Filing # 198102414 E-Filed 05/10/2024 05:30:13 PM

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-
DADE COUNTY, FLORIDA

CASE NO. 2023-016493-CA-01

KATHERINE ROGERS, an
individual

Plaintiff,
v.

NOMADE VILLA COLLECTION, LLC,

a Florida limited liability company,
ESCAPE LUXURY HOSPITALITY, LLC, a
Florida limited liability company,
VILLA SUKAYA, LLC, a Florida limited
liability company,

Defendants,
__________________________/

PLAINTIFF/COUNTER-DEFENDANT’S MOTION TO DISMISS

DEFENDANTS/COUNTER-PLAINTIFFS’ COUNTERCLAIM

COMES NOW, Plaintiff/Counter-Defendant, KATHERINE ROGERS, referred to herein as

“Rogers”, by and through her undersigned legal counsel, hereby files this Motion to Dismiss

Defendants/Counter-Plaintiff’s Counterclaim and, in support thereof state as follows:

I. MOTION TO DISMISS STANDARD

The sufficiency of a complaint in a civil action is a question of law. See McKinny Green,

Inc. v. Davis 606 So.2d 393 (Fla. 1st DCA 1992); see also Cintron v. Osmose Wood Preserving,

Inc., 681 So.2d 859 (Fla. 5th DCA 1996). The purpose of a motion to dismiss is to determine

whether the plaintiff has alleged a valid cause of action, and for purposes of considering a motion

to dismiss a complaint, the court must assume that all facts alleged in the complaint are true.

Hammonds v. Buckeye Cellulose Corp., 285 So.2d 7 (Fla. 1973). The fundamental rule of pleading

is that a party must affirmatively allege the facts on which he or she predicates his or her cause of

action or defense. Roney v. City of Miami Beach, 3 So.2d 701 (Fla. 1941). The pleading of mere

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inferences, opinions, theories, or legal conclusions are insufficient to support a complaint. Barrett

v. City of Margate, 73 So.2d 1160 (Fla. 4th DCA 1999). Every fact essential to the cause of action

must be stated distinctively, definitely, and clearly. Loving v. Viecelli, 164 So.2d 560 (Fla. 3rd

DCA 1964). It is well established that the allegations in a complaint should be set forth with

certainty, clarity, and conciseness, and are direct, positive, explicit, and do not leave anything to

be deduced by inference or argument. Saucer v. City of West Palm Beach, 21 So.2d 452 (Fla.

1945). Finally, the allegations made within a pleading are the operative facts upon which the

pleading party bases their claims or defenses. Coca-Cola Bottling Co. v. Clark, 299 So.2d 78 (Fla.

1st DCA 1974).

Furthermore, Rule 1.110(b), Fla. R. Civ. P., requires a pleader to set forth “a short and plain

statement of the ultimate facts showing that the pleader is entitled to relief.” To survive a motion

to dismiss, a complaint must allege a prima facie case. See Alvarez v. E & A Produce Corp., 708

So. 2d 997, 999 (Fla. 3d DCA 1998). Whether a prima facie case has been pled depends upon the

sufficiency of the plaintiff’s allegations of fact, excluding the bare conclusions of law. Id. at 1000.

See Clark v. Boeing Co., 395 So. 2d 1226, 1229 (Fla. 3d DCA 1981) (complaint must contain

ultimate facts supporting each element of the cause of action raised -- "mere conclusions are

insufficient”); Sunbeam Television Corp. v. Mitzel, 83 So. 3d 865 (Fla. 3d DCA 2012) (a plaintiff

must set forth the elements of its cause of action and show that it has or can develop the facts

necessary to support it).

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 II. ARGUMENT AND MEMORANDUM OF SUPPORTING LAW

A. GENERAL DEFECTIVENESS OF DEFENDANTS/COUNTER-PLAINITFFS’

COUNTERCLAIM

Defendants/Counter-Plaintiffs, NOMADE, LLC, ESCAPE LLC, SUKAYA’S1 (“Counter-

Plaintiffs”) Counterclaim filed herein is inconsistent, fails to place Rogers on notice of clear and

concise allegations and theories to be able to respond accordingly and further commingles the

various parties in this action, to the extent that it is impossible to comprehend and understand who

the Counter-Plaintiffs are in relation to any agreements, actions and/or relationships between those

parties and Rogers. Additionally, the Counterclaim fails to set forth (1) who the parties are and (2)

any allegations relating to the jurisdictional requirements to bring said action.

B. COMMINGLING OF DEFENDANTS/COUNTER-PLAINTIFFS NOMADE, LLC,

ESCAPE, LLC AND SUKAYA

It should be noted that throughout the Counterclaim, one of the Counter-Plaintiffs is listed as

“Sukaya”. There is no such party known as Sukaya. Rogers can only assume that the Counterclaim

is referring to Villa Sukaya LLC, a Florida limited liability company.

Additionally, in the opening “comes now” paragraph, the three (3) Counter-Plaintiffs,

including the defectively described “Sukaya”, are referred to as “Defendant/Counter-Plaintiffs”. It

is not clear and it is confusing that in the body of the Counterclaim sometimes there is a reference

to Defendant/Counter-Plaintiff’s i.e., paragraph 10 of the Counterclaim, contradicted again in

paragraph 12 of the Counterclaim a reference is made to “Defendants/Counter-Plaintiffs”. See also

paragraphs 14, 17, 20, 23, 28, 29, 30 and wherefore clauses in Counts I and II of the Counterclaim.

1
Rogers can only assume that Counter-Plaintiffs are referring to “Villa Sukaya, LLC”, but Counter-Plaintiffs state
“Sukaya.”

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 Further, see paragraph 24 of the Counterclaim, where there is an additional reference that is in

direct conflict stating “Defendants/Counter-Plaintiff”.

In addition to this confusion, throughout the Counterclaim, the “Defendants/Counter-

Plaintiffs” or “Defendant/Counter-Plaintiff” or “Defendant/Counter-Plaintiffs” are referred to as

“Escape and Nomade LLC” or “Escape and Nomade, SUKAYA” or “Escape and Nomade”. One

only needs to look and compare paragraphs 17, 20 and 23 of the Counterclaim to see how within

those several paragraphs contained in Count I of the Counterclaim, the Counter-Plaintiffs provide

different descriptions of the parties who are claimed to be the Counter-Plaintiffs. This causes

significant confusion in order for anyone to be able to know who is being referred to be able to

appropriately and properly respond to the Counterclaim.

C. FAILURE TO PROVIDE NECESSARY SPECIFICITY REGARDING ALLEGED

LOAN AGREEMENT

In paragraphs 3 and 4 of the Counterclaim, Counter-Plaintiffs claim that some “loan” was made

between “Rogers and Nomade”. Counter-Plaintiffs fail to set forth whether said loan was oral or

written and, if written, fail to attach a copy of the written agreement.

Additionally, Counter-Plaintiffs fail to set forth all of the material terms and conditions of such

loan, including when the loan was made, what the terms of the loan were, whether there was

interest or not on the loan and the amount of such interest, whether there was any prepayment

penalty, whether the loan was secured by any collateral, and/or what default provisions were made,

if any.

Moreover, it is unclear who Counter-Plaintiffs refer to as “Nomade”, based upon the confusion

as set forth hereinabove regarding the designation of the particular entities and no description of

the entities being made whatsoever.

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 Since Rogers has taken the position in the Complaint that no such loan ever existed and

Counter-Plaintiffs are now alleging some loan agreement existed, it is most essential and required

that the Counter-Plaintiffs set forth all allegations with the required specificity, to place Rogers on

notice in order for her to properly defend against this phantom loan that the Counter-Plaintiffs have

alleged.

More confusing throughout the Counterclaim is the fact that although “Nomade” alleges that

a loan was made and that Rogers did loan “Nomade” $144,475.15, see paragraph 4 of the

Counterclaim, Counter-Plaintiffs allege that the money was in fact paid to “Sukaya”.

Counter-Plaintiffs further conclude that since no money was paid by Rogers to either

“Nomade” or “Escape” by alleging that the money was paid to “Sukaya”, which is contradicted by

other allegations in the Counterclaim that state that “Nomade” was loaned the money. Nowhere

within the Counterclaim do the Counter-Plaintiffs explain this conflict within their own pleadings.

D. FAILURE TO PROPERLY PLEAD A CLAIM FOR DECLARATORY

JUDGMENT

Counter-Plaintiffs bring a declaratory judgment claim in Count I of the Counterclaim. In order

to be entitled to declaratory relief, a party must show: (1) there is a bona fide, actual, present

practical need for the declaration; (2) that the declaration deals with a present, ascertained or

ascertainable state of facts or present controversy as to a state of facts; (3) that some immunity,

power, privilege, or right of the complaining party is dependent upon the facts or the law applicable

to the facts or the law applicable to the facts; (4) that there is some person or persons who have, or

reasonably may have an actual, present, adverse, and antagonistic interest in the subject matter,

either in fact or law; and (5) that the antagonistic and adverse interests are all before the court by

proper process or class representation and that the relief sought is not merely giving of legal advice

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by the courts or the answer to questions propounded from curiosity. Coal. for Adequacy & Fairness

in Sch. Funding, Inc. v. Chiles, 680 So.2d 400, 404 (Fla.1996) (quoting Santa Rosa County. v.

Admin. Comm'n, Div. of Admin. Hearings, 661 So.2d 1190, 1192–93 (Fla.1995)).

The Counter-Plaintiffs bring a claim for declaratory judgment which is not the proper

vehicle as Counter-Plaintiffs have not met the elements required to bring such claim. There is a

clear conflict in the face of the claim as the declaratory action is confusing. Specifically, the

Counter-Plaintiffs state that “Escape” and “Nomade” are the lawful owners without providing a

basis as to why the lis pendens is not appropriate as according to the allegations that Rogers loaned

money to “Nomade” and the fact that Counter-Plaintiffs admit that Rogers has not been paid back.

Moreover, Counter-Plaintiffs allege that the subject lis pendens is “fraudulent” but entirely

fail to provide plead with specificity the basis for such allegation. If Rogers loaned monies to

“Nomade” and “Nomade” is the same as Defendant Nomade LLC, who is the owner of real

property subject to this litigation, Counter-Plaintiffs have admitted that Rogers has in fact not been

paid back to this date, but fail to provide a legal basis to ascertain that the lis pendens is fraudulent.

E. FAILURE TO PROPERLY PLEAD A CLAIM FOR SLANDER OF TITLE

In a slander of title action, also known as a disparagement of title or property action, the

plaintiff must prove the following five elements: (1) a falsehood; (2) has been published, or

communicated to a third person; (3) when the defendant-publisher knows or reasonably should

know that it will likely result in inducing others not to deal with the plaintiff; (4) in fact, the

falsehood does play a material and substantial part in inducing others not to deal with the plaintiff;

and (5) special damages are proximately caused as a result of the published falsehood. McAllister

v. Breakers Seville Ass'n, 981 So.2d 566, 573 (Fla. 4th DCA 2008) (quoting Bothmann v.

Harrington, 458 So.2d 1163, 1168 (Fla. 3d DCA 1984)).

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 Here, Counter-Plaintiffs state in paragraph 28 of the Counterclaim that “ROGERS knew, or

should have reasonably known, that its actions regarding the Fraudulent Lis Pendens would induce

others to believe there is a could on the title affecting the Property, thus affecting

Defendants/Counter-Plaintiffs ESCAPE and NOMADE, Villa Sukaya, LLC’s ability and right to

convey the Property with clear and marketable title.” Specifically, Counter-Plaintiffs allege that

the actions of Rogers affected “Escape” and Nomade”, including “Villa Sukaya LLC”. There is

confusion and no basis whatsoever for Counter-Plaintiffs to make such statement when Counter-

Plaintiffs fail to state how was “Villa Sukaya, LLC” affected since it is not the owner of the real

property subject to this action.

Additionally, Counter-Plaintiffs fail to allege any reasonable basis that would entitle them to

obtain the recovery of attorneys’ fees and costs as the “[T]he plaintiff has the burden of establishing

falsity.” Bothmann v. Harrington, 458 So.2d 1169 (Fla. 3d DCA 1984). In this case, the Counter-

Plaintiffs have failed to prove that there was a published falsehood that proximately caused

Counter-Plaintiffs some special damages as a result thereof. A plaintiff must prove that the alleged

falsehood played a “material and substantial part in inducing others not to deal with the plaintiff.”

Bothmann, 458 So. 2d at 1168. To satisfy this element, “the plaintiff must present specific evidence

showing exactly how the falsehood induced others not to deal with the plaintiff.” Trigeorgis v.

Trifeorgis, 240 So. 3d 772, 775 (Fla. 4th DCA 2018).

Finally, “the plaintiff must always plead and prove special damages.” Bothmann, 458 So. 2d

at 1170. Special damages “are those that do not necessarily result from the wrong or breach of

contract complained of, or which the law does not imply as a result of that injury, even though

they might naturally and proximately result from the injury.” Land Title of Cent. Fla., LLC v.

Jimenez, 946 So. 2d 90, 93 (Fla. 5th DCA 2006) (citing Bialkowicz v. Pan Am. Condo. No. 3, Inc.,

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215 So. 2d 767, 770 (Fla. 3d DCA 1968). Based upon the foregoing, Counter-Plaintiffs’ claim for

attorneys’ fees and costs should be stricken accordingly.

WHEREFORE, for the foregoing stated reasons, Plaintiff/Counter-Defendant,

KATHERINE ROGERS, hereby respectfully requests that this Honorable Court dismiss

Defendants/Counter-Plaintiffs, Counterclaim and award Plaintiff/Counter-Defendant Rogers Aher

reasonable attorneys’ fees and costs for having to defend against same, and any additional relief

this Honorable Court deems just and proper under the circumstances.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was emailed this 10th day

of May, 2024, to Antoine Dumas, Esq., adumas@talentedtenthlaw.com, Talented Tenth Law,

PLLC, 1451 W. Cypress Creek Road, Suite 300, Fort Lauderdale, Florida 33309.

MARCUS LAW CENTER, LLC

2600 S. Douglas Road, Suite 1111
Coral Gables, FL 33134
Tel: (305) 507-1203
/s/ Alan K. Marcus
__________________________
Alan K. Marcus, Esq.
Florida Bar No.266116
amarcus@marcuslawcenter.com

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