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Filing # 87799441 E-Filed 04/10/2019 07:24:15 PM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT, IN AND FOR CLAY
COUNTY, FLORIDA
CASE NO.: 2018-CA-001152
DIVISION: F
LLOYD ALLEN ZELL,
Plaintiff,
vs.
KINNECORPS, LLC, a Florida limited liability
company,
Defendant.
/
AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY ONLY
COMES NOW Plaintiff, LLOYD ALLEN ZELL (“Plaintiff”), by and through
undersigned counsel and pursuant to rule 1.510, Florida Rules of Civil Procedure, and hereby
files this amended motion for partial summary judgment as to liability only (“Motion”) as to
Defendant, KINNECORPS, LLC, a Florida limited liability company (“Defendant”), and as
grounds therefore, states as follows:
UNDISPUTED FACTS RELATED TO BREACH OF CONTRACT ACTION,
1 Plaintiff owns the property located at 1513 Stonebriar Road, Green Cove
Springs, FL 32043 (“Property”).
2 In February of 2018, Plaintiff and Defendant entered into a contract to perform
renovation services at the Property (“Contract”).
3 The Contract is a valid contract between Plaintiff and Defendant.
4. More than six months after entering into the Contract, Plaintiff hand delivered
a notice of termination (“Notice of Termination”) of the Contract on August 8, 2018 because
Defendant 1) failed to perform any renovation services under the Contract, except some
demolition of the existing damage to the Property, 2) failed to obtain any permits for any
renovation services to be performed under the Contract, and 3) failed to purchase any materials
listed in the scope of work under the Contract.
5 As a result of the foregoing undisputed facts restated in the Notice of
Termination, Plaintiff filed a cause of action for breach of the Contract.
6. Defendant failed to file any responsive pleadings and a clerk’s default was
entered on November 29, 2018 (“Clerk’s Default”).
7 As result of the Clerk’s Default, Defendant admits that it materially breached
the Contract by failure to perform any renovation services under at the Property.
8. As result of the Clerk’s Default, Defendant admits that Plaintiff incurred
damages.
9. As result of the Clerk’s Default, Defendant admits Plaintiff's damages are
ongoing because they retained other professionals to perform the renovation services at the
Property.
10. As result of the Clerk’s Default, Defendant admits it is responsible for the
attorneys’ fees and costs incurred by Plaintiff in pursuing an action pursuant to the Contract.
UNDISPUTED FACTS RELATED TO CIVIL THEFT ACTION
11. The first payment under the Contract was issued by Plaintiff's insurance
provider, American Strategic Insurance (“ASI”), for Six Thousand Three Hundred Eighty-Six
Dollars and Thirty-Two Cents ($6,386.32) to Plaintiff, Plaintiff's mortgage company, and
Defendant on February 28, 2018 (“1* Insurance Check”).
12. The second payment under the Contract was issued by ASI for Fifteen Thousand
Seven Hundred Thirty-Two Dollars and Thirty-Three Cents ($15,732.33) to Plaintiff,
Plaintiffs mortgage company, and Defendant on April 24, 2018 (“24 Insurance Check”).
13. The third payment under the Contract was issued by ASI for One Thousand
Seven Hundred Sixty-Two Dollars and Fifteen Cents ($1,762.15) to Plaintiff, Plaintiffs
mortgage company, and Defendant on May 2, 2018 (“3" Insurance Check”).
14. The 1* Insurance Check, 2"! Insurance Check, and 3" Insurance Check
(collectively “Insurance Funds”) were not all endorsed by Plaintiff as payable to Defendant
because 2! Insurance Check and 3" Insurance Check appear to show an attempt at his
signature.
15. Nonetheless, then Insurance Funds, which total Twenty-Three Thousand Eight
Hundred Eighty Dollars and Eighty Cents ($23,880.80) were deposited by Defendant, who
holds these funds at the time of filing this action.
16. The Notice of Termination highlights fraudulent endorsements of the Insurance
Funds.
17. The undersigned counsel followed up the Notice of Termination with a demand
letter (“Demand Letter”) making demands for the following:
a. Reimbursement of attorneys’ fees pursuant to the Contract for the
Demand Letter;
b. Refund of the Insurance Funds for failure to perform work under the
Contract, including no purchase of materials nor issuance of a permit to perform any
renovation services under the Contract at the Property, which, with the forgery of
Plaintiff's signature on the 2‘ Insurance Check, and 3" Insurance Check demonstrates
felonious intent in obtaining the Insurance Funds. Section 772.11, Florida Statutes,
Russ v. State, 830 So. 2d 268 (Fla. 1* DCA 2002); and
c Defendant’s insurance information, pursuant to section 627.4137,
Florida Statutes, within 30 days of receipt of the Demand Letter.
18. As a result of the foregoing undisputed facts restated in the Notice of
Termination, Plaintiff filed a second cause of action for Civil Theft pursuant to Section 772.11,
Florida Statutes.
19. The Clerk’s Default was entered as to Defendant on November 29, 2018.
20. As result of the Clerk’s Default, Defendant admits it knowingly accepted the
Insurance Funds, which total Twenty-Three Thousand Eight Hundred Eighty Dollars and
Eighty Cents ($23,880.80).
21. As result of the Clerk’s Default, Defendant admits it failed to return the
Insurance Funds as demanded by Plaintiff.
22. As result of the Clerk’s Default, Defendant admits it unlawfully forged Plaintiffs
signature on transferred the 2™ Insurance Check and 3" Insurance Check.
23. As result of the Clerk’s Default, Defendant admits it accepted the Insurance
Funds with intent to, either temporarily or permanently, deprive Plaintiff of his right to use
and benefit of those funds.
24. As result of the Clerk’s Default, Defendant admits its actions were felonious in
nature and constitute criminal intent.
WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order
granting Summary Final Judgment and:
A Find the Contract is a valid contract;
B. Find Defendant breached the Contract;
Cc Find Defendant liable for civil theft pursuant to Section 772.11, Florida
Statutes;
D. Reserve determination of the amounts due to Plaintiff from Defendant
under the breach of Contract action for a scheduled trial on those unliquidated
damages, including fees, costs and pre-judgment interest;
E Reserve determination of the amounts due to Plaintiff from Defendant
under the civil theft action for a scheduled trial on those unliquidated damages,
including fees, costs and pre-judgment interest; and
F. Award any further relief this Honorable Court considers just and proper.
DATED this April 10, 2019.
Respectfully submitted,
LAW OFFICE OF PRESTON H. OUGHTON
10365 Hood Road South, Suite 105
Jacksonville, Florida 32257
Designated eService Address: eService@oughtonlaw.com!
Telephone: (904) 854-6336
Facsimile: (904) 854-6331
By: /s/ Preston H. Oughton
Preston H. Oughton (Florida Bar No. 0059389)
Attorney for Plaintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing has been furnished via US Mail on
this April 10, 2019, to: Kinnecorps, LLC, Registered Agent — Willis & Oden, PL, C/O Jon M.
Oden, Esq., 2121 South Hiawassee Road, Suite 116, Orlando, Florida 32835.
/s/ Preston H. Oughton
Attorney
' Pursuant to Rule 2.516, Florida Rules of Judicial Administration
5
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Filing # 87799441 E-Filed 04/10/2019 07:24:15 PM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR CLAY COUNTY, FLORIDA CASE NO.: 2018-CA-001152 DIVISION: F LLOYD ALLEN ZELL, Plaintiff, vs. KINNECORPS, LLC, a Florida limited liability company, Defendant. / AMENDED MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO LIABILITY ONLY COMES NOW Plaintiff, LLOYD ALLEN ZELL (“Plaintiff”), by and through undersigned counsel and pursuant to rule 1.510, Florida Rules of Civil Procedure, and hereby files this amended motion for partial summary judgment as to liability only (“Motion”) as to Defendant, KINNECORPS, LLC, a Florida limited liability company (“Defendant”), and as grounds therefore, states as follows: UNDISPUTED FACTS RELATED TO BREACH OF CONTRACT ACTION, 1 Plaintiff owns the property located at 1513 Stonebriar Road, Green Cove Springs, FL 32043 (“Property”). 2 In February of 2018, Plaintiff and Defendant entered into a contract to perform renovation services at the Property (“Contract”). 3 The Contract is a valid contract between Plaintiff and Defendant. 4. More than six months after entering into the Contract, Plaintiff hand delivered a notice of termination (“Notice of Termination”) of the Contract on August 8, 2018 because Defendant 1) failed to perform any renovation services under the Contract, except some demolition of the existing damage to the Property, 2) failed to obtain any permits for any renovation services to be performed under the Contract, and 3) failed to purchase any materials listed in the scope of work under the Contract. 5 As a result of the foregoing undisputed facts restated in the Notice of Termination, Plaintiff filed a cause of action for breach of the Contract. 6. Defendant failed to file any responsive pleadings and a clerk’s default was entered on November 29, 2018 (“Clerk’s Default”). 7 As result of the Clerk’s Default, Defendant admits that it materially breached the Contract by failure to perform any renovation services under at the Property. 8. As result of the Clerk’s Default, Defendant admits that Plaintiff incurred damages. 9. As result of the Clerk’s Default, Defendant admits Plaintiff's damages are ongoing because they retained other professionals to perform the renovation services at the Property. 10. As result of the Clerk’s Default, Defendant admits it is responsible for the attorneys’ fees and costs incurred by Plaintiff in pursuing an action pursuant to the Contract. UNDISPUTED FACTS RELATED TO CIVIL THEFT ACTION 11. The first payment under the Contract was issued by Plaintiff's insurance provider, American Strategic Insurance (“ASI”), for Six Thousand Three Hundred Eighty-Six Dollars and Thirty-Two Cents ($6,386.32) to Plaintiff, Plaintiff's mortgage company, and Defendant on February 28, 2018 (“1* Insurance Check”). 12. The second payment under the Contract was issued by ASI for Fifteen Thousand Seven Hundred Thirty-Two Dollars and Thirty-Three Cents ($15,732.33) to Plaintiff, Plaintiffs mortgage company, and Defendant on April 24, 2018 (“24 Insurance Check”). 13. The third payment under the Contract was issued by ASI for One Thousand Seven Hundred Sixty-Two Dollars and Fifteen Cents ($1,762.15) to Plaintiff, Plaintiffs mortgage company, and Defendant on May 2, 2018 (“3" Insurance Check”). 14. The 1* Insurance Check, 2"! Insurance Check, and 3" Insurance Check (collectively “Insurance Funds”) were not all endorsed by Plaintiff as payable to Defendant because 2! Insurance Check and 3" Insurance Check appear to show an attempt at his signature. 15. Nonetheless, then Insurance Funds, which total Twenty-Three Thousand Eight Hundred Eighty Dollars and Eighty Cents ($23,880.80) were deposited by Defendant, who holds these funds at the time of filing this action. 16. The Notice of Termination highlights fraudulent endorsements of the Insurance Funds. 17. The undersigned counsel followed up the Notice of Termination with a demand letter (“Demand Letter”) making demands for the following: a. Reimbursement of attorneys’ fees pursuant to the Contract for the Demand Letter; b. Refund of the Insurance Funds for failure to perform work under the Contract, including no purchase of materials nor issuance of a permit to perform any renovation services under the Contract at the Property, which, with the forgery of Plaintiff's signature on the 2‘ Insurance Check, and 3" Insurance Check demonstrates felonious intent in obtaining the Insurance Funds. Section 772.11, Florida Statutes, Russ v. State, 830 So. 2d 268 (Fla. 1* DCA 2002); and c Defendant’s insurance information, pursuant to section 627.4137, Florida Statutes, within 30 days of receipt of the Demand Letter. 18. As a result of the foregoing undisputed facts restated in the Notice of Termination, Plaintiff filed a second cause of action for Civil Theft pursuant to Section 772.11, Florida Statutes. 19. The Clerk’s Default was entered as to Defendant on November 29, 2018. 20. As result of the Clerk’s Default, Defendant admits it knowingly accepted the Insurance Funds, which total Twenty-Three Thousand Eight Hundred Eighty Dollars and Eighty Cents ($23,880.80). 21. As result of the Clerk’s Default, Defendant admits it failed to return the Insurance Funds as demanded by Plaintiff. 22. As result of the Clerk’s Default, Defendant admits it unlawfully forged Plaintiffs signature on transferred the 2™ Insurance Check and 3" Insurance Check. 23. As result of the Clerk’s Default, Defendant admits it accepted the Insurance Funds with intent to, either temporarily or permanently, deprive Plaintiff of his right to use and benefit of those funds. 24. As result of the Clerk’s Default, Defendant admits its actions were felonious in nature and constitute criminal intent. WHEREFORE, Plaintiff respectfully requests this Honorable Court enter an Order granting Summary Final Judgment and: A Find the Contract is a valid contract; B. Find Defendant breached the Contract; Cc Find Defendant liable for civil theft pursuant to Section 772.11, Florida Statutes; D. Reserve determination of the amounts due to Plaintiff from Defendant under the breach of Contract action for a scheduled trial on those unliquidated damages, including fees, costs and pre-judgment interest; E Reserve determination of the amounts due to Plaintiff from Defendant under the civil theft action for a scheduled trial on those unliquidated damages, including fees, costs and pre-judgment interest; and F. Award any further relief this Honorable Court considers just and proper. DATED this April 10, 2019. Respectfully submitted, LAW OFFICE OF PRESTON H. OUGHTON 10365 Hood Road South, Suite 105 Jacksonville, Florida 32257 Designated eService Address: eService@oughtonlaw.com! Telephone: (904) 854-6336 Facsimile: (904) 854-6331 By: /s/ Preston H. Oughton Preston H. Oughton (Florida Bar No. 0059389) Attorney for Plaintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished via US Mail on this April 10, 2019, to: Kinnecorps, LLC, Registered Agent — Willis & Oden, PL, C/O Jon M. Oden, Esq., 2121 South Hiawassee Road, Suite 116, Orlando, Florida 32835. /s/ Preston H. Oughton Attorney ' Pursuant to Rule 2.516, Florida Rules of Judicial Administration 5