IN THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT

IN AND FOR WALTON COUNTY, FLORIDA

CIVIL DIVISION

FREDDY KAYE AND SUSAN KAYE

Plaintiffs,

vs. Case No.: 2008-CA-001570

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.

FREDDY KAYE and SUSAN KAYE,

Counter-Defendants,
____________________________/

DEFEDAT and COUTER-PLAITIFF CARROLL’S MOTIO TO DISMISS

PLAITIFF FREDDY KAYE’S SECOD AMEDED COMPLAIT

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

Unfair Trade Practices (Count Six?).

2. On December 11, 2008 a hearing was held by this Court in consideration

of Carroll, Chambers Street Builders, Gulf Coast Engineering and Elliott Allen’s

respective Motions to Dismiss or Abate the Complaint.

3. As a result of the December hearing, the Kayes filed their first Amended

Complaint on December 26, 2008 which sought nearly identical relief.

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

another shot at pleading his case.

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

Complaint should be dismissed with prejudice on those grounds alone. Furthermore,

each of the enumerated Counts should be dismissed with prejudice against Carroll as a

matter of law. Specific argument to each Count follows.

Count I - Breach of Contract

7. In opposition to Freddy’s first two attempts to bring this complaint,

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

and Susan (Carroll’s Exhibit A).

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

common or mutual intention of the parties. Mutual assent is an absolute condition

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

be somehow belatedly considered a party to the contract at issue. Without a meeting of

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.

Count II – Breach of Implied Warranties

9. Freddy alleges that “Carroll made a variety of warranties, including

without limitation, warranties of habitability, of compliance with the building codes, and

compliance with the plans and specifications”.

10. The essential elements of a claim for Breach of Implied Warranty are;

(1) Plaintiff purchased a product;

(2) Plaintiff was a foreseeable user of the product;

(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;

(5) The defect caused the plaintiff’s injury.

11. If Freddy attempted to use his building for its intended purpose, while still

under construction, he would be acting outrageously and recklessly. Even if he did

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

period of 12 months following Certificate of Occupancy.” (Article 5(12)Carroll’s Exhibit

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

elements necessary to maintain a cause of action for Breach of Implied Warranties

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.

Count III – Violation of the Building Code

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

inspections were passed by the building department. Certainly none of Freddy’s

contractors have assembled a product that passes the building code.

14. Freddy’s new Complaint attempts a broad jump in an attempt to place

personal liability on Carroll. Freddy does so without putting forth any effort or legal

reasoning. Carroll has absolutely no personal obligation to Freddy concerning the

building code.

Count IV – Fraudulent Lien

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

Amended Complaint seeking to declare Chambers Street’s lien unenforceable. Further,

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,

by operation of law, 14 months before Freddy filed this Amended Complaint.

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

Freddy for this Count should not be Carroll’s concern.

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

Second Amended Complaint.

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

claim under FDUTPA.

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

committed “acts” which were unfair or deceptive.

22. Freddy’s Count VI is due to be dismissed against Carroll.

Count VII – Fraud

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

alleged false statements must be described with a heightened degree of specificity. A

boilerplate list of common issues relating to construction contract disputes is not the same

as a specific false statement.

25. Carroll is not a party to Freddy, Susan and Chambers Street Builders, Inc.

contract and this claim should be dismissed.

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

deems just and proper.

______________________________
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