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JOHN CARROLL;
CHAMBERS STREET BUILDERS, INC.;
ELLIOTT W. ALLEN, JR.; and,
GULF COAST ENGINEERING COMMERCIAL
AND RESIDENTIAL DESIGN, INC.
Defendants.
____________________________
JOHN CARROLL,
Counter-Plaintiff,
vs.
COMES NOW, Defendant and Counter Plaintiff John Carroll (“Carroll”) and
moves to dismiss the Second Amended Complaint filed herein by Plaintiff, Freddy Kaye
(“Freddy”). In support of his motion, Carroll does show unto this Honorable Court as
follows:
1. Freddy filed his original Complaint in this matter on September 29, 2008,
2 years ago this month. The original Complaint asserted causes of action for Breach of
Contract (Count One); Breach of Implied Warranties (Count Two); Violation of Building
Code (Count Three); Fraudulent Lien (Count Four); Negligence (Count Five); Deceptive
and Unfair Trade Practices (Count Six); Negligence (Count Seven); and Deceptive and
of Carroll, Chambers Street Builders, Gulf Coast Engineering and Elliott Allen’s
3. As a result of the December hearing, the Kayes filed their first Amended
4. On January 15, 2009 Carroll filed his Answer to the Amended Complaint
and also filed a Counter Claim against Freddy and Susan Kaye.
5. Twenty months later Susan Kaye has decided, and admits, she does not
have grounds to pursue this matter and seeks to remove herself from the litigation.
Despite Susan’s recognition, Freddy comes to this Honorable Court seeking to take
6. Here and now, September 2010, two years after Freddy’s commencement
of this action, and after nearly no record activity, Freddy has filed his Second Amended
Complaint. This complaint asserts brand new allegations and claims allegedly
constituting Breach of Contract (Count I); Breach of Implied Warranties (Count II);
Violation of Building Code (Count III); Fraudulent Lien (Count IV); Negligence (Count
V); Deceptive and Unfair Trade Practices (Count VI); Fraud (Count VII); Negligence
(Count VIII). Freddy comes to this Honorable Court with the intent to delay and cause
undue burden upon everyone but himself in this action, and as such, his Second Amended
Freddy now says that he alone entered a contract with both Chambers Street and Carroll.
(Paragraph 6, 2nd Amended Complaint) Freddy’s attorney Samuel B. Taylor, Esq. then
purportedly attached a true copy of the contract as evidence that Freddy was the only
party to the contract with Chambers Street Builders, Inc. (Exhibit A, 2nd Amended
Complaint). Both Freddy and his lawyer are fully aware that Susan Kaye also endorsed
the contract (Carroll’s Exhibit A). The contract is clearly an agreement between Freddy
and Susan Kaye and Chambers Street Builders, Inc. Further, Carroll is not a party to
either Freddy’s latest version of the contract or the true contract endorsed by both Freddy
8. Freddy has never attempted to allege just how he has a contract with
Carroll, and every contract he presents to this Court is a contract between himself and
Chambers Street Builders, Inc. In order to form a binding contract there must be a
precedent to the formation of a contract. Absent mutual assent, neither the contract nor
any of its provisions come into existence. Gibson v Courtois, 539 S.2d 459, 460 (Fla.
1989). Prior to Freddy and Susan’s acceptance and endorsement of the contract
(Carroll’s Exhibit A), both Freddy and Susan were keenly aware of Chambers Street
Builders, Inc. status as a Florida Corporation and they entered the contract with
Chambers Street Builders, Inc as the party to the contract accordingly. Therefore, there
was no meeting of the minds on the most fundamental of their claims, that Carroll should
the minds on such an essential element there can be no enforceable contract. For this
fundamental reason, and others, Freddy’s most recent Complaint should be Dismissed
with Prejudice.
without limitation, warranties of habitability, of compliance with the building codes, and
10. The essential elements of a claim for Breach of Implied Warranty are;
(3) Plaintiff was using the product in the intended manner at the time of
the injury;
(4) The product was defective when transferred from the warrantor;
11. If Freddy attempted to use his building for its intended purpose, while still
attempt to live in the home during construction, which is illegal in Walton County,
neither Carroll or Chambers Street Builders, Inc. would permit this, as evidenced by
Chambers Street’s contract with Freddy and Susan, “Contractor warrants all work for a
A). However, Freddy does not allege he was using his home for its intended purpose,
and thus his claim fails to satisfy that essential element. Further, at Count II, Freddy
again failed to plead an injury sustained while using the premises for its intended
purpose. The law says the injury must have been caused by the defect.
12. This is the third time that Freddy filed this claim against Carroll, who is
not a party to the contract. Each and every time, Freddy failed to plead the basic
against Carroll. This claim is due to be dismissed with prejudice as a matter of law.
Justice demands that Freddy be banned from further vexatious claims against Carroll.
13. This newest version of Freddy’s complaint does not enumerate a single
violation of the Building Code. Carroll reminds the Court that this complaint revolves
around a construction project still under construction, and that all periodic building code
personal liability on Carroll. Freddy does so without putting forth any effort or legal
building code.
15. On July 17, 2008, Chambers Street Builders, Inc., contractor of record,
filed its lien in accordance with the contract and Florida Statute. Carroll did nothing
improper. That notwithstanding, on July 28, 2008 Freddy obtained his next financing
provision from Farmers and Merchants Bank (Carroll’s Exhibit B) which was back dated
by Freddy, Susan and Farmers for December 14, 2007 and witnessed on April 4, 2008.
16. 2 years and 2 months after Chambers Street filed its lien, Freddy filed this
Freddy seeks court costs, unexplained financing costs (if any) and reasonable attorney’s
fees used to obtain said declaration from this Court. While not a party to the lien, Carroll
will help Freddy and his attorney by informing them that the lien became unenforceable,
17. Count IV is a waste of this busy Court’s schedule and should be struck in
its entirety. The claim is moot. Any legal expenses that Sam Taylor, Esq. charges
Count V – Negligence
18. Freddy’s complaint does not describe a Cause of Action for Negligence.
The law is clear and so is Freddy’s Complaint. The essential elements have not been
plead.
19. Additionally, Carroll has no personal liability per the four corners of the
Count VI – DUTP
20. If anything, this is a case of contract and the question of which party may
have breached that contract. The FDUTPA is not intended to convert every breach into a
21. Freddy has not meet the basic burden of describing “acts” by Carroll that
satisfy Florida Statute or Florida’s Case Law. Freddy had full and complete access to the
job site and spent many hours there. Freddy engaged numerous inspectors and took
complete control over when to disburse funds. Chambers Street Builders, Inc. submitted
periodic payment invoices per the terms of the contract. Only Freddy and Susan
23. Freddy comes belatedly with a new claim of Fraud against Carroll.
24. Freddy failed to meet the pleading requirements for a claim of fraud. The
boilerplate list of common issues relating to construction contract disputes is not the same
25. Carroll is not a party to Freddy, Susan and Chambers Street Builders, Inc.
In light of the foregoing, John Carroll requests that this Honorable Court dismiss
Freddy’s Second Amended Complaint, with prejudice, and any other relief this Court
______________________________
John P. Carroll
Box 613524
WaterSound, FL 32461
850-231-5616 Phone
850-622-5618 Fax
AAbsolute@aol.com
The undersigned certifies that on September 15, 2010, a copy hereof was
furnished by electronic and regular mail to Samuel B. Taylor, Esq. Box 1474, Destin, FL
32540 and Brian D. Hess, Esq., Box 9454, Panama City Beach, Fl 32417 and Michael D.
West 1983 Centre Pointe Blvd., Suite 200, Tallahassee, FL 32317.
By:_______________________
John Carroll
Box 613524
WaterSound, FL 32461
(850) 231-5616 Phone
(850) 622-5618 Fax
AAbsolute@aol.com
Carroll’s Exhibit A
Carroll’s Exhibit B