Filing # 77475749 E-Filed 09/05/2018 04:14:51 PM

IN THE CIRCUIT COURT OF THE 11th

JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO.: 2018-27467 CA 01

SET MIDTOWN LLC,

a Florida limited liability company,

Plaintiff,
v.

BECKER BOARDS MIAMI, L.L.C.,

an Arizona limited liability company,

Defendant.
______________________________________/

DEFENDANT’S MOTION TO DISMISS

Defendant Becker Boards Miami, LLC (“Defendant”), by counsel, moves for the entry of

an Order dismissing with prejudice the Complaint for Damages (“Complaint”) filed by Plaintiff

Set Midtown LLC (“Plaintiff”) on August 14, 2018. In support of this Motion, Defendant states

as follows:

INTRODUCTION

This case arises from an Outdoor Advertising Lease Agreement (“Lease”) between

Plaintiff, as lessor, and Defendant, as lessee, whereby Plaintiff agreed to allow Defendant to use

the side of Plaintiff’s building (located at 78 N.W. 37th Street, Miami, Florida 33127 (the

“Property”)) for advertising purposes. Defendant owns a “mural permit,” which gives it the ability

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to advertise on buildings, as set forth in the Lease. Defendant’s mural permit is Miami-Dade Mural

Permit No. 15-0002 (the “Permit”).

Plaintiff’s sole cause of action for breach of contract alleges that Defendant breached the

Lease by failing to timely remove the Permit from the Property when Defendant exercised its right

to terminate the Lease early. Plaintiff’s breach of contract claim, however, is meritless and must

be dismissed with prejudice, because there is not a single provision in the Lease that requires or

obligates Defendant to remove the Permit at all, let alone within a specific timeframe after the

termination of the Lease.

Indeed, this entire lawsuit is a complete ruse and abuse of the judicial system as the Plaintiff

is attempting to use this lawsuit as leverage for competitive reasons, because it cannot obtain its

own mural permit for its Property without the Defendant's consent to relocate another one of its

permits (permit number 18-0041) located adjacent to Plaintiff's Property. In fact, nine (9) months

ago the Defendant obtained approval from the City of Miami to transfer the relevant mural Permit

from Plaintiff's demolished building to the City of Miami's police department and the Permit was

actually transferred on January 8, 2018. The Plaintiff has now attacked and appealed the transfer

of Defendant's unrelated permit (number 18-0041) to the neighboring building adjacent to the

Plaintiff's Property. Additionally, it was one day after the transfer of that permit was approved by

the City of Miami that Plaintiff instituted this frivolous lawsuit. Lastly, Plaintiff has now reported

baseless and self-serving "concerns" to the City of Miami regarding the relevant Permit (number

15-0002).

For these reasons, and as set forth more fully below, the Complaint should be dismissed

with prejudice and Defendant awarded its reasonable attorneys’ fees and costs incurred herein.

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 ARGUMENT

I. MOTION TO DISMISS STANDARD

Under Florida law, a motion to dismiss pursuant to Rule 1.140(b)(6), Florida Rules of Civil

Procedure, tests the sufficiency of the complaint to state a cause of action. A motion to dismiss

should be granted if it appears the set of facts alleged by the plaintiffs in support of their claims,

even if true, do not support a claim which would entitle the plaintiffs to relief. See Samuels v. King

Motor Co., 782 So. 2d 489, 495 (Fla. 4th DCA 2001); see also Fla. R. Civ. P. 1.140(b)(6).

In determining the merits of a motion to dismiss for failure to state a cause of action, the

court is limited to the four-corners of the complaint and the allegations therein must be accepted

as true and viewed in the light most favorable to the moving party. Susan Fixel, Inc. v. Rosenthal

& Rosenthal, Inc., 842 So. 2d 204, 206 (Fla. 3d DCA 2003). But when taking the allegations as

true, the court must consider both whether the moving party would be entitled to relief, and whether

the complaint alleges all essential elements necessary to bring each stated cause of action. See

Ralph v. City of Dayton Beach, 471 So. 2d 1, 2 (Fla. 1983); see also Landrum v. John Doe Pitt

Digger, 696 So. 2d 926, 928 (Fla. 2d DCA 1997).

Moreover, in deciding a motion to dismiss, the Court is not required to accept a plaintiff’s

internally inconsistent factual claims, conclusory allegations, unwarranted deductions, or mere

legal conclusions. See R. Townsend Contracting, Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297,

300 (Fla. 1st DCA 1999) (emphasis added). A complaint must plead sufficient ultimate facts to

support each element of the cause of action, and the mere pleading of conclusory allegations is

insufficient to meet this requirement. Nodal-Tarafa v. ARDC, 579 So. 2d 414 (Fla. 3d DCA 1991).

Of greater import in this case is that a contract that is attached as an exhibit to a complaint

is deemed part of the complaint and must be reviewed as such. See, e.g., Hillcrest Pac. Corp. v.

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Yamamura, 727 So. 2d 1053, 1055 (Fla. 4th DCA 1999) (citing Fla. R. Civ. P. 1.130(b)). Naturally,

“[w]hen there are conflicts between the allegations and documents attached as exhibits, the

plain language of the documents control.” Geico Gen. Ins. Co., Inc. v. Graci, 849 So. 2d 1196,

1199 (Fla. 4th DCA 2003) (emphasis added).

II. PLAINTIFF’S BREACH OF CONTRACT CLAIM FAILS BECAUSE

PLAINTIFF FAILS TO ALLEGE A SINGLE PROVISION OF THE LEASE
THAT HAS BEEN BREACHED

It is axiomatic under Florida law that an exhibit attached to a pleading is part of the pleading

for all purposes and, if the attached document negates the pleader’s cause of action, the plain

language of the document controls and may form the basis of a motion to dismiss. See Franz

Tractor Co. v. J.I. Case Co., 566 So. 2d 524 (Fla. 2d DCA 1990); Harry Pepper & Associates, Inc.

v. O. Al Lasseter, 247 So. 2d 736 (Fla. 3d DCA 1971).

Glaringly absent from the Complaint is any provision that Defendant allegedly breached

by failing to timely remove the Permit. Indeed, the Lease – which is the contract governing the

parties rights and obligations to one another and with respect to the Property – does not require

Defendant to remove the Permit at all, let alone within a specific timeframe after termination of

the Lease. Because this is the sole basis for Plaintiff’s breach of contract claim, and because the

alleged conduct (Defendant’s purported failure to timely remove the Permit) does not constitute a

breach of the Lease, the claim fails as a matter of law.

Additionally, the Court is powerless to rewrite the terms of an unambiguous contract, like

the Lease at issue here. The Court cannot add to a lease provisions that do not exist. For this

reason alone, the Complaint must be dismissed with prejudice.

With respect to Plaintiff's claim that it has suffered damages because Defendant entered

into a lease with a neighboring landowner to advertise, and place a mural permit on that property,

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which now precludes Plaintiff from obtaining its own mural permit for its Property pursuant to

Section 62-606 of the Miami-Dade Code of Ordinances (the City of Miami will not “issue a mural

permit for any building if said building is within 300 feet of another legally permitted mural…”

See Compl., ¶ 24-25), so what! The Lease, which is the only governing agreement between the

parties, does not say anything about Defendant's right or lack thereof to enter into another lease

with an adjacent, or any other, landlord or to obtain a mural permit for any other location, adjacent

to Plaintiff's Property or otherwise. Furthermore, there is no geographic restriction in the Lease,

and Plaintiff's attempt to construe the Lease as an anti-competition agreement is patently frivolous.

Simply put, the Lease is totally devoid of any provision restricting Defendant from leasing

any other premises, adjacent to Plaintiff's Property or otherwise, or from obtaining a mural permit

for any other building. As Plaintiff has no claim and no damages, the Complaint must be dismissed

with prejudice.

III. DEFENDANT IS ENTITLED TO RECOVER ITS

REASONABLE ATTORNEYS’ FEES AND COSTS

The Lease provides that “if any action brought by any party to this Lease pertaining to this

Lease, whether in court, arbitration, mediation or otherwise, the prevailing party will be entitled

to reasonable attorneys’ fees and costs.” See Lease, at 1. Accordingly, Defendant is entitled to an

award of its attorneys’ fees in having to defend this baseless action.

WHEREFORE, Defendant respectfully requests the entry of an Order (i) dismissing

Plaintiff’s Complaint with prejudice, (ii) awarding Defendant its reasonable attorneys’ fees and

costs, and (iii) granting Defendant such further and additional relief as this Court deems just and

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proper.

Respectfully submitted,

AKERMAN LLP
Three Brickell City Centre
98 S.E. 7th Street, Suite 1100
Miami, Florida 33131
Telephone (305) 374-5600

By:__/s/ Dana A. Clayton________________

Dana A. Clayton, Esq.
Florida Bar No. 907758
Primary E-mail: dana.clayton@akerman.com
Secondary E-mail: dorothy.matheis@akerman.com
Jeffrey Pertnoy, Esq.
Florida Bar No: 91939
Primary: Jeffrey.pertnoy @akerman.com
Secondary: marylin.herrera@akerman.com

Counsel for Defendant

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 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by e-

mail this 5th day of August, 2018 to:

Derek A. Schwartz, Esq.

Law Offices of Derek A. Schwartz, P.A.
4755 Technology Way, Suite 205
Boca Raton, FL 33431
Telephone: (561) 981-8089
Facsimile: (561) 997-6036
Primary Email: derek@derekaschwartzpa.com
Secondary Email: derekaschwartz@gmail.com

By: /s/ Dana A. Clayton________________

Dana A. Clayton, Esq.
Florida Bar No. 907758

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