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Filing # 42115758 E-Filed 05/31/2016 11:16:41 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH COUNTY, FLORIDA
CIVIL DIVISION
Z&R PARTNERS, LLC, a Florida Limited
Liability Company,
Plaintiff/Counter-Defendant,
vs. CASE NO.: 15-CA-010865
DIVISION: D
CLAWS AND MORE, INC. A Florida
Corporation and JANICE TRUEWELL,
Defendants/Counter-Plaintiffs/
Third Party Plaintiffs,
vs.
ROLAND HODGES & SONS, INC., and
WILLIAM L. HODGES,
Third Party Defendant.
__________________________________ /
MOTION OF THIRD PARTY DEFENDANT, WILLIAM L. HODGES,
TO STRIKE CERTAIN ALLEGATIONS FROM THIRD PARTY PLAINTIFFS’
AMENDED THIRD PARTY COMPLAINT
Defendant, WILLIAM L. HODGES (“ William Hodges”), by and through his
undersigned counsel, pursuant to the applicable Rules of Florida Civil Procedure,
hereby moves to strike certain allegations from Third Party Plaintiff’s Amended Third
Complaint. In support hereof, William Hodges states as follows:
1. A party may move to strike redundant, immaterial, impertinent or
scandalous allegations from a pleading. Fla. R. Civ. P. 1.140(f).
2. Third Party Plaintiffs have asserted claims against William Hodges for
Negligent Inducement or Misrepresentation (Count IV); Negligently Supplying
Information (Count V) and Violation of Florida Statute Chapter 475 (Count VI). In each
05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1
of the “wherefore” clauses of these three counts, Third Party Plaintiffs are seeking to
recover their attorney’s fees.
3. Attorney fees are recoverable only when authorized by contract or statute.
Snell v. Mott’s Contracting Services, Inc., 141 So. 3d 605, 608 (Fla. 2d DCA 2014)
(citations omitted). Third Party Plaintiffs have not alleged that a contract exists between
them and William Hodges which provides for attorney’s fees. Although Third Party
Plaintiffs attached the Lease to the Third Party Complaint which provides for prevailing
party attorney’s fees, William Hodges is not a party to the Lease. Since he is not a
party to the Lease the attorney’s fee provision is not enforceable against him. See,
Gwen Fearing Real Estate, Inc. v. Wilson, 430 So. 2d 589, 591(Fla. 4th DCA 1983)
(Even though the contract made provision for payment of commission to a real estate
broker, the broker could not recover or be liable for attorney’s fees because he was not
a party to the contract).
4. Further, Counts IV and V of the Third Party Complaint are not based on a
violation of statute and there are no allegations regarding any statutory basis for
awarding fees. Count VI is based on a violation of either Florida Statute § 475.42 or
Florida Statute §475.278. Amended Third Party Complaint at ¶77. However, neither of
these two sections provides for attorney’s fees.
5. Since there is no contract or statute authorizing an award of attorney’s
fees, the allegations set forth in the Third Party Complaint referencing attorney’s fees
should be stricken.
6. In footnote 1 (which is referenced in paragraph 13 of the Third Party
Complaint), Third Party Plaintiffs state:
2
05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2
It should be noted from the outset that Z&R appears to be
either affiliated or at least closely related or involved with
HODGES, because it appears that at least one of the
principals and representatives of Z&R who primarily
engaged in Business Lease negotiations is also a real estate
agent employed by HODGES, i.e., Christopher A.
Richardson.
7. Paragraph 13, which references this footnote, is incorporated into each of
the causes of action against William Hodges. This footnote, however, is impertinent to
the causes of action alleged by Third Party Plaintiffs against William Hodges, and,
therefore, should be stricken. Moreover, as argued by Third Party Defendant, ROLAND
HODGES & SONS, INC. (“Hodges”), a common employee would not make Z&R and
Hodges closely related or affiliated corporations. Third Party Plaintiffs recognize and
admit that Z&R and Hodges are separate and distinct legal entities. Amended Third
Party Complaint at ¶¶5 and 7.
8. In footnote 2, Third Party Plaintiffs contend that William Hodges committed
a felony. Such an allegation is wholly impertinent, scandalous and immaterial. As such,
it should be stricken
WHEREFORE, Third Party Defendant, WILLIAM L. HODGES, respectfully
requests that this Court grant his Motion to Strike and award it any other relief that this
Court believes is just and proper under the circumstances.
BUTLER WEIHMULLER KATZ CRAIG LLP
/s/ James K. Hickman
JAMES K. HICKMAN, ESQ.
Florida Bar No.: 893020
jhickman@butler.legal
Secondary: eservice@butler.legal
3
05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3
400 N. Ashley Drive, Suite 2300
Tampa, Florida 33602
Telephone: (813) 281-1900
Facsimile: (813) 281-0900
Attorneys for Third Party Defendant, William L.
Hodges
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished to:
Scott D. Stamatakis, Esq.
Stamatakis + Thalji + Bonanno
Post Office Box 341499
Tampa, FL 33694
Service@MyInjury.com
Attorneys for Claws and More, Inc. and Janice Truewell
Kristopher E. Fernandez, Esq.
114 South Fremont Avenue
Tampa, FL 33606
service@kfernandezlaw.com
Attorneys for Z&R Partners, LLC
Johnny G. DeGirolamo, Esq.
Law Offices of John DeGirolamo, Esq.
1101 East Cumberland Avenue, Suite 301-B
Tampa, FL 33602-4217
johnd@inlawwetrust.com
Secondary: Service@inlawwetrust.com
Attorneys for Counter-Defendant, Z&R Partners, LLC
by e-Portal on May 31, 2016.
/s/ James K. Hickman
JAMES K. HICKMAN, ESQ.
4
05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4
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Filing # 42115758 E-Filed 05/31/2016 11:16:41 AM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH COUNTY, FLORIDA CIVIL DIVISION Z&R PARTNERS, LLC, a Florida Limited Liability Company, Plaintiff/Counter-Defendant, vs. CASE NO.: 15-CA-010865 DIVISION: D CLAWS AND MORE, INC. A Florida Corporation and JANICE TRUEWELL, Defendants/Counter-Plaintiffs/ Third Party Plaintiffs, vs. ROLAND HODGES & SONS, INC., and WILLIAM L. HODGES, Third Party Defendant. __________________________________ / MOTION OF THIRD PARTY DEFENDANT, WILLIAM L. HODGES, TO STRIKE CERTAIN ALLEGATIONS FROM THIRD PARTY PLAINTIFFS’ AMENDED THIRD PARTY COMPLAINT Defendant, WILLIAM L. HODGES (“ William Hodges”), by and through his undersigned counsel, pursuant to the applicable Rules of Florida Civil Procedure, hereby moves to strike certain allegations from Third Party Plaintiff’s Amended Third Complaint. In support hereof, William Hodges states as follows: 1. A party may move to strike redundant, immaterial, impertinent or scandalous allegations from a pleading. Fla. R. Civ. P. 1.140(f). 2. Third Party Plaintiffs have asserted claims against William Hodges for Negligent Inducement or Misrepresentation (Count IV); Negligently Supplying Information (Count V) and Violation of Florida Statute Chapter 475 (Count VI). In each 05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 of the “wherefore” clauses of these three counts, Third Party Plaintiffs are seeking to recover their attorney’s fees. 3. Attorney fees are recoverable only when authorized by contract or statute. Snell v. Mott’s Contracting Services, Inc., 141 So. 3d 605, 608 (Fla. 2d DCA 2014) (citations omitted). Third Party Plaintiffs have not alleged that a contract exists between them and William Hodges which provides for attorney’s fees. Although Third Party Plaintiffs attached the Lease to the Third Party Complaint which provides for prevailing party attorney’s fees, William Hodges is not a party to the Lease. Since he is not a party to the Lease the attorney’s fee provision is not enforceable against him. See, Gwen Fearing Real Estate, Inc. v. Wilson, 430 So. 2d 589, 591(Fla. 4th DCA 1983) (Even though the contract made provision for payment of commission to a real estate broker, the broker could not recover or be liable for attorney’s fees because he was not a party to the contract). 4. Further, Counts IV and V of the Third Party Complaint are not based on a violation of statute and there are no allegations regarding any statutory basis for awarding fees. Count VI is based on a violation of either Florida Statute § 475.42 or Florida Statute §475.278. Amended Third Party Complaint at ¶77. However, neither of these two sections provides for attorney’s fees. 5. Since there is no contract or statute authorizing an award of attorney’s fees, the allegations set forth in the Third Party Complaint referencing attorney’s fees should be stricken. 6. In footnote 1 (which is referenced in paragraph 13 of the Third Party Complaint), Third Party Plaintiffs state: 2 05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 It should be noted from the outset that Z&R appears to be either affiliated or at least closely related or involved with HODGES, because it appears that at least one of the principals and representatives of Z&R who primarily engaged in Business Lease negotiations is also a real estate agent employed by HODGES, i.e., Christopher A. Richardson. 7. Paragraph 13, which references this footnote, is incorporated into each of the causes of action against William Hodges. This footnote, however, is impertinent to the causes of action alleged by Third Party Plaintiffs against William Hodges, and, therefore, should be stricken. Moreover, as argued by Third Party Defendant, ROLAND HODGES & SONS, INC. (“Hodges”), a common employee would not make Z&R and Hodges closely related or affiliated corporations. Third Party Plaintiffs recognize and admit that Z&R and Hodges are separate and distinct legal entities. Amended Third Party Complaint at ¶¶5 and 7. 8. In footnote 2, Third Party Plaintiffs contend that William Hodges committed a felony. Such an allegation is wholly impertinent, scandalous and immaterial. As such, it should be stricken WHEREFORE, Third Party Defendant, WILLIAM L. HODGES, respectfully requests that this Court grant his Motion to Strike and award it any other relief that this Court believes is just and proper under the circumstances. BUTLER WEIHMULLER KATZ CRAIG LLP /s/ James K. Hickman JAMES K. HICKMAN, ESQ. Florida Bar No.: 893020 jhickman@butler.legal Secondary: eservice@butler.legal 3 05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 400 N. Ashley Drive, Suite 2300 Tampa, Florida 33602 Telephone: (813) 281-1900 Facsimile: (813) 281-0900 Attorneys for Third Party Defendant, William L. Hodges CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished to: Scott D. Stamatakis, Esq. Stamatakis + Thalji + Bonanno Post Office Box 341499 Tampa, FL 33694 Service@MyInjury.com Attorneys for Claws and More, Inc. and Janice Truewell Kristopher E. Fernandez, Esq. 114 South Fremont Avenue Tampa, FL 33606 service@kfernandezlaw.com Attorneys for Z&R Partners, LLC Johnny G. DeGirolamo, Esq. Law Offices of John DeGirolamo, Esq. 1101 East Cumberland Avenue, Suite 301-B Tampa, FL 33602-4217 johnd@inlawwetrust.com Secondary: Service@inlawwetrust.com Attorneys for Counter-Defendant, Z&R Partners, LLC by e-Portal on May 31, 2016. /s/ James K. Hickman JAMES K. HICKMAN, ESQ. 4 05/31/2016 11:16 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4