![]() ![]() ![]() ![]() It was necessary since it is Plaintiff’s abode. Plaintiff had no other option but to repair the damage himself. Plaintiff reached out to Defendant so that it could rectify the damage, but Defendant, through its employees, was unresponsive. In this case, Defendant provided Plaintiff with defective materials. In the case cited by Defendant, Tiara alleged that Marsh was either negligent or breached its fiduciary duty by failing to advise Tiara of its complete insurance needs and by failing to advise Tiara of its belief that Tiara was underinsured.In its Motion, Defendant cites Tiara Condo.Moreover, even if a plaintiff is required to elect a cause of action, “the election of a claim would not logically occur at a pleading stage.” 5th DCA 2005) (“A Plaintiff may set out the facts of the occurrence or transaction and demand judgment in his favor on several bases, even mutually exclusive ones.”). Pursuant to Florida Rule of Civil Procedure 1.110(g), a pleader “may set up in the same action as many claims or causes of action or defenses in the same right as the pleader has, and claims for relief may be stated in the alternative.” Banks v.Plaintiff urges this Honorable Court to assume that all factual allegations contained in the third cause of action (breach of express warranty) as true and draw all reasonable inferences in favor of Plaintiff.Edwards v City of Goldsboro, 178 F.3d 231, 244 (4 th Cir. As with standing, the court will assume all factual allegations are true and draw all reasonable inferences in favor of the plaintiff.In the Motion to Dismiss, Defendant denied all claims apart from the third cause of action of breach of express warranty.Plaintiff reached out to Defendant to replace the shingles, but Defendant’s employees ignored Plaintiff, prompting him to file this suit.The shingles bought by Plaintiff from Defendant caused a lot of damage to Plaintiff’s house, including damage to structural roof components, damage to fascia, drip edge, eves, sidewalks, pool decking and damage to walls and ceiling structural components.The shingles that Plaintiff bought from Defendant failed before the time period advertised, marketed and guaranteed by CertainTeed.Defendant provided a warranty for the shingles.Defendant’s sales brochure touted the shingles as resilient and durable.Plaintiff bought shingles from Defendant on Insert Date.Defendant deals with the manufacture and sale of building materials including roofing, siding, insulation, windows and patio doors, fence, decking, railing, foundations and pipe.Defendant is a corporation with headquarters at 20 Moores Rd., Malvern, PA 19355.Plaintiff is a male adult of sound mind, and a resident of 717 Chickapee Trail, Maitland, FL 32751.1971) (holding error to dismiss a complaint that contains sufficient allegations to acquaint the defendant with the plaintiff’s charge of wrongdoing so that the defendant can intelligently answer the same). 4th DCA 2005) see also Fontainebleau Hotel Corp. A motion to dismiss should be denied when a complaint sufficiently states a cause of action. ![]() The court is confined to consideration of the allegations found in the four corners of the complaint.In reviewing a motion to dismiss, the Court must construe the allegations of the complaint “in the light most favorable to plaintiffs and the trial court must not speculate what the true facts may be or what will be proved ultimately in trial of the cause.” Hitt v.For the reasons outlined below, Defendant’s Motion should be denied. This Response and Brief is filed by Plaintiff in response to Defendant’s Motion to Dismiss. PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS IN THE COUNTY COURT FOR THE NINTH JUDICIAL CIRCUIT ![]()
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