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Filing # 177125339 E-Filed 07/11/2023 11:30:50 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
KSD PARTNERS, LLC, an Ohio
limited liability company,
Plaintiff,
vs. CASE NO. 2023-002230-CA
PUNTA GORDA HEALTH
INVESTORS, LLC, a Florida limited
liability company and FILEMAN LAW
FIRM, P.A., a Florida corporation, as
escrow agent,
Defendants.
MOTION TO DISMISS
COME NOW, the Defendants, PUNTA GORDA HEALTH INVESTORS, LLC, and
FILEMAN LAW FIRM, P.A, by and through their undersigned attorney who files this
Motion to Dismiss and pursuant to Fla. R. Civ. P. 1.140(b)(6), and in support thereof
would state the following:
1 Plaintiff filed a multiple count Complaint based on a contract for sale and
purchase of real property in Charlotte County, Florida on June 13, 2023. The contract
in question was signed on March 25, 2022 and therefore has an effective date of March
25, 2022. The contract was signed by Robert A. Sweet on behalf of the purchaser and
by Joel Sheer on behalf of the Seller.
2 Plaintiff correctly identifies that the contract provides for an inspection
period of thirty-seven (37) business days which makes the last date for the Plaintiff to
elect to cancel the contract May 18, 2022. Plaintiff actually suggests that the end date
is May 17, 2022 but based on the undersigned’s calculations, it appears that May 18,
2022 is actually the correct final date. Regardless, whether the final date is May 17" or
May 18, 2022, the buyer under the contract, Defendant in this case, properly terminated
the contract on May 16, 2022.
3 Plaintiff in this matter laughably suggests that the notice of termination of
contract provided by the purchaser was sent by a “third party stranger” and uses that
language several times in its Complaint. This of course is not true and Plaintiff knows
it not to be true. The contract provides for the manner of notices in paragraph 21 and
one of the ways the notice is allowed to be delivered is by email. Specifically, the contract
provides for the notice to be provided via email as follows:
Notice to Seller: With a copy to:
KSD Partners, LLC Irwin M. Frank, Esq.
4 N. Main St 6105 Parkland Boulevard, Suite 100
Chagrin Falls, Ohio 44022 Mayfield Heights, Ohio 44124
Email: joelrscheer@gmail.com Email: ifrank@dhplaw.com
4 The Defendant in this case, the purchaser under the contract, provided
notice exactly as prescribed by the contract in paragraph 21. Exhibit “C” to the
Plaintiffs Complaint shows that the notice was sent on May 16, 2022 to exactly the
addresses as provided in the notice with email to KSD Partners, LLC at the address
provided in the notice as well as a copy to their attorney Irwin M. Frank, as provided in
the notice at his email address. The notice contains the regard line “Contract for
Purchase and Sale executed March 28, 2022 (the “PSA”) between KSD PARTNERS, LLC
(“Seller”) and Meridian Senior Living, LLC (“Purchaser”), covering the property located
at 1200 Socorro Dr., Punta Gorda, Florida 33950 (the “Property”)” The notice is then
signed by Robert A. Sweet, the same signer of the contract in question for the property
in question at 1200 Socorro Dr., Punta Gorda, Florida 33950.
5. The entirety of Plaintiffs Complaint rests on this fiction that this notice
line toa
was insufficient because there is a reference in the regard line and signature
different Delaware company, Meridian Senior Living, LLC. There is absolutely no doubt
that the Seller of the property received this notice on time. There is absolutely no doubt
that the Seller knew this letter to be an effective termination of the Contract as it
references the property and it is signed by the same person who signed the contract for
the Purchaser, Robert A. Sweet. There was no other contract for the property at 1200
Socorro Dr., Punta Gorda, Florida 33950 at the time this notice was provided.
Defendant received the notice and was aware of it and evidently upset about having
received it. Nevertheless, the Purchaser timely and properly terminated the contract.
Given that the Plaintiff agrees that it received timely notice of termination signed by the
same individual who signed the Contract for Sale and Purchase and that a notice was
provided exactly as specified in paragraph 21 of the Contract, there is no present
controversy before this Court and no cause of action has been pled. There has not even
been an attempt to state a cause of action against co-defendant, ARIANA FILEMAN, who
everyone agrees only acted as attorney and escrow agent for the Contract in question.
*
ARIANA FILEMAN should likewise be dismissed. However, the entirety of this lawsuit
needs to be dismissed as there is no present controversy existing before the Court.
6 The Defendants were forced to retain the undersigned counsel in this
matter and those fees and costs are recoverable against the Plaintiff pursuant to the
Contract for Sale and Purchase.
WHEREFORE, Defendants respectfully request this Court enter an Order
dismissing the action with prejudice and awarding the Defendants their reasonably
incurred attorney’s fees and court costs.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing has been
furnished via the e-portal to Kevin F. Jursinski, Esq., Law Office of Juysinski & Murphy,
Z
PLLC, 15701 S. Tamiami Trail, Fort Myers, FL 33908 (ke) @imlawfl.com and
a
melissa@jmlawfl.com), this t ( day of July, 2023. J
x
L f ON ee
/ALBERT J yf/ of Spo, JR., ESQUIRE
Florida/Bar/Ndmber 0323240
/ GOLDMAN, TISEO & STURGES, P.A.
/ 701J
Port
Senter Court, Suite 3
arlotte, Florida 33954
(941) 625-6666
(941) 625-0660 Facsimile
isdo@stslawfirm.com
Ibai: @gtslawfirm.com
“T for Defendants
|
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Filing # 177125339 E-Filed 07/11/2023 11:30:50 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION KSD PARTNERS, LLC, an Ohio limited liability company, Plaintiff, vs. CASE NO. 2023-002230-CA PUNTA GORDA HEALTH INVESTORS, LLC, a Florida limited liability company and FILEMAN LAW FIRM, P.A., a Florida corporation, as escrow agent, Defendants. MOTION TO DISMISS COME NOW, the Defendants, PUNTA GORDA HEALTH INVESTORS, LLC, and FILEMAN LAW FIRM, P.A, by and through their undersigned attorney who files this Motion to Dismiss and pursuant to Fla. R. Civ. P. 1.140(b)(6), and in support thereof would state the following: 1 Plaintiff filed a multiple count Complaint based on a contract for sale and purchase of real property in Charlotte County, Florida on June 13, 2023. The contract in question was signed on March 25, 2022 and therefore has an effective date of March 25, 2022. The contract was signed by Robert A. Sweet on behalf of the purchaser and by Joel Sheer on behalf of the Seller. 2 Plaintiff correctly identifies that the contract provides for an inspection period of thirty-seven (37) business days which makes the last date for the Plaintiff to elect to cancel the contract May 18, 2022. Plaintiff actually suggests that the end date is May 17, 2022 but based on the undersigned’s calculations, it appears that May 18, 2022 is actually the correct final date. Regardless, whether the final date is May 17" or May 18, 2022, the buyer under the contract, Defendant in this case, properly terminated the contract on May 16, 2022. 3 Plaintiff in this matter laughably suggests that the notice of termination of contract provided by the purchaser was sent by a “third party stranger” and uses that language several times in its Complaint. This of course is not true and Plaintiff knows it not to be true. The contract provides for the manner of notices in paragraph 21 and one of the ways the notice is allowed to be delivered is by email. Specifically, the contract provides for the notice to be provided via email as follows: Notice to Seller: With a copy to: KSD Partners, LLC Irwin M. Frank, Esq. 4 N. Main St 6105 Parkland Boulevard, Suite 100 Chagrin Falls, Ohio 44022 Mayfield Heights, Ohio 44124 Email: joelrscheer@gmail.com Email: ifrank@dhplaw.com 4 The Defendant in this case, the purchaser under the contract, provided notice exactly as prescribed by the contract in paragraph 21. Exhibit “C” to the Plaintiffs Complaint shows that the notice was sent on May 16, 2022 to exactly the addresses as provided in the notice with email to KSD Partners, LLC at the address provided in the notice as well as a copy to their attorney Irwin M. Frank, as provided in the notice at his email address. The notice contains the regard line “Contract for Purchase and Sale executed March 28, 2022 (the “PSA”) between KSD PARTNERS, LLC (“Seller”) and Meridian Senior Living, LLC (“Purchaser”), covering the property located at 1200 Socorro Dr., Punta Gorda, Florida 33950 (the “Property”)” The notice is then signed by Robert A. Sweet, the same signer of the contract in question for the property in question at 1200 Socorro Dr., Punta Gorda, Florida 33950. 5. The entirety of Plaintiffs Complaint rests on this fiction that this notice line toa was insufficient because there is a reference in the regard line and signature different Delaware company, Meridian Senior Living, LLC. There is absolutely no doubt that the Seller of the property received this notice on time. There is absolutely no doubt that the Seller knew this letter to be an effective termination of the Contract as it references the property and it is signed by the same person who signed the contract for the Purchaser, Robert A. Sweet. There was no other contract for the property at 1200 Socorro Dr., Punta Gorda, Florida 33950 at the time this notice was provided. Defendant received the notice and was aware of it and evidently upset about having received it. Nevertheless, the Purchaser timely and properly terminated the contract. Given that the Plaintiff agrees that it received timely notice of termination signed by the same individual who signed the Contract for Sale and Purchase and that a notice was provided exactly as specified in paragraph 21 of the Contract, there is no present controversy before this Court and no cause of action has been pled. There has not even been an attempt to state a cause of action against co-defendant, ARIANA FILEMAN, who everyone agrees only acted as attorney and escrow agent for the Contract in question. * ARIANA FILEMAN should likewise be dismissed. However, the entirety of this lawsuit needs to be dismissed as there is no present controversy existing before the Court. 6 The Defendants were forced to retain the undersigned counsel in this matter and those fees and costs are recoverable against the Plaintiff pursuant to the Contract for Sale and Purchase. WHEREFORE, Defendants respectfully request this Court enter an Order dismissing the action with prejudice and awarding the Defendants their reasonably incurred attorney’s fees and court costs. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing has been furnished via the e-portal to Kevin F. Jursinski, Esq., Law Office of Juysinski & Murphy, Z PLLC, 15701 S. Tamiami Trail, Fort Myers, FL 33908 (ke) @imlawfl.com and a melissa@jmlawfl.com), this t ( day of July, 2023. J x L f ON ee /ALBERT J yf/ of Spo, JR., ESQUIRE Florida/Bar/Ndmber 0323240 / GOLDMAN, TISEO & STURGES, P.A. / 701J Port Senter Court, Suite 3 arlotte, Florida 33954 (941) 625-6666 (941) 625-0660 Facsimile isdo@stslawfirm.com Ibai: @gtslawfirm.com “T for Defendants |