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Filing # 36118910 E-Filed 01/04/2016 04:02:44 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,
IN AND FOR ORANGE COUNTY, FLORIDA
MDC PROPERTY INVESTMENT, LLC, CASE NO.: 2015-CA-10894-O
a Florida Corporation,
Plaintiff,
v.
CGM GENERAL SERVICE CORP., a
Florida Corporation, and CARLOS GIOVANNI
MELLO, an individual,
Defendants.
_____________________________________________/
DEFENDANTS CGM GENERAL SERVICES CORP., AND CARLOS GIOVANNI
MELLO’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT
Defendants, CGM General Service Corp. (“CGM”), and Carlos Giovanni Mello (“Mr.
Mello”), through counsel, pursuant to Fla. R. Civ. P. 1.130 and Fla. R. Civ. P. 1.140, file this
Motion to Dismiss as to MDC Property Investment, LLC’s (“Plaintiff”) Complaint, and state:
A. THE STANDARD FOR DECIDING A MOTION TO DISMISS
1. On a motion to dismiss a complaint, a court may not properly go beyond the four
corners of the complaint in testing the legal sufficiency of the allegations. Stubbs v. Plantation
General Hosp. Ltd. Partnership, 988 So.2d 683 (Fla. 4th DCA 2008). “A motion to dismiss is
designed to test the legal sufficiency of the complaint, not to determine factual issues.” The Fla.
Bar v. Greene, 926 So.2d 1195 (Fla.2006). To survive the motion to dismiss, “a complaint must
allege a prima facie case.” Alvarez v. E. & A. Produce Corp., 708 So. 2d 997 (Fla. 3d DCA
1998). If the plaintiff can prove no set of facts in support of the claim, the complaint should be
dismissed for failure to state a cause of action. Ingalsbe v. Stewart Agency. Inc., 869 So. 2d 30
(Fla. 4th DCA 2004). Although it is generally accepted that a plaintiff should be given an
opportunity to amend defective pleadings, if it is apparent that the defects cannot be amended to
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state a cause of action, the complaint must be dismissed. Gladstone v. Smith, 729 So. 2d 1002
(Fla. 4th DCA 1999); Kairalla v. John D. and Catherine T. MacArthur Foundation, 534 So. 2d
774 (Fla. 4th DCA 1988).
B. COUNT II OF PLAINTFF’S COMPLAINT IMPROPERLY ALLEGES
INDIVIDUAL LIABILITY AGAINST MR. MELLO
2. Plaintiff’s Complaint contains two (2) separate counts involving the alleged
breach of an express warranty contained in a bill of sale regarding the sale of an automobile from
CGM to Plaintiff. Those counts are for the alleged breach of an express warranty and are
asserted against CGM and Mr. Mello. However, Plaintiff’s count II, for breach of an express
warranty against Mr. Mello, is improperly plead. As a result, count II of Plaintiff’s Complaint is
deficient and should be dismissed.
3. Plaintiff states that Mr. Mello “executed the bill of sale both individually and as
president of CGM. (Complaint at ¶40).” However, this is simply incorrect.
4. The text of the bill of sale, which is attached to Plaintiff’s Complaint as Exhibit
A, in clear and plain language, states that “I Carlos Giovani AS, President of CGM General
Services Corp…” Later, at the bottom of the bill of sale, under a heading that states “SELLER’S
SIGNATURE,” Mr. Mello signed his name to the bill of sale document.
5. Therefore, it is clear that Mr. Mello signed the bill of sale in his corporate
capacity, as president of CGM, rather than in his individual capacity. It follows that Mr. Mello
cannot be sued in his individual capacity when he was not acting in such capacity during the sale
that is the subject of the instant matter.
6. Under Florida law, when exhibits are attached to a complaint, the contents of the
exhibits control over the allegations of the complaint. Duke v. HSBC Mortgage Services, LLC,
79 So. 3d 778 (Fla. 4th DCA 2011). See also Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d
399 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to
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the complaint, the plain meaning of the exhibits control and may be the basis for a motion to
dismiss.”).
7. In the instant litigation, Plaintiff attached the bill of sale in question. That bill of
sale clearly and unequivocally states that Mr. Mello signed the document in his capacity as
president of CGM. Therefore, there is no individual liability for Mr. Mello as he was not
involved in his individual capacity in this matter.
8. Additionally, Plaintiff has not alleged that the automobile was owed by Mr. Mello
in his individual capacity. Plaintiff may not impose individual liability on Mr. Mello without a
proper and legitimate basis to do so. In this instance, Plaintiff has failed to properly allege a
proper and legitimate basis to impose individual liability on Mr. Mello.
9. The contents of the bill of sale, which is attached as Exhibit A to Plaintiff’s
Complaint, contradict the allegations contained in Plaintiff’s Complaint. As a result, the contents
of the attached exhibit control. Consequently, the attached exhibit clearly shows that Mr. Mello
signed the bill of sale in his capacity as president of CGM. This defect is fatal to count II of
Plaintiff’s Complaint and necessitates a dismissal of that count.
C. PLAINTIFF’S COMPLAINT IMPROPERLY REQUESTS DAMAGES
FOR LOST PROFITS
10. Plaintiff’s “Prayer for Relief,” which is located at the end of its Complaint,
requests that this Court grant it a judgment that provides it with damages for lost profits.
However, that is not a proper measure of damages for a claim for the alleged breach of an
express warranty.
11. As stated above, Plaintiff’s Complaint centers on a claim for the alleged breach of
an express warranty by CGM and Mr. Mello. These are the only claims involved in Plaintiff’s
Complaint.
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12. Plaintiff has not alleged the existence of an implied warranty of fitness for a
particular purpose. Further, Plaintiff has not alleged that the automobile was sold for a particular
purpose. In fact, there is no implied warranty of fitness for a particular purpose in the instant
matter.
13. Plaintiff has merely alleged that CGM and Mr. Mello provided an express
warranty covering the engine of an automobile. The Complaint does not contain a single
allegation that would give rise to a claim for the breach of an implied warranty for a particular
purpose.
14. However, Plaintiff requests damages for alleged lost profits. This is a measure of
damages reserved for the breach of an implied warranty for a particular purpose. A claim that is
not involved in the instant lawsuit.
15. Conversely, lost profits are not a proper measure of damages for a claim for the
breach of an express warranty. Despite these facts, Plaintiff has included the recovery of lost
profits in its “Prayer for Relief.” This is improper.
16. Plaintiff failed to properly plead a cause of action that would allow it to recover
lost profits. Essentially, Plaintiff alleged the breach of an express warranty but is seeking
damages for the breach of an implied warranty of fitness for a particular purpose. This is
improper and necessitates the dismissal of this action.
D. PLAINTIFF IMPROPERLY PLEADS A REQUEST FOR ATTORNEYS’
FEES
17. Plaintiff’s Complaint also states that it is “entitled to recover reasonable
attorney’s fees incurred in connection with this action pursuant to Florida Statutes. (Complaint at
¶48).” However, this is simply wrong.
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18. Under Florida law, attorneys’ fees are not recoverable unless a statute or a
contract specifically authorizes their recovery. Hampton’s Estate v. Fairchild-Florida
Construction Co., 341 So. 2d 759 (Fla. 1976).
19. The Plaintiff is not entitled to recover attorneys’ fees and costs from CGM or Mr.
Mello pursuant to a contract. In fact, Plaintiff does not even allege that the bill of sale in this
matter is a basis for recovering attorneys’ fees. Therefore, the only remaining basis for the
recovery of attorneys’ fees in this matter is pursuant to a statute.
20. In its Complaint, Plaintiff references two (2) separate Florida Statutes. Those
statutes are Section 672.707(3), Florida Statutes, and Section 672.313, Florida Statutes. Both of
these statutes deal with express warranties under the Uniform Commercial Code. However,
neither of these statutes contains a provision that authorizes the recovery of attorneys’ fees.
21. Therefore, Plaintiff has failed to properly plead a basis for the recovery of
attorneys’ fees in this matter. Despite not having a basis to do so, Plaintiff requests the recovery
of attorneys’ fees in this matter. This is improper.
22. Plaintiff failed to properly plead its entitlement to attorneys’ fees in the instant
matter. Additionally, Plaintiff has not properly plead a basis for attorneys’ fees in this matter.
These defects are fatal to count II of Plaintiff’s Complaint and necessitate its dismissal.
WHEREFORE, CGM and Mr. Mello respectfully request that this Honorable Court grant
CGM and Mr. Mello’s Motion to Dismiss Plaintiff’s Complaint, including denying any claim for
lost profits, denying any claim for attorneys’ fees, and granting any other relief to CGM and Mr.
Mello that this Honorable Court deems just and necessary.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on the 4th day of January, 2016, we electronically filed the
foregoing with the Clerk of the Courts by using the ECF system which will send a notice of
electronic filing to the following: Matthew G. DeBoard, Esq., Barrister Law Firm, P.A., 1508 E.
Concord Street, Orlando, FL 32803.
WILLIAMS LAW FIRM
/s/ Christian Graham
GLENN T. WILLIAMS, ESQUIRE, B.C.S.
Board Certified in Construction Law
Florida Bar No.: 148237
CHRISTIAN GRAHAM, ESQUIRE
Florida Bar No.: 94245
2273 Lee Road, Suite 200
Winter Park, Florida 32789
Primary Email: Service@WCLFirm.com
Secondary Email: Glenn@WCLFirm.com
Christian@WCLFirm.com
Phone: (407) 926-4100
Facsimile: (407) 926-4105
Counsel for CGM General Service, Corp., and
Carlos Giovanni Mello
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Preview
Filing # 36118910 E-Filed 01/04/2016 04:02:44 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA MDC PROPERTY INVESTMENT, LLC, CASE NO.: 2015-CA-10894-O a Florida Corporation, Plaintiff, v. CGM GENERAL SERVICE CORP., a Florida Corporation, and CARLOS GIOVANNI MELLO, an individual, Defendants. _____________________________________________/ DEFENDANTS CGM GENERAL SERVICES CORP., AND CARLOS GIOVANNI MELLO’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT Defendants, CGM General Service Corp. (“CGM”), and Carlos Giovanni Mello (“Mr. Mello”), through counsel, pursuant to Fla. R. Civ. P. 1.130 and Fla. R. Civ. P. 1.140, file this Motion to Dismiss as to MDC Property Investment, LLC’s (“Plaintiff”) Complaint, and state: A. THE STANDARD FOR DECIDING A MOTION TO DISMISS 1. On a motion to dismiss a complaint, a court may not properly go beyond the four corners of the complaint in testing the legal sufficiency of the allegations. Stubbs v. Plantation General Hosp. Ltd. Partnership, 988 So.2d 683 (Fla. 4th DCA 2008). “A motion to dismiss is designed to test the legal sufficiency of the complaint, not to determine factual issues.” The Fla. Bar v. Greene, 926 So.2d 1195 (Fla.2006). To survive the motion to dismiss, “a complaint must allege a prima facie case.” Alvarez v. E. & A. Produce Corp., 708 So. 2d 997 (Fla. 3d DCA 1998). If the plaintiff can prove no set of facts in support of the claim, the complaint should be dismissed for failure to state a cause of action. Ingalsbe v. Stewart Agency. Inc., 869 So. 2d 30 (Fla. 4th DCA 2004). Although it is generally accepted that a plaintiff should be given an opportunity to amend defective pleadings, if it is apparent that the defects cannot be amended to 1 state a cause of action, the complaint must be dismissed. Gladstone v. Smith, 729 So. 2d 1002 (Fla. 4th DCA 1999); Kairalla v. John D. and Catherine T. MacArthur Foundation, 534 So. 2d 774 (Fla. 4th DCA 1988). B. COUNT II OF PLAINTFF’S COMPLAINT IMPROPERLY ALLEGES INDIVIDUAL LIABILITY AGAINST MR. MELLO 2. Plaintiff’s Complaint contains two (2) separate counts involving the alleged breach of an express warranty contained in a bill of sale regarding the sale of an automobile from CGM to Plaintiff. Those counts are for the alleged breach of an express warranty and are asserted against CGM and Mr. Mello. However, Plaintiff’s count II, for breach of an express warranty against Mr. Mello, is improperly plead. As a result, count II of Plaintiff’s Complaint is deficient and should be dismissed. 3. Plaintiff states that Mr. Mello “executed the bill of sale both individually and as president of CGM. (Complaint at ¶40).” However, this is simply incorrect. 4. The text of the bill of sale, which is attached to Plaintiff’s Complaint as Exhibit A, in clear and plain language, states that “I Carlos Giovani AS, President of CGM General Services Corp…” Later, at the bottom of the bill of sale, under a heading that states “SELLER’S SIGNATURE,” Mr. Mello signed his name to the bill of sale document. 5. Therefore, it is clear that Mr. Mello signed the bill of sale in his corporate capacity, as president of CGM, rather than in his individual capacity. It follows that Mr. Mello cannot be sued in his individual capacity when he was not acting in such capacity during the sale that is the subject of the instant matter. 6. Under Florida law, when exhibits are attached to a complaint, the contents of the exhibits control over the allegations of the complaint. Duke v. HSBC Mortgage Services, LLC, 79 So. 3d 778 (Fla. 4th DCA 2011). See also Hunt Ridge at Tall Pines, Inc. v. Hall, 766 So. 2d 399 (Fla. 2d DCA 2000) (“Where complaint allegations are contradicted by exhibits attached to 2 the complaint, the plain meaning of the exhibits control and may be the basis for a motion to dismiss.”). 7. In the instant litigation, Plaintiff attached the bill of sale in question. That bill of sale clearly and unequivocally states that Mr. Mello signed the document in his capacity as president of CGM. Therefore, there is no individual liability for Mr. Mello as he was not involved in his individual capacity in this matter. 8. Additionally, Plaintiff has not alleged that the automobile was owed by Mr. Mello in his individual capacity. Plaintiff may not impose individual liability on Mr. Mello without a proper and legitimate basis to do so. In this instance, Plaintiff has failed to properly allege a proper and legitimate basis to impose individual liability on Mr. Mello. 9. The contents of the bill of sale, which is attached as Exhibit A to Plaintiff’s Complaint, contradict the allegations contained in Plaintiff’s Complaint. As a result, the contents of the attached exhibit control. Consequently, the attached exhibit clearly shows that Mr. Mello signed the bill of sale in his capacity as president of CGM. This defect is fatal to count II of Plaintiff’s Complaint and necessitates a dismissal of that count. C. PLAINTIFF’S COMPLAINT IMPROPERLY REQUESTS DAMAGES FOR LOST PROFITS 10. Plaintiff’s “Prayer for Relief,” which is located at the end of its Complaint, requests that this Court grant it a judgment that provides it with damages for lost profits. However, that is not a proper measure of damages for a claim for the alleged breach of an express warranty. 11. As stated above, Plaintiff’s Complaint centers on a claim for the alleged breach of an express warranty by CGM and Mr. Mello. These are the only claims involved in Plaintiff’s Complaint. 3 12. Plaintiff has not alleged the existence of an implied warranty of fitness for a particular purpose. Further, Plaintiff has not alleged that the automobile was sold for a particular purpose. In fact, there is no implied warranty of fitness for a particular purpose in the instant matter. 13. Plaintiff has merely alleged that CGM and Mr. Mello provided an express warranty covering the engine of an automobile. The Complaint does not contain a single allegation that would give rise to a claim for the breach of an implied warranty for a particular purpose. 14. However, Plaintiff requests damages for alleged lost profits. This is a measure of damages reserved for the breach of an implied warranty for a particular purpose. A claim that is not involved in the instant lawsuit. 15. Conversely, lost profits are not a proper measure of damages for a claim for the breach of an express warranty. Despite these facts, Plaintiff has included the recovery of lost profits in its “Prayer for Relief.” This is improper. 16. Plaintiff failed to properly plead a cause of action that would allow it to recover lost profits. Essentially, Plaintiff alleged the breach of an express warranty but is seeking damages for the breach of an implied warranty of fitness for a particular purpose. This is improper and necessitates the dismissal of this action. D. PLAINTIFF IMPROPERLY PLEADS A REQUEST FOR ATTORNEYS’ FEES 17. Plaintiff’s Complaint also states that it is “entitled to recover reasonable attorney’s fees incurred in connection with this action pursuant to Florida Statutes. (Complaint at ¶48).” However, this is simply wrong. 4 18. Under Florida law, attorneys’ fees are not recoverable unless a statute or a contract specifically authorizes their recovery. Hampton’s Estate v. Fairchild-Florida Construction Co., 341 So. 2d 759 (Fla. 1976). 19. The Plaintiff is not entitled to recover attorneys’ fees and costs from CGM or Mr. Mello pursuant to a contract. In fact, Plaintiff does not even allege that the bill of sale in this matter is a basis for recovering attorneys’ fees. Therefore, the only remaining basis for the recovery of attorneys’ fees in this matter is pursuant to a statute. 20. In its Complaint, Plaintiff references two (2) separate Florida Statutes. Those statutes are Section 672.707(3), Florida Statutes, and Section 672.313, Florida Statutes. Both of these statutes deal with express warranties under the Uniform Commercial Code. However, neither of these statutes contains a provision that authorizes the recovery of attorneys’ fees. 21. Therefore, Plaintiff has failed to properly plead a basis for the recovery of attorneys’ fees in this matter. Despite not having a basis to do so, Plaintiff requests the recovery of attorneys’ fees in this matter. This is improper. 22. Plaintiff failed to properly plead its entitlement to attorneys’ fees in the instant matter. Additionally, Plaintiff has not properly plead a basis for attorneys’ fees in this matter. These defects are fatal to count II of Plaintiff’s Complaint and necessitate its dismissal. WHEREFORE, CGM and Mr. Mello respectfully request that this Honorable Court grant CGM and Mr. Mello’s Motion to Dismiss Plaintiff’s Complaint, including denying any claim for lost profits, denying any claim for attorneys’ fees, and granting any other relief to CGM and Mr. Mello that this Honorable Court deems just and necessary. 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 4th day of January, 2016, we electronically filed the foregoing with the Clerk of the Courts by using the ECF system which will send a notice of electronic filing to the following: Matthew G. DeBoard, Esq., Barrister Law Firm, P.A., 1508 E. Concord Street, Orlando, FL 32803. WILLIAMS LAW FIRM /s/ Christian Graham GLENN T. WILLIAMS, ESQUIRE, B.C.S. Board Certified in Construction Law Florida Bar No.: 148237 CHRISTIAN GRAHAM, ESQUIRE Florida Bar No.: 94245 2273 Lee Road, Suite 200 Winter Park, Florida 32789 Primary Email: Service@WCLFirm.com Secondary Email: Glenn@WCLFirm.com Christian@WCLFirm.com Phone: (407) 926-4100 Facsimile: (407) 926-4105 Counsel for CGM General Service, Corp., and Carlos Giovanni Mello 6