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Filing # 66010643 E-Filed 01/02/2018 08:00:46 PM
IN THE CIRCUIT COURT OF THE 13TH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
(CIVIL DIVISION)
CASE NO.: 16-CA-722
NOELIA RAMIREZ,
Plaintiff,
v.
BANK OF AMERICA, N.A.,
Defendant.
/
MOTION IN LIMINE TO PRECLUDE EVIDENCE SPECIAL DAMAGES
Defendant Bank of America, N.A. (“BANA”), by and through the undersigned counsel,
hereby moves this Honorable Court for an order precluding Plaintiff Noelia Ramirez
(“Ramirez”) from offering any evidence of special damages at trial. In support, thereof, BANA
states the following:
Background
1. Ramirez initiated this action on January 26, 2016, alleging claims for: (1) fraud,
(2) negligence, (3) violation of the Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”), (4) breach of fiduciary duty, and (5) unjust enrichment. Ramirez’s claims arise
from misconduct allegedly committed when she applied for a loan modification between August
2009 and May 2011.
2. This case is set for trial beginning the week of January 8, 2018.
3. Ramirez did not plead any special damages in the instant Complaint.
4. On January 2, 2018, Ramirez for the first time alleged the following three claims
for special damages by incorporating it her proposed Pre Trial Conference Order.
a. HAMP Trial Payments made to BANA
LIEBLER, GONZALEZ & PORTUONDO
Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130
(305) 379-0400
1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
CASE NO.: 16-CA-722
b. Treble damages under the Florida Deceptive and Unfair Trade Practices Act
(Florida Statutes Section 501.201, et. seq.).
c. $10,000.00 reduced principal balance if Ramirez had been granted a
modification.
Argument
Ramirezshould b precluded from offering evidence of special damages because Ramirez
did not specifically plead special damages in her Complaint as required by Florida Rule of Civil
Procedure 1.120(g). Further,the Florida Deceptive and Unfair Trade Practices Act does not allow
for treble damages, and even if it did, Plaintiff did not request treble damages in her complaint.
Florida Rule of Civil Procedure 1.120(g) requires that items of special damages be
“specifically stated” or pled with specificity. See Precision Tune Auto Care, Inc. v. Radcliffe,
804 So. 2d 1287, 292 (Fla. 4th DCA 2002); see also Robbins v. McGrath, 955 So. 2d 633, 634
(Fla. 1stDCA 2007) (“[a]ttorney’s fees awarded pursuant to the wrongful conduct act doctrine
are special damages, and therefore, must be specifically pled”). Special damages are considered
to be the natural, but not necessary, result of an alleged wrong or breach of contract. Augustine v.
So. Bell Tel. & Tel. Co., 91 So. 2d 320, 324 (Fla. 1956). The failure to plead special damages
precludes the introduction of evidence at trial in support of such damages. See Fla. R. Civ. P.
1.120, Authors’ Comment (1867) (“[S]pecial damages must be specifically pleaded, if evidence
concerning them is to be admissible.”). It is automatic reversible error for a court to admit special
damages at trial that were never pled. Alderman v. Murphy, 486 So. 2d 1334, 1338 (Fla. 4th DCA
1986). Moreover, a defendant’s knowledge of the claimed special damages does not excuse the
pleading requirement. Land Title of Cent. Fla., LLC v. Jimenez, 946 So. 2d 90, 93 (Fla. 5th DCA
2006).
–2–
LIEBLER, GONZALEZ & PORTUONDO
Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130
(305) 379-0400
1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2
CASE NO.: 16-CA-722
Here, Ramirez did not plead special damages in her Complaint. The Order setting this
case for trial was entered on September 18, 2017. However, Ramirez made no mention of the
special damages described in the draft Pre-Trial Conference Order until January 2, 2018. As
such, Ramirez failed to comply with Fla. R. Civ. P. 1.120(g). Therefore, Ramirez’s damages
must be stricken or Ramirez must be precluded from offering evidence of special damages at
trial.
Additionally, Ramirez is seeking treble damages under the Florida Deceptive and Unfair
Trade Practices Act (Florida Statutes section 501.201, et. seq.). Again, Ramirez did not request
treble damages in her complaint. Furthermore, Florida Statutes section 501.201 does not provide
for treble damages and Ramirez did not request treble damages in her complaint. Accordingly,
Ramirez must be precluded from offering evidence of special damages at trial.
WHEREFORE, Bank of America, requests this Court enter an Order precluding Noelia
Ramirez’s request for relief in the form of special and treble damages, and precluding Noelia
Ramirez from offering evidence of special and treble damages at trial, and any other relief this
Court deems appropriate.
LIEBLER, GONZALEZ & PORTUONDO
Attorneys for Bank of America N.A.
Courthouse Tower - 25th Floor
44 West Flagler Street
Miami, FL 33130
(305) 379-0400
service@lgplaw.com
By: /s/ Ricardo Clergé-Apollon
JESSICA A. VOSSEKUIL
Florida Bar No. 71025
RICARDO CLERGÉ-APOLLON
Florida Bar No. 119731
–3–
LIEBLER, GONZALEZ & PORTUONDO
Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130
(305) 379-0400
1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
CASE NO.: 16-CA-722
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of January, 2018, I electronically filed the
foregoing with the Clerk of Courts by using the Florida Courts E-filing Portal which will send a
notice of electronic filing to the following: John W. Adams, Jr. Esquire
(jadams@adamslawassociation.com)(paralegal@adamslawassociation.com), Adams Law
Association, P.A., 1074 Bloomingdale Ave., Valrico, FL 33596.
/s/ Ricardo Clergé-Apollon
RICARDO CLERGÉ-APOLLON
–4–
LIEBLER, GONZALEZ & PORTUONDO
Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130
(305) 379-0400
1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4
Preview
Filing # 66010643 E-Filed 01/02/2018 08:00:46 PM IN THE CIRCUIT COURT OF THE 13TH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA (CIVIL DIVISION) CASE NO.: 16-CA-722 NOELIA RAMIREZ, Plaintiff, v. BANK OF AMERICA, N.A., Defendant. / MOTION IN LIMINE TO PRECLUDE EVIDENCE SPECIAL DAMAGES Defendant Bank of America, N.A. (“BANA”), by and through the undersigned counsel, hereby moves this Honorable Court for an order precluding Plaintiff Noelia Ramirez (“Ramirez”) from offering any evidence of special damages at trial. In support, thereof, BANA states the following: Background 1. Ramirez initiated this action on January 26, 2016, alleging claims for: (1) fraud, (2) negligence, (3) violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), (4) breach of fiduciary duty, and (5) unjust enrichment. Ramirez’s claims arise from misconduct allegedly committed when she applied for a loan modification between August 2009 and May 2011. 2. This case is set for trial beginning the week of January 8, 2018. 3. Ramirez did not plead any special damages in the instant Complaint. 4. On January 2, 2018, Ramirez for the first time alleged the following three claims for special damages by incorporating it her proposed Pre Trial Conference Order. a. HAMP Trial Payments made to BANA LIEBLER, GONZALEZ & PORTUONDO Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400 1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 CASE NO.: 16-CA-722 b. Treble damages under the Florida Deceptive and Unfair Trade Practices Act (Florida Statutes Section 501.201, et. seq.). c. $10,000.00 reduced principal balance if Ramirez had been granted a modification. Argument Ramirezshould b precluded from offering evidence of special damages because Ramirez did not specifically plead special damages in her Complaint as required by Florida Rule of Civil Procedure 1.120(g). Further,the Florida Deceptive and Unfair Trade Practices Act does not allow for treble damages, and even if it did, Plaintiff did not request treble damages in her complaint. Florida Rule of Civil Procedure 1.120(g) requires that items of special damages be “specifically stated” or pled with specificity. See Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 292 (Fla. 4th DCA 2002); see also Robbins v. McGrath, 955 So. 2d 633, 634 (Fla. 1stDCA 2007) (“[a]ttorney’s fees awarded pursuant to the wrongful conduct act doctrine are special damages, and therefore, must be specifically pled”). Special damages are considered to be the natural, but not necessary, result of an alleged wrong or breach of contract. Augustine v. So. Bell Tel. & Tel. Co., 91 So. 2d 320, 324 (Fla. 1956). The failure to plead special damages precludes the introduction of evidence at trial in support of such damages. See Fla. R. Civ. P. 1.120, Authors’ Comment (1867) (“[S]pecial damages must be specifically pleaded, if evidence concerning them is to be admissible.”). It is automatic reversible error for a court to admit special damages at trial that were never pled. Alderman v. Murphy, 486 So. 2d 1334, 1338 (Fla. 4th DCA 1986). Moreover, a defendant’s knowledge of the claimed special damages does not excuse the pleading requirement. Land Title of Cent. Fla., LLC v. Jimenez, 946 So. 2d 90, 93 (Fla. 5th DCA 2006). –2– LIEBLER, GONZALEZ & PORTUONDO Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400 1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 CASE NO.: 16-CA-722 Here, Ramirez did not plead special damages in her Complaint. The Order setting this case for trial was entered on September 18, 2017. However, Ramirez made no mention of the special damages described in the draft Pre-Trial Conference Order until January 2, 2018. As such, Ramirez failed to comply with Fla. R. Civ. P. 1.120(g). Therefore, Ramirez’s damages must be stricken or Ramirez must be precluded from offering evidence of special damages at trial. Additionally, Ramirez is seeking treble damages under the Florida Deceptive and Unfair Trade Practices Act (Florida Statutes section 501.201, et. seq.). Again, Ramirez did not request treble damages in her complaint. Furthermore, Florida Statutes section 501.201 does not provide for treble damages and Ramirez did not request treble damages in her complaint. Accordingly, Ramirez must be precluded from offering evidence of special damages at trial. WHEREFORE, Bank of America, requests this Court enter an Order precluding Noelia Ramirez’s request for relief in the form of special and treble damages, and precluding Noelia Ramirez from offering evidence of special and treble damages at trial, and any other relief this Court deems appropriate. LIEBLER, GONZALEZ & PORTUONDO Attorneys for Bank of America N.A. Courthouse Tower - 25th Floor 44 West Flagler Street Miami, FL 33130 (305) 379-0400 service@lgplaw.com By: /s/ Ricardo Clergé-Apollon JESSICA A. VOSSEKUIL Florida Bar No. 71025 RICARDO CLERGÉ-APOLLON Florida Bar No. 119731 –3– LIEBLER, GONZALEZ & PORTUONDO Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400 1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 CASE NO.: 16-CA-722 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2nd day of January, 2018, I electronically filed the foregoing with the Clerk of Courts by using the Florida Courts E-filing Portal which will send a notice of electronic filing to the following: John W. Adams, Jr. Esquire (jadams@adamslawassociation.com)(paralegal@adamslawassociation.com), Adams Law Association, P.A., 1074 Bloomingdale Ave., Valrico, FL 33596. /s/ Ricardo Clergé-Apollon RICARDO CLERGÉ-APOLLON –4– LIEBLER, GONZALEZ & PORTUONDO Courthouse Tower - 25th Floor, 44 West Flagler Street, Miami, FL 33130 (305) 379-0400 1/2/2018 8:00 PM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4