Motion for Protective Order in ANTHONY DAVIS J VS SECURITY| Trellis.Law

On April 17, 2020 a Motion,Ex Parte was filed involving a dispute between Davis Anthony Jr, and Security First Florida, Security First Insurance Company, for CONTRACT & INDEBTEDNESS in the District Court of Brevard County.

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Filing # 108525582 E-Filed 06/08/2020 01:51:28 PM

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA

ANTHONY DAVIS, JR.,
Case No. 2020-CA-024628

Plaintiff,

vs.

SECURITY FIRST INSURANCE COMPANY,

Defendant.
/

DEFENDANT’S MOTION FOR PROTECTIVE ORDER TO STAY
DISCOVERY UNTIL COURT RULING ON ITS MOTION TO DISMISS

Defendant, Security First Insurance Company, by and through undersigned counsel and

pursuant to Florida Rule of Civil Procedure 1.280(c), hereby files this Motion for Protective

Order to stay discovery pending this Honorable Court’s ruling on its Motion to Dismiss

Plaintiff's Complaint, and in support thereof states as follows:

FACTUAL BACKGROUND

1 This case originated as a result of purported damages arising out of an

undescribed loss occurring on an unspecified date at Plaintiff's property, located at 4835 Key

Biscayne Drive, Titusville, Florida, 32780 [hereinafter “insured property”.] See Plaintiff's

Complaint, attached hereto as Exhibit “A”.

2 On or about April 23, 2020, Plaintiffs served their Complaint on Security First.

See Plaintiff's Complaint, attached hereto as Exhibit "A." The Complaint alleges that on an

unspecified date, the insured property sustained an undescribed loss due to “water” at an

unspecified location in the home. /d. at Par. 4. It also alleges that Security First was

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
notified of the purported loss, but does not contain any allegations of purported breach

or otherwise. /d. Par. 4-WHEREFORE Clause.

3 On May 27, 2020, Defendant filed its Motion to Dismiss Plaintiff's Complaint.

In this Motion, Defendant argued that the Complaint must be dismissed by this

Honorable Court because it fails to state a legal cause of action, fails to include

ultimate fact about the date, cause and location of loss, is limited by the Policy and

failed in the wrong County, and fails to include the elements of a breach of contract,

amongst other reasons. See Defendant’s Motion, attached hereto as Exhibit "B.'”

4 Defendant is currently in the process of scheduling its Motion for hearing with

opposing counsel. As such, consistent with Florida Jurisprudence, Defendant respectfully

requests for this Honorable Court to enter an Order protecting it from participating in discovery,

including written discovery and depositions, prior to a resolution of the Motion to Dismiss.

55 The Florida Supreme Court has held that when a Motion to Dismiss is pending, a

plaintiff its only entitled to conduct limited discovery that would provide the trial court with

additional information on which to base its decision regarding jurisdictional issues but that does

not address the merits of the case. Gleneagle Ship Mgmt. Co. v. Anthony Leondakos, 602 So.

2d 1282, 1284 (Fla. 1992).

6 Additionally, Florida Rule of Civil Procedure 1.280(c) provides for protective

orders in the context of discovery “for good cause shown ... to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or expense.” Dees v. Kidney Group

LLC, 16 So. 3d 277, 279 (Fla. 2d DCA 2009).
7
In light of the jurisdictional arguments raised in Defendant’s Motion to Dismiss,

Defendant respectfully requests that the Court enter an Order protecting it from participating

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
discovery until resolution and/or ruling on its Motion to Dismiss so that the parties can avoid

potential waste of resources and time in conducting discovery which may ultimately be moot.

8 The request for an Order staying discovery is brought in good faith and not for the

purposes of delay or otherwise, and Plaintiff will not be prejudiced by this Motion, because, if

this Court rule in their favor on the Motion to Dismiss, Defendant would then participate

in discovery. In addition, this case has just begun and has not yet been set for trial. As such,

this Honorable Court is asked to enter a protective order as requested above.

MEMORANDUM
OF LAW IN SUPPORT
The Florida Supreme Court has held that when a motion to dismiss is pending, a

plaintiff is only entitled to conduct limited discovery that will provide the trial court with

additional information on which to base its decision regarding jurisdiction. Gleneagle Ship

Mgmt. Co. v. Anthony Leondakos, 602 So. 2d 1282, 1284 (Fla. 1992). In Gleneagle, the

Court emphasized that the permitted discovery envisioned by its holding should not be broad,

onerous or expansive, nor should it address the merits of the case. Jd. Moreover, Florida's

Fifth District Court of Appeal subsequently applied the limited discovery holding in

Gleneagle to a case involving a motion to dismiss involving defective service of process

and allowed discovery regarding a jurisdictional question. Suroor Bin Mohammed Al

Nahyan v. First Investment Corp., 701 So. 2d561 (Fla. 5th DCA 1997). However, the Court

held that such discovery should be limited in scope and not be overbroad or oppressive. /d.

Defendant should not be required to respond to Plaintiff's discovery requests or

participate in any depositions during the pendency of its Motion to Dismiss as the discovery

goes to the merits of the case and thus should only be responded to if the Motion to

Dismiss is denied. In Gleneagle, the Court held that a party was only permitted to conduct

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
jurisdictional discovery during the pendency of a motion to dismiss. Conversely, the

discovery in this case is not focused solely on jurisdictional issues and does go to the merits

of the case. Therefore, Defendant’s Motion should be granted and it should not have to

participate in discovery at this time.

WHEREFORE, Defendant, SECURITY FIRST INSURANCE COMPANY,

respectfully requests that this Honorable Court enter an Order staying all discovery until this

Court's ruling on its Motion, along with any further relief this Court deems just and proper.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been furnished via E-Service to: Corey B. Justus, Esq., The Nation Law Firm, LLP 570 Crown
Oak Centre Drive, Longwood, Florida (lobrien@nationlaw.com; cjustu@nationlaw.com) on June
8, 2020.
Quintairos, Prieto, Wood and Boyer, P.A.

/s/ Jessica Cauley
Jennifer L. Velazco, Esq. FBN: 27199
Tniv Gabay, Esq. FBN: 37487
1410 North Westshore Boulevard, Suite 200
Tampa, Florida 33607
T: 813-286-8818 / F: 813-286-9998
Attorneys for Defendant

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
EXHIBIT A

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
Filing # 106408909 E-Filed 04/17/2020 04:39:46 PM

IN THE CIRCUIT COURT OF THE
EIGHTEENTH JUDICIAL CIRCUIT IN
AND FOR BREVARD COUNTY, FL

CASE NO.

ANTHONY DAVIS JR.,

Plaintiff,

SECURITY FIRST INSURANCE COMPANY
DBA SECURITY FIRST FLORIDA,

Defendant.
/

COMPLAINT

Plaintiff, ANTHONY DAVIS JR., sues the Defendant, SECURITY FIRST INSURANCE

COMPANY DBA SECURITY FIRST FLORIDA, and alleges as follows:

1. This is an action for damages in excess of Thirty Thousand Dollars

($30,000.00), exclusive of prejudgment interest, attorney's fees, and costs.

2. Atall material times, Defendant was a corporation, duly authorized and licensed

to transact insurance business in the State of Florida. Defendant regularly conducted

business, had offices, and/or maintained agents for the transaction of its customary

business in Brevard County, Florida.

3. Plaintiff resides in Brevard County, Florida, and is otherwise sui juris.

4. Plaintiff's dwelling, located at 4835 Key Biscayne Drive, Titusville, FL 32780

(hereafter “the Property”), sustained covered losses due to water.

5. Plaintiff notified Defendant of the damages.

6. Defendant assigned claim number 183125 to the loss.

7. Defendant assigned a date of loss of September 9, 2019.

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
8. Defendant insured Plaintiff's dwelling, pursuant to policy number P004111407

(hereafter “the Policy”).

9. The Policy, including the coverages to protect Plaintiff against the above loss,

was in full force and effect as to Plaintiff when Plaintiffs property was damaged. Plaintiffis

unsure whether Plaintiff has a complete copy of the Policy; however, a complete copy of

the Policy has been requested from Defendant and will be produced during discovery.

10. Plaintiff complied with all conditions precedent to entitle Plaintiff to recover under

the Policy, or Defendant waived compliance with such conditions.

11. On January 30, 2020, Plaintiff submitted to Defendant an estimate from a

contractor ready to perform repairs to Plaintiff's home related to the covered losses.

Defendant failed or refused to pay the appropriate amount for the repairs.

12. Defendant has failed to provide coverage for certain of Plaintiff's losses.

13. As a result, Defendant has failed to pay for all of Plaintiff's losses.

14. Defendant's failure to pay for all of Plaintiffs losses is a material breach of

contract.

15. As aresult of Defendant's material breach of contract, it has become necessary

for Plaintiff to retain the services of the undersigned attorney.

WHEREFORE, Plaintiff demands judgment against Defendant for all losses with

interest on any overdue payments, plus attorney's fees and costs, pursuant to sections

627.428, 57.041, and 92.231, Florida Statutes, and demands a trial by jury.

Dated this 17 day of April, 2020.

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
NATION LAW FIRM, LLP
ri

Core lustus, Esquire
Florida Bar No. 113864
570 Crown Oak Centre Drive
Longwood, FL 32750
Telephone: (407) 339-1104
Facsimile: (407) 339-1118
Primary Email: lobrien@nationlaw.com
Secondary Email: cjustus@nationlaw.com
Attorneys for Plaintiff

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
EXHIBIT B

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
Filing # 108029508 E-Filed 05/27/2020 11:20:22 PM

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA

ANTHONY DAVIS, JR.,
Case No. 2020-CA-024628

Plaintiff,

vs.

SECURITY FIRST INSURANCE COMPANY,

Defendant.
/

DEFENDANT, SECURITY FIRST INSURANCE COMPANY’S MOTION TO DISMISS
PLAINTIFF’S COMPLAINT

Defendant, SECURITY FIRST INSURANCE COMPANY (hereinafter “Security First”),

by and through undersigned counsel and pursuant to Florida Rule of Civil Procedure 1.140,

hereby files this Motion to Dismiss Plaintiff's, ANTHONY DAVIS JR.’s, Complaint, and in

support thereof states as follows:

FACTUAL BACKGROUND

1 This case originated as a result of purported damages arising out of an

undescribed loss occurring on an unspecified date at Plaintiff's property, located at 4835 Key

Biscayne Drive. Titusville, Florida, 32780 [hereinafter “insured property”.] See Plaintiff's

Complaint.

2 This action is predicated upon a policy of insurance which Security First

issued to Plaintiff bearing Policy Number P004111407 affording certain coverage to the

insured property during the applicable policy period, subject to the Policy's terms,

conditions, limitations, exclusions and endorsements (hereinafter the “Policy”). See Policy,

which will be filed in support of this Motion as Exhibit “A”.

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3 On or about April 23, 2020, Plaintiff served his Complaint on Security First

alleging purported Breach of Contract. See Plaintiff's Complaint. The Complaint alleges

that on an unspecified date, the insured property sustained an undescribed loss due to

“water” at an unspecified location in the home. J/d. at Par. 4. It also alleges that

Security First breached the Policy due to its purported failure to pay for an estimate

supplied by Plaintiff, which was not attached to the Complaint. /d. Par. 1]-14.

4 Plaintiff's Complaint must be dismissed by this Honorable Court for the

following reasons:

5 First, the Complaint must be dismissed and/or transferred to County Court

because the Policy upon which this action has been predicated at most limits the damage to

$10,000.00 per loss, which is obviously below this Honorable Court’s $30,000.00 jurisdiction.

For this reason, there is no amount in dispute and even if there was an amount, this Honorable

Court lacks jurisdiction in this matter since it falls below $30,000.00 excluding attorney’s

fees, costs and/or interest.

6. Second, the Complaint must be dismissed since it fails to state a legal cause

of action upon which relief may be granted as Plaintiff failed to provide ultimate facts

tegarding the cause, date and location of loss at the insured property upon which this

lawsuit is predicated. Florida Jurisprudence requires a pleading to set forth “a short and

plain statement of the ultimate facts showing that the pleader is entitled to relief.” See

Fla. R. Civ. P. 1.110(b) (2020). The Complaint falls short of this standard due to its

failure to provide ultimate facts as to the date, cause and location of the loss upon which it

appears to be predicated, which could be anything from a roof leak, to an air conditioning

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leak, to a water heater leak, to a plumbing leak, to some other cause or event and which could

have literally occurred in one or several areas of the insured property.

7
Potential coverage for a loss requires a determination of the potential application

of many different applicable Policy terms, conditions, exclusions, limitations, and

endorsements. The lack of description within the Complaint of the date, cause and location of

loss, creates vagueness and ambiguity regarding the subject loss which prevents Security

First from recognizing what is being alleged against it and formulating its defenses.

Merely stating that a purported water loss occurred, without specifying the date, cause and

location of loss is not sufficient under Florida law.

8 Third, the Complaint must be dismissed as it fails to state a legal cause of

action upon which relief may be granted. Specifically, the contract upon which Plaintiff's

action has been predicated was not attached to the Complaint nor described in any specificity

within its four corners. Florida law has long been clear that the instrument upon which a

complaint is based must be attached to the Complaint to avoid a dismissal. Plaintiff alleges

that she is entitled to financial recovery based upon a prepared contract, but have conveniently

failed to attach a complete copy of said estimate, in violation of Florida law.

9 As such, for these reasons and the reasons stated below, this Honorable Court

must dismiss Plaintiff's Complaint.

MEMORANDUM
OF LAW AND ARGUMENT
L Motion to Dismiss Standard.

Fla. R. Civ. P. 1.140 states in relevant 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,

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
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.

On a motion to dismiss, the trial court is limited to reviewing the four corners of the

omplaint, and the material allegations of the complaint must be taken as true. Belcher

Center, LLC v. Belcher Center, Inc., 883 So. 2d 338, 339 (Fla. 2d DCA 2004) (citing Al-

Hakim v. Holder, 787 So. 2d 939, 941 (Fla. 2d DCA 2001) (holding that there was no

authority to look beyond the complaint to decide on a motion to dismiss). Additionally,

the allegations must be considered in the light most favorable to the non-moving party.

Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003).

The trial court’s function is to determine whether the allegations contained in the four

corners of the complaint state a cause of action. LeGrande v. Emmanuel, 889 So. 2d 991,

996 (Fla. 3d DCA 2004).

Florida requires litigants’ pleadings, at the outset of a suit, to state their pleadings

with sufficient particularity fora defense to be prepared, which avoids a great deal of

wasted expense to the litigants and unnecessary judicial effort. Horowitz v. Laske, 855

So. 2d 169, 172-173 (Fla. 5th DCA 2003). “Whether the allegations of a Complaint are

sufficient to state a cause of action is a question of law.” Della Ratta v. Della Ratta, 927

So. 2d 1055, 1058 (Fla. 4th DCA 2006). In order to properly state a cause of action, a

complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief.

Atkins vy. Topp Telecom, Inc., et al., 873 So. 2d 397, 399 (Fla. 4th DCA 2004).

Furthermore, the complaint must set out the elements and the facts that support the

claims so that the court and the defendant can clearly determine what is being alleged.

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See Messana v. Maule Industries, Inc., 50 So. 2d 874, 876 (Fla. 1951) (holding that a

complainant must “plead a factual matter sufficient to apprise his adversary of what he is

called upon to answer so that the court may, upon proper challenge, determine its legal

effect.”’)

I. Plaintiff's Complaint Must Be Dismissed and/or Transferred to County Court due
to Lack of Subject Matter Jurisdiction.

Plaintiff's Complaint is predicated upon a purported water loss occurring at the insured

property on an unspecified date and in an unspecified location. Additionally, this Honorable

Court’s subject matter jurisdiction is limited to damages exceeding $30,000.00 exclusive of all

costs, attorney’s fees and interest. Since the Policy at most limits potential coverage for

Plaintiffs loss to $10,000.00, Plaintiff has failed to state a legal cause of action entitling him to

relief. Additionally, this Honorable Court lacks jurisdiction in this matter and thus must either

dismiss this lawsuit or transfer it to County Court since the amount in dispute falls below

$30,000.00 excluding attorney’s fees, costs and interest.

As this Honorable Court is aware, Circuit Courts have jurisdiction over actions where

the amount in dispute exceeds the sum of $30,000.00 exclusive of attorney’s fees, costs and

interest, while County Courts possess exclusive jurisdiction over amounts in dispute that do not

exceed the sum of $30,000.00, exclusive of attorney’s fees, costs and interest. Fla. Const. Art.

V Sec. 5.; Fla. Stat. 26.012; Fla. Stat. 34.01. Importantly, a court is without jurisdiction to

consider a claim if it does not meet the jurisdictional amount threshold. See Burns v. Hacker,

729 So. 2d 398 (Fla. Sth DCA 1998) (Trial court was without jurisdiction to consider claim

because it did not meet the jurisdictional amount threshold of $15,000, and thus, plaintiff had to

file his claim in county court). Additionally, attorney’s fees sought by plaintiff are not included

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in jurisdictional amount for purposes of determining whether circuit court has subject-matter

jurisdiction of a claim, and a challenge to subject matter jurisdiction can be raised at any time.

See Kent v. Connecticut Bank and Trust Co., N. A., 386 So.2d 902, 903 (Fla. 2d DCA 1980);

Fla. R. Civ. P. 1.140 (H)(2).
Also, under Florida law, courts must construe an insurance contract it its entirety, striving

to give every provision meaning and effect. Associated Elec. & Gas Ins. Servs., Ltd. v. Houston

Oil and Gas Co., 552 So.2d 1110 (Fla. 3d DCA 1989). “Insurance contracts, like other contracts,

‘should receive a construction that is reasonable, practical, sensible, and just.’ ” State Farm Mut.

Auto. Ins. Co. v. Fischer, 16 So.3d 1028, 1031 (Fla. 2d DCA 2009) (quoting Gen. Star. Indem.

Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004). Policy terms must be given

their plain, unambiguous and common meaning. Silva v. Southwest Blood Bank, Inc., 601 So.2d

1184 (Fla.1992). Thus, where language in a policy is plain and unambiguous, there is no special

construction or interpretation required, and the plain language in the contract is to be given the

meaning which it clearly expresses. Jefferson Ins. Co. of New York v. Sea World of Florida, Inc.,

586 So.2d 95 (Fla. Sth DCA 1991). Thus, where contractual language is clear and unambiguous,

the contract must be enforced as written. Great Global Assur. Co. v. Shoemaker, 599 So.2d 1036

(Fla. 4th DCA 1992).

Whether claimed damage comes within the scope of a policy exclusion is a question of

law. See Dimmitt Chevrolet, Inc. v. Southeastern Fidelity Ins. Corp., 636 So.2d 700, 701

(Fla.1993) (the issue of whether an exclusionary clause precludes coverage for damages is a

question of law); Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla.1985) (“[T]he

construction of an insurance policy is a question of law....”).

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The Complaint alleges that it is predicated upon a loss due to water which is specifically

limited under the Policy to up to $10,000, as stated in the following provision:

LIMITED WATER DAMAGE COVERAGE — DISCHARGE OR OVERFLOW

For an additional premium, the policy is endorsed to provide the following:

Sudden and accidental direct physical loss to covered property by discharge or
overflow of water or steam from within a plumbing, heating, air conditioning or
automatic fire protective sprinkler system or from within a household appliance.

LIMIT OF LIABILITY:

The limit of liability for all damage to covered property provided by this endorsement is
$10,000 per loss.

This coverage does not increase the limit of liability that applies to the damaged covered
property.

All other provisions of your policy apply.

Where the endorsement at issue is clear and unambiguous, it must be given its express

meaning and the contract must be enforced in accordance with the express language. See Certain

Interested Underwriters at Lloyd's London y. Pitu, Inc., 95 So.3d 290 (Fla. 3d DCA 2012) In

Pitu the policy contained a water damage exclusion which stated it limited coverage due to water

damage to $25,000.00. /d. at 294. In that case Pitu argued that the endorsement added coverage

and that in addition to the coverage afforded under the policy it was entitled to an additional

$25,000.00 because of the endorsement. /d. at 293. The court found that nothing in the policy

supported that proposition and held that the endorsement at issue is clear and unambiguous in its

limitation of coverage. /d.

Consistent with the aforementioned Jurisprudence and Policy provisions, the Complaint

fails to state a legal cause of action since the purported loss in question is limited to $10,000.00

under the Policy. As such, as a matter of state law, this lawsuit must be dismissed or in the

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least, this Court lacks subject matter jurisdiction over this case since the amount in dispute per

loss falls below $30,000.00 excluding attorney’s fees, costs and/or interest.

Ii. Plaintiff's Complaint Must Be Dismissed for Failing to State a Legal Cause of
Action.

a. The Complaint Must Be Dismissed Due to its Failure to Allege Ultimate
Facts Regarding the Date, Cause and Location of Loss Upon Which This
Lawsuit is Predicated.

Plaintiff's Complaint is predicated upon an undescribed loss. It is inherently unfair to

require Security First to formulate its defenses and defend itself when it has not been placed on

notice as to the date of loss, cause of loss, area where the purported loss occurred, and whether

a single or multiple losses occurred. Not only can damage result from many different causes

and events, which would implicate different Policy provisions, but it is also possible that the

loss could also occur in one of more of several areas of the insured property. Additionally,

there are no allegations in the Complaint that a breach even occurred. Since Plaintiff failed to

allege ultimate facts regarding the date, cause and location of the purported loss in question,

the Complaint must be dismissed by this Honorable Court.

Under the Florida Rules of Civil Procedure, a complaint may be dismissed for failing

to state a legal cause of action. See Fla. R. Civ. P. 1.140(b) (2020). This is because under

Florida law, a pleading must set forth “a short and plain statement of the ultimate facts showing

that the pleader is entitled to relief.” See Fla. R. Civ. P. 1.110(b) (2020). Plaintiff's

Complaint fails to sufficiently state a legal cause of action for which relief can be granted. It

is a cardinal rule of pleading that a complaint be stated simply, in short and plain language

which set out the elements and the facts that support them so that it can clearly

determine what is being alleged. Barrett v. City of Margate, 743 So. 2d 1160 (Fla. 4th

DCA 1999); see also Fla. R. Civ. P. 1.110(b). Additionally, in a first party property breach of

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contract case, plaintiff is required to plead and prove at least two different elements: “(1) that

the property harmed or damaged falls within the ‘insuring clause’ of the policy, and (2) the loss

claimed falls within a second, ‘covered perils’ provision contained in the Policy . . . only then

might compensation be due, and then only if there is no applicable exclusion from coverage

that might apply.” Homeowners Choice Prop. & Cas. v. Maspons, 211 So. 3d 1067, 1068 (Fla.

3d DCA 2017).

The Complaint fails to provide any description or detail as to the date, cause or

location of loss against which Security First is asked to defend. This Court must dismiss the

Complaint for this reason. Quite simply, the lack of detail of the allegations contained

within the Complaint has created vagueness and ambiguity regarding the subject loss for

which Plaintiff is seeking recovery for in the instant action, which in turn prevents Security

First from formulating its defenses and denials as applicable. Specifically, it is unclear from

the Complaint what the date, cause and location of the purported loss was, which could be

anything from a roof leak, to an air conditioning leak, to a water heater leak, to some other

cause or event and could have occurred at any area of the home. The result is that Security

First simply does not know, and cannot ascertain, the allegations made against it.

Therefore, it is difficult for Security First to properly argue and defend itself in this

litigation, including raising appropriate allegations, denials and defenses.

b. The Complaint Must Be Dismissed for Violating Security First’s Due Process
Rights.

Plaintiff's intentional and calculated decision to ensure that the Complaint is repugnant

and as vague as possible in failing to include the date, cause and location of the purported loss

upon which this lawsuit has been predicated violates Security First’s due process rights.

Specifically, and as stated above, Security First is left guessing against which loss or losses it is

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asked to defend and thus cannot formulate its denials and defenses accordingly. As this

Honorable Court is aware, the failure to allege applicable affirmative defenses may result in a

potential waiver. As such, Security First’s due process rights have been violated, warranting

dismissal.

In accordance with the Florida Constitution, procedural due process requires a party

to be given fair notice and be afforded with a real opportunity to be heard and defend before

judgment is entered against that party. Crepage v. City of Lauderhill, 774 So. 2d 61, 64-65

(Fla. 4th DCA 2000); Burch v. City of Lakeland, 891 So. 2d 654, 656 (Fla. 2d DCA 2005);

Shlishey the Best, Inc. v. CitiFinancial Equity Services, 14 So. 3d 1271, 1273-1274 (Fla.

2d DCA 2009). The specific parameters of the notice and the opportunity to be heard

required by procedural due process are not evaluated by fixed rules of law, but rather by

the requirements of the particular proceeding. Borden v. Borden-Moore, 818 So. 2d 604,

607 (Fla. 5th DCA 2002), citing to several cases; See Crosby v. Fla. Parole Comm'n, 975

So. 2d 1222, 1223 (Fla. Ist DCA 2008). For example, the opportunity to be heard at an

evidentiary hearing requires time to secure the attendance of witnesses and to prepare for

the presentation of evidence and argument. Crepage, 774 So. 2d at 64-65. Additionally, to

qualify under due process standards, the opportunity to be heard must be meaningful,

full, and fair, and not merely colorable or illusive. Rucker v. City of Ocala, 684 So. 2d 836,

841 (Fla. Ist DCA 1996).

The Complaint violates Security First’s due process rights in defending itself and

acquiring facts in support of its denials and affirmative defenses. As discussed herein, the

Complaint is devoid of ultimate facts regarding the date, cause and location of the purported

loss in question. Instead, Plaintiff chose to be as vague and ambiguous as possible, which

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could allow him to pick and choose the number, date, cause and location of loss as the lawsuit

progresses. This would make the amount, date, cause and location of loss a moving target,

cause judicial and resource inefficiency, and would unduly prejudice Security First’s ability to

formulate its defenses. This shifting claim strategy also prevents Security First from having a

teal opportunity to be heard by the Honorable Court and rightfully defend itself. Since Security

First cannot rightfully and properly defend severely prejudicing Security First’s due process

rights.

IV. Plaintiff’s Complaint Must be Dismissed due to Plaintiffs Failure to attach a Copy
of the Contract Upon which this Action has been Predicated.

Plaintiff's Complaint is predicated upon Security First’s purported failure to pay for an

estimate for purported damages and for which he claims recovery. However, Plaintiff failed to

attach a copy of the estimate or other document upon which this action has been predicated to

the Complaint or describe it with any specificity. As such, the Complaint fails to state a legal

cause of action and must be dismissed.

Florida law is clear that “one of the ways to reach a failure to attach a necessary exhibit

is by motion to dismiss.” Safeco Ins. Co. of America v. Ware, 401 So. 2d 1129, 1130 (Fla. 4th

DCA 1981), citing to Trawick, Florida Practice & Procedure s 6-15 (1980). Additionally, a

complaint which is predicated upon a written document fails to state a legal cause of action

unless and until that document or an adequate portion of such document is attached or

incorporated into the Complaint. /d., citing to Meadows v. Edwards, 82 So. 2d 733 (Fla. 1955);

Walters v. Ocean Gate Phase I Condo., 925 So. 2d 440, 443 (Fla. 5th DCA 2006) (same); see

Samuels v. King Motor Co. of Ft. Lauderdale, 782 So. 2d 489, 495 (Fla. 4th DCA 2001) (to

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX
state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader

is entitled to relief.)

Here, Plaintiff's Complaint fails to attach a copy of the estimate, contract or other

document upon which she bases his action, and has also failed to describe that estimate with

sufficient particularity. For these reasons, it must be dismissed by this Honorable Court.

WHEREFORE, for the aforementioned reasons, this Honorable Court must

dismiss and/or transfer Plaintiff's Complaint, and grant any other relief deemed

necessary and/or appropriate.

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the above and foregoing has
been furnished via E-Service to: Corey B. Justus, Esq., The Nation Law Firm, LLP 570 Crown
Oak Centre Drive, Longwood, Florida (lobrien@nationlaw.com; cjustu@nationlaw.com) on May
27, 2020.
Quintairos, Prieto, Wood and Boyer, P.A.

/s/ Jennifer L. Velazco
Jennifer L. Velazco, Esq. FBN: 27199
Tniv Gabay, Esq. FBN: 37487
1410 North Westshore Boulevard, Suite 200
Tampa, Florida 33607
T: 813-286-8818 / F: 813-286-9998
Attorneys for Defendant

Filing 108525582 ANTHONY DAVIS J VS SECURITY 05-2020-CA-024628-XXXX-XX

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Document Filed Date

June 08, 2020

Case Filing Date

April 17, 2020

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Parties

CAULEY JESSICA A Attorney for the Defendant
DAVIS ANTHONY JR Plaintiff
DIOCARES JONTHAN M Attorney for the Defendant
JUSTUS COREY B Attorney for the Plaintiff
KIMMEL GINA Attorney for the Plaintiff
NATION MARK A Attorney for the Plaintiff
SECURITY FIRST FLORIDA Defendant
SECURITY FIRST INSURANCE COMPANY Defendant
VELAZCO JENNIFER L Attorney for the Defendant
WARDSINGLETON ASHLEY Attorney for the Defendant
Gerald Albrecht Attorney
Iniv Gabay Attorneys for Defendants
Ashley Ward-Singleton Attorneys for Defendants
Keith Truppman Attorneys for Plaintiffs
Kimberly Jones Attorneys for Defendants
Sean Williams Attorney
Sean Bogle Attorney

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Motion,Ex Parte: ANTHONY DAVIS J VS SECURITY

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