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10/17/2012 8:43 AM James B. Jett
IN THE CIRCUIT COURT OF THE
FOURTH JUDICIAL CIRCUIT IN
AND FOR CLAY COUNTY,
FLORIDA
CASE NO.: 12-CA-1833
H& LK, LLC, a Florida corporation,
Plaintiff,
Vs.
INDIVIDUALIZED EDUCATIONAL SERVICES, INC.,
a Florida corporation, NATHAN and NANCY ALBERTS,
individually,
Defendants.
/
MOTION TO DISMISS
COME NOW the Defendants and move this Honorable Court that the
action be dismissed in whole and, in support thereof, state:
1) The “Verified Complaint” alleges at paragraph 5 that the Plaintiff and
INDIVIDUALIZED EDUCATIONAL SERVICES, INC., (IES) entered
into a lease agreement attached at Ex. A.
2) At paragraph 15 of the complaint, Plaintiff alleges that an addendum to the
lease agreement, acknowledges intent of use by the individual defendants.
3) A review of the complaint, however, reveals that the Plaintiff fails to
allege privity of contract between the Plaintiff and individual defendants
that would give rise tro ant of the claims of breach of contract or personal
guarantee. Further, although the complaint alleges a “personal guarantee”
by the individual Defendants, at paragraph 24, no such guarantee is
attached.10/17/2012 8:44 AM James B. Jett
4) Florida Rules of Civil Procedure section 1.130 states:
5) When exhibits are inconsistent with Plaintiffs allegations of material fact as to who the
6)
1)
(a) Instruments Attached.
All bonds, notes, bills of exchange, contracts accounts, or
documents upon which action may be brought or
defense made, or a copy thereof or a copy of the portions
thereof material to the pleadings, shall be
incorporated in or attached to the pleading. No papers
shall be unnecessarily annexed as exhibits. The
pleadings shall contain no unnecessary recitals of
deeds, documents, contracts, or other instruments.
(b) Part for All Purposes.
Any exhibit attached to a pleading shall be considered a
part thereof for all purposes. Statements in a pleading may
be adopted by reference in a different part of the same
pleading, in another pleading, or in any motion.
real party in privity is, such allegations cancel each other out. Fladell v. Palm Beach
County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D
voperties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development
Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983).
Here the complaint has a copy of a lease agreement between the corporate parties; no
where is there a personal guarantee as alleged in the body of the complaint.
Plaintiff has thus failed to allege privity, and provide consistent attachments to the
pleadings, to sue the individual Defendants and the case should be dismissed.10/17/2012 8:44 AM James B. Jett
WHEREFORE the Defendants prays that this Honorable Court enter an Order dismissing
the action in whole and with prejudice as to the individual Defendants, awarding reasonable
attorneys fees to individual defendants, along with costs.
Law Offices
Earl M. Johnson, Jr.
% LE.
Earl M. Johnson, Jr., Esquire
Florida Bar Number 006040
Post Office Box 40091
Jacksonville, Florida 32203
(904) 356-5252 (Telephone)
jaxlawfl@aol.com (Email)
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that the foregoing was furnished by US Mail to Aaron J.
Irving, Esq., 3733 University Blvd., West, Ste 212, Jacksonville, FL, 32217, this_16th__ day of
Lobia]
ATTORNEY e
October, 2012.
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10/17/2012 8:43 AM James B. Jett IN THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT IN AND FOR CLAY COUNTY, FLORIDA CASE NO.: 12-CA-1833 H& LK, LLC, a Florida corporation, Plaintiff, Vs. INDIVIDUALIZED EDUCATIONAL SERVICES, INC., a Florida corporation, NATHAN and NANCY ALBERTS, individually, Defendants. / MOTION TO DISMISS COME NOW the Defendants and move this Honorable Court that the action be dismissed in whole and, in support thereof, state: 1) The “Verified Complaint” alleges at paragraph 5 that the Plaintiff and INDIVIDUALIZED EDUCATIONAL SERVICES, INC., (IES) entered into a lease agreement attached at Ex. A. 2) At paragraph 15 of the complaint, Plaintiff alleges that an addendum to the lease agreement, acknowledges intent of use by the individual defendants. 3) A review of the complaint, however, reveals that the Plaintiff fails to allege privity of contract between the Plaintiff and individual defendants that would give rise tro ant of the claims of breach of contract or personal guarantee. Further, although the complaint alleges a “personal guarantee” by the individual Defendants, at paragraph 24, no such guarantee is attached.10/17/2012 8:44 AM James B. Jett 4) Florida Rules of Civil Procedure section 1.130 states: 5) When exhibits are inconsistent with Plaintiffs allegations of material fact as to who the 6) 1) (a) Instruments Attached. All bonds, notes, bills of exchange, contracts accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments. (b) Part for All Purposes. Any exhibit attached to a pleading shall be considered a part thereof for all purposes. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion. real party in privity is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D voperties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983). Here the complaint has a copy of a lease agreement between the corporate parties; no where is there a personal guarantee as alleged in the body of the complaint. Plaintiff has thus failed to allege privity, and provide consistent attachments to the pleadings, to sue the individual Defendants and the case should be dismissed.10/17/2012 8:44 AM James B. Jett WHEREFORE the Defendants prays that this Honorable Court enter an Order dismissing the action in whole and with prejudice as to the individual Defendants, awarding reasonable attorneys fees to individual defendants, along with costs. Law Offices Earl M. Johnson, Jr. % LE. Earl M. Johnson, Jr., Esquire Florida Bar Number 006040 Post Office Box 40091 Jacksonville, Florida 32203 (904) 356-5252 (Telephone) jaxlawfl@aol.com (Email) CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that the foregoing was furnished by US Mail to Aaron J. Irving, Esq., 3733 University Blvd., West, Ste 212, Jacksonville, FL, 32217, this_16th__ day of Lobia] ATTORNEY e October, 2012.