Swan Motion To Dismiss

Filing # 94932479 E-Filed 08/28/2019 04:17:08 PM
IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA
CIVIL DIVISION
NOEL DEVINE, AS PERSONAL

REPRESENTATIVE OF THE ESTATE
OF MINA A. SWAN, DECEASED,
Plaintiff,
V. Case No. 19-005206-CI—21
STEVEN C. SWAN, AS PERSONAL

REPRESENTATIVE OF THE ESTATE
OF DAVID S. SWAN, JR., DECEASED,
Defendant.
/
MOTION TO DISMISS
Defendant, Steven C. Swan, as Personal Representative of the Estate of David S. Swan, Jr.,
Deceased (“Steven C. Swan”), hereby moves the Court for entry of an order dismissing the
Complaint for its failure to state a cause of action and for pleading deficiencies and in support
thereof would show as follows:
1. The Statement of Claim attached to the Complaint as Exhibit “A” is an improper
attachment contrary to the proscription set forth in Florida Rule of Civil Procedure Rule 1.130(a).
The objection attached to the Complaint as Exhibit “B” also violates Rule 1.130(a). However, the
attachment of the Statement of Claim is more than just a technical Violation and promotes
significant confusion With respect to the pleading and What it is seeking, as explained below.
2. Count I purports to state a cause of action for breach of contract, but fails to do so.
Plaintiff attaches a “Note” to the Complaint as Exhibit “C.” It is not clear if this is supposed to be
a promissory note, as it is lacking negotiable instrument language, nor is Count Ipled as any sort
of action on a promissory note.
***ELECTRONICALLY FILED 08/28/2019 04:17:07 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
3. Plaintiff does not identify When the alleged payments required by the Note were
missed or not made; this may have significant implications for the statute of limitations for What
purports to be a Note dated December 23, 2006, requiring yearly payments.
4. Furthermore, there is a repugnancy between Exhibit “C” and Count I insofar as the
Note seems to describe a requirement to fund a particular account to cover a contingency of
potential losses that would otherwise be covered by homeowners insurance. However, there is no
event plead that would have triggered a loss covered by homeowners insurance and, thus, no
damages. It is not even clear from the pleading or the exhibit as to whether the proceeds to be
deposited would be in the account of Mina Swan or David S. Swan and if the funds were to be
deposited into the latter’s account as a sinking fund for potential losses that would otherwise would
be covered by insurance, Plaintiff has no right or entitlement to the proceeds based on the claim as
pled. Notably, Mr. Swan does not promise to pay anything t_o Mina Swan. The bottom line is that
Exhibit “C” is by no means a traditional promissory note and is merely just a personal and cryptic
statement from Mr. Swan that would need to be explained by for more ultimate facts for the Plaintiff
to state a cause of action for breach of contract.
5. Count II purports to state a cause ofaction for conversion, but fails to do so. Plaintiff
fails to identify the “Schwab Accounts” at issue. There are five (5) Schwab Accounts referenced
Within the Statement of Claim attached as Exhibit “A,” but it is unclear which of those accounts, if
any, are the subj ect ofthe conversion claim. Paragraph 16 realleges Paragraphs 1 through 10 within
Count II, therefore the Statement of Claim becomes part of Count II and potentially creates a
repugnancy or, at a minimum, unnecessary confusion With respect to which account is addressed
within Count II.

6. Plaintiff needs to identify the Schwab Accounts in question and Which of them were
“jointly owned,” as referenced in Paragraph 19.
7. Ultimate facts are lacking With respect to how much “Mina contributed to the
Schwab Accounts” as referenced in Paragraph 20. Ultimate facts must be alleged to establish how
much money was in the Schwab Accounts before Mina’s alleged contributions and the amount of
any appreciation (after losses) to the extent that these were investment accounts. Paragraph 21 is
also sorely lacking in ultimate facts. It fails to identify how much was transferred by “Decedent”
and from Which accounts and on Which occasions.
8. There are no dates whatsoever included Within Count II so it is impossible to
determine in What months or years the Schwab Account transfer occurred. No Schwab Account
statements are attached to the Complaint that would shed any light this.
9. Most significantly, Florida law does not permit a conversion claim for money unless
the money is specifically identifiable. See Brand v. Old Republic Nat’l Title Ins. C0., 797 So. 2d
643, 646 n3 (Fla. 3d DCA 2001); Belford Trucking C0. v. Zagar, 243 So. 2d 646, 648 (Fla. 4th
DCA 1970). Plaintiff has not specifically identified a fund sufficient to state a cause of action for
conversion, nor Will Plaintiff be able to do so. For this reason, Count II should be dismissed With
prejudice.
10. Finally, Plaintiff fails to plead the elements for conversion. No allegation is made
that the Decedent “converted” anything.
WHEREFORE, Defendant, Steven C. Swan, as Personal Representative of the Estate of
David S. Swan, Jr., Deceased, requests the Court to enter an Order dismissing the Complaint,
including dismissing Count II With prejudice, and to award such other relief as the Court considers
just.
CERTIFICATE OF SERVICE
I hereby certify that on the 28th day of August, 2019, I electronically filed the foregoing
With the Clerk of the Court by utilizing the Florida Courts E-Filing Portal, Which Will send a notice
of electronic filing to all counsel of record.
/S/ Mark M Wall

Mark M. Wall
Florida Bar Certified, Business Litigation
Florida Bar No. 58483
[email protected]
[email protected]
RELit.1Vfl[email protected]
HILL, WARD & HENDERSON, P.A.
3700 Bank of America Plaza
101 E. Kennedy Boulevard
Tampa, Florida 33602
Telephone: 8 1 3-22 1 -3 900
Facsimile: 8 1 3-22 1 -2900
13018338v1

Swan Motion To Dismiss

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Filing # 94932479 E-Filed 08/28/2019 04:17:08 PM

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

NOEL DEVINE, AS PERSONAL

V. Case No. 19-005206-CI—21

STEVEN C. SWAN, AS PERSONAL

thereof would show as follows:

1. The Statement of Claim attached to the Complaint as Exhibit “A” is an improper

of action on a promissory note.

purports to be a Note dated December 23, 2006, requiring yearly payments.

Note seems to describe a requirement to fund a particular account to cover a contingency of

to state a cause of action for breach of contract.

within Count II.

“jointly owned,” as referenced in Paragraph 19.

and from Which accounts and on Which occasions.

8. There are no dates whatsoever included Within Count II so it is impossible to

that the Decedent “converted” anything.

WHEREFORE, Defendant, Steven C. Swan, as Personal Representative of the Estate of

of electronic ﬁling to all counsel of record.

/S/ Mark M Wall

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