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Filing # 106720236 E-Filed 04/27/2020 11:09:27 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
HARRY BIEBERSTEIN,
Plaintiff,
vs. CASE NO.: 17-CA-917
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC, a
Florida limited liability company and
MOONSTONE HOLDINDINGS, LLC, a
Nevada limited liability company,
Defendants.
MOTION TO STRIKE PLAINTIFF’S NOTICE FOR TRIAL
Gabriel Kirchberger, moves to the Court for entry of an Order Striking the Notice for Trial
filed by Plaintiff and states:
1 The setting of matters for trial is governed by Rule 1.440(a) of the Florida Rules of
Civil Procedure. That rule provides:
1.440 Setting Action for Trial
(a) When at Issue. An action is at issue after any motions directed to the
last pleading served have been disposed of or, ifno such motions are
served, 20 days after service of the last pleading. The party entitled to serve
motions directed to the last pleading may waive the right to do so by filing a
notice for trial at any time after the last pleading is served. The existence of
crossclaims among the parties shall not prevent the court from setting the
action for trial on the issues raised by the complaint, answer, and any
answer to a counterclaim.
(b) Notice for Trial. Thereafter any party may file and serve a notice that
the action is at issue and ready to be set for trial. The notice shall include an
estimate of the time required, whether the trial is to be by a jury or not, and
whether the trial is on the original action or a subsequent proceeding. The
clerk shall then submit the notice and the case file to the court.
(c) Setting for Trial. If the court finds the action ready to be set for trial, it
shall enter an order fixing a date for trial. Trial shall be set not less than 30
days from the service of the notice for trial. By giving the same notice the
court may set an action for trial. In actions in which the damages are not
liquidated, the order setting an action for trial shall be served on parties who
are in default in accordance with ra
Thus, pursuant to the rule, a matter is not at issue and ready to be set for trial if there are pending
motions directed to the pleadings. Kubera v. Fisher, 483 So.2d 836 (Fla. 2°4 DCA 1986) and Loss
y. Loss, 608 So.2d 39 (Fla. 4" DCA 1982) decision clarified on Denial of Rehearing (October 28,
1992).
2. The purpose of the procedure is such that a Court will not set a matter for trial until
the party entitled to file a Motion directed to last pleadings is afforded a reasonable opportunity to
have the Motion decided by the Court. If there are multiple Defendants, the case must be at issue
as to the claims and defenses between the Plaintiff and each of the Defendants before the Court
may properly set the case for trial. Roundtree v. Roundtree, 72 So.2d 794 (Fla. 1954).
3 The case is said to be ready for trial when it is at issue but in this context “ready”
is used in a legal sense to mean that the pleadings are closed. 5 FL. PRAC. Section 15:82, West
Florida Practice Series, Setting Cases for Trial — When Case it at Issue.
4 In this case, the following Motions (filed by Plaintiff) are directed to the pleadings
and have not been heard by the Court:
(a) Plaintiff's Reply and Motion to Strike Carole Deville and Southern Shore
Enterprise LLC Affirmative Defenses (DIN: 164) filed April 14, 2020;
(b) Plaintiff's Reply to and Motion to Strike Golden Key Properties, LLC, and
Andreas Kirchberger Affirmative Defenses (DIN: 165) filed April 16, 2020;
(c) Plaintiffs Reply and Motion to Strike Gabriel Kirchberger Affirmative
Defenses (DIN: 166) filed April 20, 2020; and
(@d) Plaintiff's Reply to and Motion to Strike Moonstone Holding LLC,
Christine Frazer and Niclas Kirchberger Affirmative (DIN: 167) filed April 20, 2020.
In light of the foregoing, Plaintiff's Notice is not well taken and must be denied by this Court. The
case does not meet the legal criteria under Florida Rule of Civil Procedure 1.440 as the case is not
“at issue and ready for trial.”
WHEREFORE, Gabriel Kirchberger moves the Court for entry of an Order Striking
Plaintiff's Notice for Trial on the grounds stated herein.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by
Electronic Mail to: RYAN W. OWEN, ESQUIRE, Adams and Reese LLP, 1515 Ringling
Boulevard Suite 700, Sarasota, Florida 34236 (ryan.owen@arlaw.com)
drew.chesanek@arlaw.com) (deborah.woodson@arlaw.com); DAVID K. OAKS, ESQUIRE,
David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950
(doaksesq@comeast.net); ROBERT E. SEGUR, ESQUIRE, 1460 S. McCall Road, Suite 2E,
Englewood, Florida 34223; BRIAN McNAMARA, ESQUIRE, McNamara Legal Services, P.A.,
3447 Pine Ridge Road, Suite 101, Naples, Florida 34109 (brian@mecnamaralegalservices.com);
SEBASTIAN NYE-SCHMITZ, ESQUIRE, The Nye-Schmitz Law Firm, P.A., 3447 Pine Ridge
Road, Suite 101, Naples, Florida 34109 (. sns@swfitaxlaw.com); and a true and correct copy has
been furnished by Regular U.S. Mail to: ANDREAS KIRCHBERGER, 393 Commercial Court,
Suite A, Venice, Florida 34292 and Golden Key Properties, LLC, c/o The Nye-Schmitz Law Firm,
P.A., Registered Agent, 3447 Pine Ridge Road, Suite 101, Naples, Florida 34109 on this 27% day
of April, 2020.
GLENN N. SIEGEL, P.A.
17825 Murdock Circle, Suite A
Port Charlotte, Florida 33948
(941) 255.1235
Fax: (941) 255.1223
Service E-Mail: kim@glennsiegellaw.com
By: 4s/ GLENN N. SIEGEL
Glenn N. Siegel, Esquire
Florida Bar No.: 436852
Attorney for Gabriel Kirchberger
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Filing # 106720236 E-Filed 04/27/2020 11:09:27 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA HARRY BIEBERSTEIN, Plaintiff, vs. CASE NO.: 17-CA-917 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company and MOONSTONE HOLDINDINGS, LLC, a Nevada limited liability company, Defendants. MOTION TO STRIKE PLAINTIFF’S NOTICE FOR TRIAL Gabriel Kirchberger, moves to the Court for entry of an Order Striking the Notice for Trial filed by Plaintiff and states: 1 The setting of matters for trial is governed by Rule 1.440(a) of the Florida Rules of Civil Procedure. That rule provides: 1.440 Setting Action for Trial (a) When at Issue. An action is at issue after any motions directed to the last pleading served have been disposed of or, ifno such motions are served, 20 days after service of the last pleading. The party entitled to serve motions directed to the last pleading may waive the right to do so by filing a notice for trial at any time after the last pleading is served. The existence of crossclaims among the parties shall not prevent the court from setting the action for trial on the issues raised by the complaint, answer, and any answer to a counterclaim. (b) Notice for Trial. Thereafter any party may file and serve a notice that the action is at issue and ready to be set for trial. The notice shall include an estimate of the time required, whether the trial is to be by a jury or not, and whether the trial is on the original action or a subsequent proceeding. The clerk shall then submit the notice and the case file to the court. (c) Setting for Trial. If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial. Trial shall be set not less than 30 days from the service of the notice for trial. By giving the same notice the court may set an action for trial. In actions in which the damages are not liquidated, the order setting an action for trial shall be served on parties who are in default in accordance with ra Thus, pursuant to the rule, a matter is not at issue and ready to be set for trial if there are pending motions directed to the pleadings. Kubera v. Fisher, 483 So.2d 836 (Fla. 2°4 DCA 1986) and Loss y. Loss, 608 So.2d 39 (Fla. 4" DCA 1982) decision clarified on Denial of Rehearing (October 28, 1992). 2. The purpose of the procedure is such that a Court will not set a matter for trial until the party entitled to file a Motion directed to last pleadings is afforded a reasonable opportunity to have the Motion decided by the Court. If there are multiple Defendants, the case must be at issue as to the claims and defenses between the Plaintiff and each of the Defendants before the Court may properly set the case for trial. Roundtree v. Roundtree, 72 So.2d 794 (Fla. 1954). 3 The case is said to be ready for trial when it is at issue but in this context “ready” is used in a legal sense to mean that the pleadings are closed. 5 FL. PRAC. Section 15:82, West Florida Practice Series, Setting Cases for Trial — When Case it at Issue. 4 In this case, the following Motions (filed by Plaintiff) are directed to the pleadings and have not been heard by the Court: (a) Plaintiff's Reply and Motion to Strike Carole Deville and Southern Shore Enterprise LLC Affirmative Defenses (DIN: 164) filed April 14, 2020; (b) Plaintiff's Reply to and Motion to Strike Golden Key Properties, LLC, and Andreas Kirchberger Affirmative Defenses (DIN: 165) filed April 16, 2020; (c) Plaintiffs Reply and Motion to Strike Gabriel Kirchberger Affirmative Defenses (DIN: 166) filed April 20, 2020; and (@d) Plaintiff's Reply to and Motion to Strike Moonstone Holding LLC, Christine Frazer and Niclas Kirchberger Affirmative (DIN: 167) filed April 20, 2020. In light of the foregoing, Plaintiff's Notice is not well taken and must be denied by this Court. The case does not meet the legal criteria under Florida Rule of Civil Procedure 1.440 as the case is not “at issue and ready for trial.” WHEREFORE, Gabriel Kirchberger moves the Court for entry of an Order Striking Plaintiff's Notice for Trial on the grounds stated herein. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Electronic Mail to: RYAN W. OWEN, ESQUIRE, Adams and Reese LLP, 1515 Ringling Boulevard Suite 700, Sarasota, Florida 34236 (ryan.owen@arlaw.com) drew.chesanek@arlaw.com) (deborah.woodson@arlaw.com); DAVID K. OAKS, ESQUIRE, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950 (doaksesq@comeast.net); ROBERT E. SEGUR, ESQUIRE, 1460 S. McCall Road, Suite 2E, Englewood, Florida 34223; BRIAN McNAMARA, ESQUIRE, McNamara Legal Services, P.A., 3447 Pine Ridge Road, Suite 101, Naples, Florida 34109 (brian@mecnamaralegalservices.com); SEBASTIAN NYE-SCHMITZ, ESQUIRE, The Nye-Schmitz Law Firm, P.A., 3447 Pine Ridge Road, Suite 101, Naples, Florida 34109 (. sns@swfitaxlaw.com); and a true and correct copy has been furnished by Regular U.S. Mail to: ANDREAS KIRCHBERGER, 393 Commercial Court, Suite A, Venice, Florida 34292 and Golden Key Properties, LLC, c/o The Nye-Schmitz Law Firm, P.A., Registered Agent, 3447 Pine Ridge Road, Suite 101, Naples, Florida 34109 on this 27% day of April, 2020. GLENN N. SIEGEL, P.A. 17825 Murdock Circle, Suite A Port Charlotte, Florida 33948 (941) 255.1235 Fax: (941) 255.1223 Service E-Mail: kim@glennsiegellaw.com By: 4s/ GLENN N. SIEGEL Glenn N. Siegel, Esquire Florida Bar No.: 436852 Attorney for Gabriel Kirchberger