MOTION TO DISMISS SECOND AMENDED COMPLAINT

 IN THE COUNTY COURT IN AND FOR

ESCAMBIA COUNTY, FLORIDA

LILIIA SHUBIN and WILLIAM

SHUBIN, Pro Se

Plaintiffs

v.

Case No.: 2025CC000160

Scott Ritchie

Circuit Judge

DELTA MAX, INC.,

Defendant,

______________________________________/

PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANT’S

MOTION TO DISMISS SECOND AMENDED COMPLAINT

Plaintiffs, Liliia Shubin and William Shubin, appearing pro se, respectfully

file this Response in Opposition to Defendant’s Motion to Dismiss the

Second Amended Complaint and state the following:

INTRODUCTION

Defendant’s Motion to Dismiss misrepresents the nature of Plaintiffs’ claims,

disregards well-pled factual allegations, and improperly attempts to resolve

factual disputes at the pleading stage—matters that are appropriate for

summary judgment or trial, not a Rule 1.140(b)(6) motion.

Plaintiffs assert a valid and factually substantiated cause of action for breach

of a cost-plus construction agreement. Furthermore, Plaintiffs have filed:

• a Motion to Supplement the Second Amended Complaint to formally

attach the contract as Exhibit A, and

• a Motion to Strike Paragraphs 22–24 of the Complaint to eliminate

any reference to protected settlement communications.

Both motions directly address and moot two of Defendant’s central

arguments.

ARGUMENT

I. THE SECOND AMENDED COMPLAINT STATES A VALID CAUSE

OF ACTION

Under Florida law, a cause of action for breach of contract requires:

(1) a valid contract;

(2) a material breach; and

(3) resulting damages.

See Friedman v. New York Life Ins. Co., 985 So. 2d 56 (Fla. 4th DCA

2008).

The Second Amended Complaint clearly meets these elements. Plaintiffs

allege a cost-plus construction contract, Defendant’s failure to provide

itemized billing and written change orders, and resulting damages of

$33,288.90 based on specific overcharges and unauthorized work.

II. THE CONTRACT IS INCORPORATED AND WILL BE FORMALLY

ATTACHED

The existence and terms of the cost-plus contract are referenced throughout

the Second Amended Complaint and acknowledged by Defendant in prior

filings. Plaintiffs have moved to supplement the complaint by attaching the

contract as Exhibit A to remove any doubt regarding incorporation by

reference.

III. DEFENDANT’S BREACH WAS MATERIAL AND FUNDAMENTAL

Defendant’s submission of vague, inflated invoices and unauthorized work

directly violates the transparency and accountability central to any cost-plus

agreement. Florida law recognizes that such actions constitute a material

breach when they undermine the essence of the bargain. See Equity Lifestyle

Props., Inc. v. Fla. Mowing & Landscape Serv., Inc., 556 F.3d 1232 (11th

Cir. 2009).

IV. NO WAIVER OCCURRED; PAYMENT WAS MADE UNDER

PROTEST

Plaintiffs did not waive their right to dispute the charges. Payments were

made without the benefit of adequate documentation, and Plaintiffs formally

requested receipts and records after the final invoice. The subsequent review

revealed substantial discrepancies, and Plaintiffs notified Defendant of

objections—making clear that payment was made under protest and does not

constitute waiver.

V. DAMAGES ARE SPECIFIC, QUANTIFIED, AND BASED ON

DOCUMENTED OVERCHARGES

Contrary to Defendant’s claim, this is not a case of subjective dissatisfaction

or estimation disagreement. Plaintiffs have identified specific unauthorized

charges and overbilling, totaling $33,288.90, supported by comparative

analysis of actual work performed, materials used, and scope deviations.

VI. PARAGRAPHS 22–24 ARE SUBJECT TO MOTION TO STRIKE

UNDER §90.408

Plaintiffs have filed a Motion to Strike Paragraphs 22–24 pursuant to Fla.

Stat. §90.408, which bars admission of settlement discussions. Plaintiffs

affirm that they will not rely on those communications at trial. Accordingly,

this objection by Defendant is now moot.

VII. MEMORANDUM OF LAW FILED SEPARATELY

In further support of this Response, Plaintiffs have submitted a separate

Memorandum of Law addressing the applicable legal standard and citing

relevant case law, rules, and statutes demonstrating the sufficiency of the

Second Amended Complaint.

CONCLUSION

The Second Amended Complaint meets and exceeds the threshold for

pleading a valid cause of action under Florida’s notice pleading standard. It

states a clear, factually supported claim for breach of contract, includes

quantified damages, and has addressed the procedural objections raised by

Defendant through separate motions.

WHEREFORE,

Plaintiffs respectfully request that this Court:

1. DENY Defendant’s Motion to Dismiss the Second Amended

Complaint;

2. GRANT Plaintiffs’ Motion to Supplement the Complaint to include

the Contract as Exhibit A; and

3. GRANT Plaintiffs’ Motion to Strike Paragraphs 22–24 of the Second

Amended Complaint as improper under Fla. Stat. §90.408.

Respectfully submitted,

Liliia Shubin William Shubin

Liliia Shubin William Shubin

Pro Se Plaintiffs

30 day of May , 2025

Respectfully submitted,

Liliia Shubin and William Shubin

2299 Dog Track Rd., Pensacola,

FL 32506

libra689110@gmail.com

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of foregoing has been served on

Attorney for Defendant Delta Max, INC, Jeffrey S. Howell via email to

Jeff@jsh-pa.com, John Wilson via e-mail to johnwilson@jsh-pa.com and via

mail to Howell, Buchan & Strong 2898-6 Mahan Drive Tallahassee, Florida

32308 on this 30 day of May , 2025.

Liliia Shubin and William Shubin

Liliia Shubin and William Shubin