PLAINTIFFS RESPONSE TO DEFENDANTS MOTION TO DISMISS

by | Jul 11, 2023 | others

IN THE COUNTY COURT FOR THE NINTH JUDICIAL CIRCUIT

IN AND FOR ORANGE COUNTY, FLORIDA

ROBERT AYDT                                               §

Plaintiff,                                                  §

§

v.                                                              §     Case No. 2018-CC-7680-O

§

CERTAINTEED CORPORATION                §

Defendant.                                              §

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS

This Response and Brief is filed by Plaintiff in response to Defendant’s Motion to Dismiss. For the reasons outlined below, Defendant’s Motion should be denied.

  1. STANDARD OF REVIEW
  2. 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. North Broward Hosp. Dist., 387 So. 2d 482, 483 (Fla. 4th DCA 1980).
  3. The court is confined to consideration of the allegations found in the four corners of the complaint. Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA 1998).
  4. A motion to dismiss should be denied when a complaint sufficiently states a cause of action. See Solorzano v. First Union Mortgage Corp., 896 So. 2d 847, 849 (Fla. 4th DCA 2005); see also Fontainebleau Hotel Corp. v. Walters, 246 So. 2d 563, 565-66 (Fla. 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).
  • PARTIES
  • Plaintiff is a male adult of sound mind, and a resident of 717 Chickapee Trail, Maitland, FL 32751.
  • Defendant is a corporation with headquarters at 20 Moores Rd., Malvern, PA 19355. that
  • Defendant deals with the manufacture and sale of building materials including roofing, siding, insulation, windows and patio doors, fence, decking, railing, foundations and pipe.
  • STATEMENT OF THE CASE
  • Plaintiff bought shingles from Defendant on Insert Date.
  • Defendant’s sales brochure touted the shingles as resilient and durable.
  • Defendant provided a warranty for the shingles.
  • The shingles that Plaintiff bought from Defendant failed before the time period advertised, marketed and guaranteed by CertainTeed.
  • 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.
  • Plaintiff reached out to Defendant to replace the shingles, but Defendant’s employees ignored Plaintiff, prompting him to file this suit.
  • ARGUMENTS

Defendant does not Dispute the Third Cause of Action

(Breach of Express Warranty)

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