days, to no avail. 9. Pursuant to the exhibits annexed hereto, as well as Plaintiff's other Court filingsit is abundantly clear that there is no viable claim for which Plaintiffmay recover againstHamann. Hamann has alreadyincurred the exorbitant expenses ofreviewing discovery,requestingdocuments, consultingexperts and following up with Plaintiff' s office in an effort to avoid the costly litigation and seeing the matter through to summary judgment. In fact,the related Serabian v. ABE action is presentlystayed pending arbitration and should Plaintiff recover from ABE in that action for the very same damages asserted in this Instant Action, it will present a double recovery for which Plaintiffwas infonned about from the inception of this action. 10. Plaintiff's frivolous Complaint againstHamann is not only forcing Hamann to waste time and money on a cause that it should not have had to go to court to prove, itis also drainingjudicialresources and using the judicialsystem to recoup monies lost on either a bad business deal with ABE, or a colluded effort to recoup monies expended on what was the initial plan in the first place. 11. Should Hamann be forced to engage in unnecessary litigationand incur the exorbitant costs and fees associated with defending against Plaintiff's negligence claim, Hamann intends to file a Motion for Summary Judgment after expeditiouslyconducting necessary depositions as well as a Motion for Fraud upon the Court seeking costs after establishingthat Plaintiff knew or should have known it did not have a claim againstHamann and did not timely dismiss within the statutory safe harbor period. 12. Should Plaintiff maintain his action againstHamann despitebeing aware of the above should entitles Hamann to an award of attorney'sfees,damages, and such other sanctions as the court deems appropriate for having to go through the litigationprocess to continue to prove same. See Aspen Air Conditioning, Inc. v. Safeco Ins. Co. of America, 170 So.3d 892 (Fla.3rd DCA 2015). 13. Hamann has given Plaintiff the twenty-one (21) day notice provided for in Section 57.105, Florida Statutes before filingthis Instant Motion, as well as several other good faith efforts. WHEREFORE, HAMANN respectfully requests that this Court enter an Order imposing Sanctions againstPlaintiff, including an award for attorney's fees and costs incurred in bringing this Motion and any other sanctions that the Court deems appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via Florida e- portalDecember 30,2021 to: Alan L. Raines, Esq.,Attorneys for Plaintiff, Wasch Raines, 2500 N. Military Trail,Suite 100, Boca Raton, Florida 33431, araines@waschraines.com and Bruce Trybus, Esq. and Kira Tsiring, Esq., Attorneys for Third-Party Defendants, Cooney Trybus Kwavvnick Peets, 1600 West Commercial Boulevard, Suite 200, Fort Lauderdale, Florida 33309; reception@ctkplaw.com; yhall@ctkplaw.com; ktsiring@ctkplaw.com;jnunez@ctkplaw.com. Marshall, Dennehey Warner, Coleman & Goggin Counsel for RICK HAMANN & SON DEMOLITION, INC. 2400 East Commercial Boulevard Suite 1100 Fort Lauderdale, FL 33308 Telephone No.: (954) 847-4920 Facsimile No.: (954) 627-6640 jmnetska@mdwcg.com anjones@mdwcg.com pmdelong@mdwcg.com ajmastrangelo@mdwcg.com By:/s/JenniferM. Netska, Esq. Jennifer M. Netska, Esq. Florida Bar Number: 1024089 Patrick M. DeLong, Esq. Florida Bar Number: 982415