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Filing # 63124306 E-Filed 10/20/2017 02:56:06 PM
IN THE CIRCUIT COURT OF THE 11"
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO. 2017-014568-CA-01
951 HARBOR DRIVE, LLC a Florida
limited liability company,
Plaintiffs,
vs.
SD CONSTRUCTION, LLC, a Florida
limited liability company, MERICK ROOFING,
INC. a Florida corporation, and
N. OSCAR GONZALEZ, E., and individual,
Defendants.
DEFENDANT, N. OSCAR GONZALEZ, PE’S
MOTION TO DISMISS COMPLAINT
Defendant, N. Oscar Gonzalez, PE (“Gonzalez”), pursuant to Rule 1.140 of the Florida
Rules of Civil Procedure, files this Motion to Dismiss Complaint, and in support states as follows.
INTRODUCTION
Based on the allegations set forth in the Complaint and the attachments, the Complaint
should be dismissed in its entirety as to Gonzalez because Plaintiff failed to join indispensable
parties; to wit: Privilege Underwriters Reciprocal Exchange (PURE), Joaquin A. Ribadeneira
Quevedo (“Quevedo”) and Maria D. Gomez Mendizabal (“Mendizabal”).! Plaintiff is the owner
1 Florida Rule of Civil Procedure 1.140(b)(7) provides that the defense of failure to join
indispensable parties may be made by motion at the option of the pleader. See City National Bank
of Miami v. Simmons, 351 So. 2d 1109 (Fla. 4th DCA 1977) (a motion to dismiss containing
sufficient facts and demonstrating why the indispensable parties are indispensable is the proper
vehicle to raise this issue.)
Page 1 of 5of the real property located at 951 Harbor Drive, Key Biscayne, Florida 33149 (the “Property”),
including the single-family home currently sitting thereon (the “Residence”). § 2 of Complaint
In or around late 2010 to early 2011, Plaintiff entered into a contract or agreement with Defendant,
SD Construction, LLC (“SD”) to demolish a then-existing home at the Property, and to construct
the Residence. § 9 of Complaint. Gonzalez was the engineer hired to provide engineering services
and oversee the construction of the Residence. §/5 of Complaint. Subsequent to the completion
of the Residence, Plaintiff noticed that there was some water intrusion into the Residence (the
“Incident”). § 10 of Complaint. As a result, Plaintiff made a claim with its homeowner’s
insurance company, PURE pursuant to an insurance policy issued by PURE to its insureds,
Plaintiff, Quevedo and Medizabal (collectively referred to as the “Insured”). § 11 Complaint.
PURE commissioned Axiom Engineering, Inc. (“Axiom”) to inspect the Residence to determine
“the cause and origin of the water damage and on March 8, 2016, Axiom released its findings
(“Axiom Report”). §12 of Complaint. Plaintiff uses the Axiom Report in this action as the basis
for its alleged causes of action. See {12 of Complaint. In response to the insurance claim made
by Plaintiff, Quevedo, and Mendizabal, PURE paid $226,789.12 and proceeded to file a
subrogation action against Defendants on behalf of its Insured (“Subrogation Action”).”
MEMORANDUM OF LAW.
I. LEGAL STANDARD
A motion to dismiss tests the sufficiency of a complaint within its four corners. Biscayne
Inv. Group, Ltd. vy. Guarantee Mgmt. Services, Inc., 903 So. 2d 251, 253 (Fla. 3d DCA 2005)
? The subrogation action is pending in the Circuit Court of the 11" Judicial Circuit in and for
Miami-Dade County, Florida and is styled Privilege Underwriters Reciprocal Exchange a/s/o
Joaquin A. Ribadeneira Quevedo, Maria D. Gomez Mendizabal, & 951 Harbor Drive, LLC vy. SD
Construction, LLC, Merick Roofing, Inc. and N. Oscar Gonzalez, PE, Case No. 17-6935 CA 15.
17-3201(citing Coriat v. Global Assurance Group, Inc., 862 So. 2d 743 (Fla. 3d DCA 2003)). The inquiry
for the trial court is “whether the complaint alleges sufficient ultimate facts that would entitle the
plaintiff to relief.” Biscayne Inv. Group, 903 So. 2d at 253 (citing Cohen v. American Home
Assurance Co., 367 So. 2d 677, 681 (Fla. 3d DCA 1979)). Well-plead facts are admitted, but “of
course, conclusions of law are not.” Wallace Bros. v. Yates, 117 So. 2d 202, 203 (Fla. 2d DCA
1960). Any exhibit attached to a pleading is considered a part of the pleading for all purposes. Len
Hazen Painters, Ine. v. Wood-Hopkins Const. Co., 396 So. 2d 1233 (Fla. 1st DCA 1981).
Florida Rule of Civil Procedure 1.140 provides that a plaintiff's failure to join an
indispensable party may be raised by motion. Specifically, Rule 1.140(b) states, in pertinent part,
as follows:
(b) How Presented. Every defense in law or fact to a claim for relief in a
pleading shall be asserted in the responsive pleading, if one is required, but
the following defenses may be made by motion at the option of the pleader
(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over
the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency
of service of process, (6) failure to state a cause of action, and (7) failure to
join indispensable parties. A motion making any of these defenses shall be
made before pleading if a further pleading is permitted. The grounds on
which any of the enumerated defenses are based and the substantial matters
of law intended to be argued shall be stated specifically and with particularity
in the responsive pleading or motion
“TA]n indispensable party is one whose interest in the controversy makes it impossible to
completely adjudicate the matter without affecting either that party's interests or the interest of
another party in the action.” Diaz v. Impex of Doral, Inc., 7 So.3d 591, 594 (Fla. 3d DCA 2009);
see also Fla. Dep't of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006); Glancy v. First W.
Bank, 802 So. 2d 498 (Fla. 4th DCA 2001) (Florida law defines “indispensable parties” to a law
suit as “‘[p]ersons who have not only an interest in the controversy, but an interest of such a nature
that a final decree cannot be made without either affecting that interest or leaving the controversy
17-3201in such a condition that its final termination may be wholly inconsistent with equity and good
conscience.””)(quoting Phillips v. Choate, 456 So. 2d 556, 557 (Fla. 4th DCA 1984))
I. PLAINTIFF FAILS TO NAME INDISPENSABLE PARTIES
Plaintiffs’ Complaint should be dismissed as it fails to join indispensable parties. The inclusion
of PURE, Quevedo and Mendizabal as parties is necessary for the Court to make a complete and
efficient resolution of this matter.
In this case, Plaintiff is alleging Gonzalez had a duty to exercise reasonable care in
performing his work at the Residence and that he breached that duty thereby causing damages. As
a result, Plaintiff made a claim with PURE, the homeowner’s insurance company. { 11 of
Complaint. PURE commissioned Axiom to inspect the Residence and to determine “the cause and
origin of the various water damage” and Axiom released its findings. § 12 of Complaint.
Plaintiffs allegations in this lawsuit are based on the Axiom Report that was prepared for the
purpose of addressing PURE, Quevedo and Mendizabal’s claim for damages caused by the
Incident
It is impossible to adjudicate the claims in the present lawsuit without including PURE,
Quevedo, and Mendizabal as parties. Essentially, this is the second lawsuit brought for damages
caused by the Incident. Plaintiffs make a misplaced attempt to distinguish the damages Plaintiff
is seeking in this lawsuit from the damages sought in the Subrogation Action by alleging it is
bringing this lawsuit not for the resulting property damages caused by the water intrusion, but
instead, for damages to cover the cost of repair. § 39 of Complaint. Undoubtedly, the attempt to
distinguish the damages caused by the Incident is clever but certainly not enough to prevent an
outcome in this action that will most likely be inconsistent with the outcome in the Subrogation
Action.
17-3201Accordingly, the Complaint must be dismissed for failure to join indispensable parties.
WHEREFORE, Defendant, N. Oscar Gonzalez, PE, respectfully requests that this Court
issue an Order dismissing the Complaint, granting him his attorneys’ fees and costs, together with
any such further relief this Court deems just and proper.
CERTIFICATE OF SERVICE
I HEREBY certify that a true and correct copy of the foregoing was sent via Email and any
other permitted method as specifically described on the service list to all parties on the attached
service List on this 20th day of October, 2017.
Respectfully Submitted,
JLP LEGAL
Park Place of Kendall I
13380 SW 128 Street, Miami, FL
33186 Tel: 305-273-3901
By: /s/ Elizabeth Y. Davies, Esq.
Elizabeth Y. Davies, Esq.
Fla Bar No.: 515231
Primary: service@jlplegal.com
Secondary: eyd@jlplegal.com
SERVICE LIST
Eric Sodhi, Esq. Robert J. Alwine, Esq.
Atty for Plaintiff Robert Joseph Alwine, P.A.
Sodhi Spoont PLLC 1441 Brickell A venue, Suite 1400
1000 Sth St, Ste 218 Miami, Florida 33131
Miami Beach, FL 33139-6510 robeli@robelialwine.com Attorneys for
Sent via Email: eric@sodhispoont.com SD Construction, LLC
Robeli J. Squire, Esq.
Vinod R. Bajnath, Esq.
Resnick & Louis, P.C
1001 Brickell Bay Drive,
Suite 2716 Miami, FL, 33131
rsquire@rlattomeys.com: vbajnath@rlattorneys.com
pearvajal @rlattorneys.com: ssanchez@rlattomeys.com
Attorneys for SD Construction, LLC
17-3201
Preview
Filing # 63124306 E-Filed 10/20/2017 02:56:06 PM IN THE CIRCUIT COURT OF THE 11" JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO. 2017-014568-CA-01 951 HARBOR DRIVE, LLC a Florida limited liability company, Plaintiffs, vs. SD CONSTRUCTION, LLC, a Florida limited liability company, MERICK ROOFING, INC. a Florida corporation, and N. OSCAR GONZALEZ, E., and individual, Defendants. DEFENDANT, N. OSCAR GONZALEZ, PE’S MOTION TO DISMISS COMPLAINT Defendant, N. Oscar Gonzalez, PE (“Gonzalez”), pursuant to Rule 1.140 of the Florida Rules of Civil Procedure, files this Motion to Dismiss Complaint, and in support states as follows. INTRODUCTION Based on the allegations set forth in the Complaint and the attachments, the Complaint should be dismissed in its entirety as to Gonzalez because Plaintiff failed to join indispensable parties; to wit: Privilege Underwriters Reciprocal Exchange (PURE), Joaquin A. Ribadeneira Quevedo (“Quevedo”) and Maria D. Gomez Mendizabal (“Mendizabal”).! Plaintiff is the owner 1 Florida Rule of Civil Procedure 1.140(b)(7) provides that the defense of failure to join indispensable parties may be made by motion at the option of the pleader. See City National Bank of Miami v. Simmons, 351 So. 2d 1109 (Fla. 4th DCA 1977) (a motion to dismiss containing sufficient facts and demonstrating why the indispensable parties are indispensable is the proper vehicle to raise this issue.) Page 1 of 5of the real property located at 951 Harbor Drive, Key Biscayne, Florida 33149 (the “Property”), including the single-family home currently sitting thereon (the “Residence”). § 2 of Complaint In or around late 2010 to early 2011, Plaintiff entered into a contract or agreement with Defendant, SD Construction, LLC (“SD”) to demolish a then-existing home at the Property, and to construct the Residence. § 9 of Complaint. Gonzalez was the engineer hired to provide engineering services and oversee the construction of the Residence. §/5 of Complaint. Subsequent to the completion of the Residence, Plaintiff noticed that there was some water intrusion into the Residence (the “Incident”). § 10 of Complaint. As a result, Plaintiff made a claim with its homeowner’s insurance company, PURE pursuant to an insurance policy issued by PURE to its insureds, Plaintiff, Quevedo and Medizabal (collectively referred to as the “Insured”). § 11 Complaint. PURE commissioned Axiom Engineering, Inc. (“Axiom”) to inspect the Residence to determine “the cause and origin of the water damage and on March 8, 2016, Axiom released its findings (“Axiom Report”). §12 of Complaint. Plaintiff uses the Axiom Report in this action as the basis for its alleged causes of action. See {12 of Complaint. In response to the insurance claim made by Plaintiff, Quevedo, and Mendizabal, PURE paid $226,789.12 and proceeded to file a subrogation action against Defendants on behalf of its Insured (“Subrogation Action”).” MEMORANDUM OF LAW. I. LEGAL STANDARD A motion to dismiss tests the sufficiency of a complaint within its four corners. Biscayne Inv. Group, Ltd. vy. Guarantee Mgmt. Services, Inc., 903 So. 2d 251, 253 (Fla. 3d DCA 2005) ? The subrogation action is pending in the Circuit Court of the 11" Judicial Circuit in and for Miami-Dade County, Florida and is styled Privilege Underwriters Reciprocal Exchange a/s/o Joaquin A. Ribadeneira Quevedo, Maria D. Gomez Mendizabal, & 951 Harbor Drive, LLC vy. SD Construction, LLC, Merick Roofing, Inc. and N. Oscar Gonzalez, PE, Case No. 17-6935 CA 15. 17-3201(citing Coriat v. Global Assurance Group, Inc., 862 So. 2d 743 (Fla. 3d DCA 2003)). The inquiry for the trial court is “whether the complaint alleges sufficient ultimate facts that would entitle the plaintiff to relief.” Biscayne Inv. Group, 903 So. 2d at 253 (citing Cohen v. American Home Assurance Co., 367 So. 2d 677, 681 (Fla. 3d DCA 1979)). Well-plead facts are admitted, but “of course, conclusions of law are not.” Wallace Bros. v. Yates, 117 So. 2d 202, 203 (Fla. 2d DCA 1960). Any exhibit attached to a pleading is considered a part of the pleading for all purposes. Len Hazen Painters, Ine. v. Wood-Hopkins Const. Co., 396 So. 2d 1233 (Fla. 1st DCA 1981). Florida Rule of Civil Procedure 1.140 provides that a plaintiff's failure to join an indispensable party may be raised by motion. Specifically, Rule 1.140(b) states, in pertinent part, as follows: (b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion “TA]n indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party's interests or the interest of another party in the action.” Diaz v. Impex of Doral, Inc., 7 So.3d 591, 594 (Fla. 3d DCA 2009); see also Fla. Dep't of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006); Glancy v. First W. Bank, 802 So. 2d 498 (Fla. 4th DCA 2001) (Florida law defines “indispensable parties” to a law suit as “‘[p]ersons who have not only an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest or leaving the controversy 17-3201in such a condition that its final termination may be wholly inconsistent with equity and good conscience.””)(quoting Phillips v. Choate, 456 So. 2d 556, 557 (Fla. 4th DCA 1984)) I. PLAINTIFF FAILS TO NAME INDISPENSABLE PARTIES Plaintiffs’ Complaint should be dismissed as it fails to join indispensable parties. The inclusion of PURE, Quevedo and Mendizabal as parties is necessary for the Court to make a complete and efficient resolution of this matter. In this case, Plaintiff is alleging Gonzalez had a duty to exercise reasonable care in performing his work at the Residence and that he breached that duty thereby causing damages. As a result, Plaintiff made a claim with PURE, the homeowner’s insurance company. { 11 of Complaint. PURE commissioned Axiom to inspect the Residence and to determine “the cause and origin of the various water damage” and Axiom released its findings. § 12 of Complaint. Plaintiffs allegations in this lawsuit are based on the Axiom Report that was prepared for the purpose of addressing PURE, Quevedo and Mendizabal’s claim for damages caused by the Incident It is impossible to adjudicate the claims in the present lawsuit without including PURE, Quevedo, and Mendizabal as parties. Essentially, this is the second lawsuit brought for damages caused by the Incident. Plaintiffs make a misplaced attempt to distinguish the damages Plaintiff is seeking in this lawsuit from the damages sought in the Subrogation Action by alleging it is bringing this lawsuit not for the resulting property damages caused by the water intrusion, but instead, for damages to cover the cost of repair. § 39 of Complaint. Undoubtedly, the attempt to distinguish the damages caused by the Incident is clever but certainly not enough to prevent an outcome in this action that will most likely be inconsistent with the outcome in the Subrogation Action. 17-3201Accordingly, the Complaint must be dismissed for failure to join indispensable parties. WHEREFORE, Defendant, N. Oscar Gonzalez, PE, respectfully requests that this Court issue an Order dismissing the Complaint, granting him his attorneys’ fees and costs, together with any such further relief this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY certify that a true and correct copy of the foregoing was sent via Email and any other permitted method as specifically described on the service list to all parties on the attached service List on this 20th day of October, 2017. Respectfully Submitted, JLP LEGAL Park Place of Kendall I 13380 SW 128 Street, Miami, FL 33186 Tel: 305-273-3901 By: /s/ Elizabeth Y. Davies, Esq. Elizabeth Y. Davies, Esq. Fla Bar No.: 515231 Primary: service@jlplegal.com Secondary: eyd@jlplegal.com SERVICE LIST Eric Sodhi, Esq. Robert J. Alwine, Esq. Atty for Plaintiff Robert Joseph Alwine, P.A. Sodhi Spoont PLLC 1441 Brickell A venue, Suite 1400 1000 Sth St, Ste 218 Miami, Florida 33131 Miami Beach, FL 33139-6510 robeli@robelialwine.com Attorneys for Sent via Email: eric@sodhispoont.com SD Construction, LLC Robeli J. Squire, Esq. Vinod R. Bajnath, Esq. Resnick & Louis, P.C 1001 Brickell Bay Drive, Suite 2716 Miami, FL, 33131 rsquire@rlattomeys.com: vbajnath@rlattorneys.com pearvajal @rlattorneys.com: ssanchez@rlattomeys.com Attorneys for SD Construction, LLC 17-3201