Wed, August 25, 2010 6:08:06 PM
motion for leave file amended complaint
From: / Clifford M. Miller <>View Contact
To: / Manuel Casares <>
Dear Mr. Casares:
I read your motion. I have a few questions and comments:
1. The motion is defective unless it has a copy of the proposed Amended Complaint attached to it. I suggest it be sworn to also, since it is fact based. Unless the Amended Complaint states causes of action, the motion is properly denied. So, if the Amended Complaint rambles instead of being properly pled, you will probably not be able to win the motion to amend.
2. I formerly represented BrigittaEngelman. I assume that this doesn’t matter, but I thought I would let you know because she is apparently a potential witness for you.
3. I searched at length for legal authority that would advance the meaning of “restored” to the definitive meaning you are assigning to it. I found a reference that in the context of antiques, “restored” means put in the condition the item was when new, with all later changes removed. But, until I see this (or another) meaning adopted as a law, I will not accept that any individual meaning has the force of law. It would appear that there are many possible definitions for the word. I found the chapter in the IRCo. Code you referenced and the Federal Standards, but I cannot find the legal authority for your argument in the ordinance. Perhaps I am just missing it. Please send me a pinpoint citation to it, or a copy of the statute/rule/ordinance. Please highlight where the word “restored” is defined as a matter of law.
4. How do you respond to the argument that if the house was not “restored,” (using your meaning for “restored”) that it would have been obvious to a casual inspection? For example, the electrical system used in 1925 when the house was built, would have used two-pronged, not three-pronged outlets, and would not have included central air-conditioning, or air-conditioning, at all.
5. How do you know that the mold was known (or should have been known) to the sellers or their agent?
6. Have you considered the Economic Loss Rule (ELR) and how it might limit your damages? Was this issue raised by the defendants? (Basically, you cannot get tort (PI) damages for a breach of contract. You have to show a separate tort to get those damages. But, the legal issue is tricky to analyze.)
7.At this point in the case, the actions of Mr. Melville, whether negligent or not, whether proper or not, have not caused any damages to you, except possibly for the unnecessary work done, or the work that has to un-done or re-done. The damages are limited in this fashion because another lawyer could probably rectify any harm done. It would be nearly impossible to win the argument that there is no licensed lawyer in Florida who will represent you to correct these issues. In order for me to determine what work that he did was unnecessary or created the need for work that otherwise could have been avoided, I will have to review all the documents involved in the case. I am especially interested in any legal opinions given to you in writing by Mr. Melville.
8. If you want me to represent you, I will have to review all the documents in the case before I can even give you an opinion on the likelihood that you will be able to prevail; and if so, your likely damages. Your statements to me are not sufficient for me to come to a conclusion; I need to see everything involved. I will not appear for you unless and until I can independently determine that you have a valid case. For that review, my fee will be $300/hour and I will require a retainer of $10,000 to begin the review. I will need you to provide a copy to me of every document you have related to this matter. Please do not edit them or decide which pleadings, etc are important and which are not. I need to decide that. The more organized the documents are, the less time it will take me to review them. The pleadings and correspondence however, should just be in reverse chronological order. I will get a full copy of the file from the clerk of court. It will not include many important items that do not routinely get filed, so I will get the remainder of them either from Mr. Melville, opposing counsel, or in the case of deposition transcripts, from the court reporter. The cost of getting these copies will be your cost as well, and it could be substantial.
Clifford M. Miller
Florida Bar Board Certified Civil Trial Lawyer
Miller Law Offices
3760 20th St; Ste B
Vero Beach FL 32960-2464
772-562-4570
fax: 772-567-8861