IN   THE   CIRCUIT   COUT   FOR   THESEVENTEENTH JUDICIAL CIRCUIT INAND    FOR     XXX    COUNTY,FLORIDACASE NO: CACE -XXX  

XXX, PA.,

a XXX professional association,

            Plaintiff,

v.

XXX and

XXX

           Defendant(s)

__________________________________________

DEFENDANT’S RESPONSE TO PLAINTIFF’S MOTION TO STRIKE AFFIRMATIVE DEFENSES, MOTION TO STRIKE SCANDALOUS MATTERS, MOTION TO DISMISS COUNTERCLAIM AND/OR FOR MORE DEFINITE STATEMENT

Now Comes the Defendants, JOSEPH MABE and XXX, and hereby respond to the Plaintiff’s Motion to Strike Defendants’ Affirmative Defenses, Motion to Strike Scandalous Matters, Motion to Dismiss Counterclaim, and Motion for More Definite Statement. Defendants also seek leave to Amend Defendants’ Answer, Affirmative Defenses, and Counterclaim. Defendants therefore respond as follows:

BACKGROUND

The Defendants retained the Plaintiff to represent Defendants in a matter with the Villas of Windmill Point Property Owners Association. A Retainer Agreement was entered to that effect. Consequently, a retainer fee of $5000 was paid by the Defendants to the Plaintiff.

During the proceeding at the case, the Plaintiff failed to meet the expectations of the Defendants as per the Retainer Agreement, which led to contentions about the payment for the Plaintiff. This contention led to the instant case filed on XXX, which case the Plaintiff filed against the Defendants to attempt to obtain money, which they (Plaintiff) are not entitled to.

Accordingly, on or about XXX, the Defendants filed an Answer, Affirmative Defenses, and Counterclaim to the Plaintiff’s Complaint.

Consequently, the Plaintiff filed a Motion to Strike Defendants’ Affirmative Defenses, Motion to Strike Scandalous Matters, Motion to Dismiss Counterclaim, and Motion for More Definite Statement.

Defendants therefore respond to the said Motion.

Defendant XXX has filed a Motion to Remove his pleadings. That notwithstanding, Defendant XXX files this Response with both Defendants Captioned until the Court issues a further ruling on Defendant XXX Motion.  STANDARD OF REVIEW

            Motions to Strike are not favored by the Courts. Accordingly, Courts sparingly allow Motions to Strike. Any doubts are resolved in favor of the pleadings. See Costa Bella Dev. Corp. v. Costa Dev.Corp.,445 So. 2d 1090, 1090 (Fla. 3d DCA 1984). Courts have deemed them “time wasters.” See XXX

ARGUMENTS

  1. The Defendants’ Answer and Affirmative Defenses are sufficient defenses for Plaintiff’s Complaint

A plaintiff must show that the defendant has not stated a legal defense or that the material is entirely without any possible relation to the controversy, wholly irrelevant, with no bearing on the equities and no influence at all on the decision. See decision. Bay Colony Office Bldg. Joint Venture v. Wachovia Mortg. Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977).

Besides, the list of Affirmative Defenses under Fla. R. Civ. P. 1.110(d) is not exhaustive. Notably, the said provision states that a party relying on an Affirmative Defense may allege “any other matter constituting an avoidance or affirmative defense.” Further, it is the intent of the legislators that the defense be given a broad interpretation by the Courts. Fla. R. Civ. P. 1.110(d) provides in that regard that“[w]hen a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation.”

In the instant action, the Defendants have stated Affirmative Defenses, which defeat the Plaintiff’s allegations in the Complaint. See Exhibit (Amended Answer, Affirmative Defenses and Counterclaim). First, Defendant avers that the Plaintiff’s Complaint Fails to State a Cause of Action. Instead, we maintain that it is the Plaintiff who violated Florida rules of professional conduct 4-1.2 by failing to abide by the Defendant’s decisions. Next, we aver that the Plaintiff filed the suit with unclean hands. Notably, the Plaintiff’s conduct was unfair and not in good faith when they failed to provide the service Defendant asked for. They acted without Defendant’s consent, failed to follow Defendant’s instructions, and failed to make requested objections of material nature. We also argued that the venue for the case is improper. The Villa Bankruptcy case involved an association located in Port Saint Lucie, County, Florida, and was litigated before the U.S. Bankruptcy Court for the Southern District of Florida, West Palm Beach Division. Therefore, the Plaintiff ought to have filed the case either in Port Saint Lucie County or Palm Beach County. Next, we alleged that the Plaintiff failed to Mitigate Damages by violating the Rules of the Professional Conduct. The Plaintiff also failed to abide by the Defendant’s decisions. For instance, the Plaintiff failed to plead Defendant’ legitimate bad faith concerns. Another Affirmative defense the Defendant raised is that the Plaintiff charged excessive fees yet Plaintiff disregarded Defendant’s decisions. Lastly, the Plaintiff subjected the Defendant to duress. The Plaintiff told the Defendant that if the Settlement Agreement was not signed he would not represent her. The Plaintiff coerced the Defendants into signing an agreement using undue influence  and for which he  did not have the consent to agree to and  failed to object to  a motion that was filed to force a settlement before all the parties had agreed to a settlement.

It is trite law that if a valid affirmative defense is timely pleaded and proven, it could totally defeat or partial reduce, the claims raised by the plaintiff in the complaint. See State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079 (Fla. 2014) (quoting St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002)). It is also worth noting that affirmative defenses avoid liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability.” Therefore, Defendantss Affirmative Defenses suffices to challenge Plaintiff’s Complaint.

  1. The Defendant’s Pleading directly concerns the controversy, is wholly relevant, has a direct bearing on the equities and has an influence on the decision.

It has been held severally that the striking of pleadings is not favored and is “a drastic action” to be used sparingly by the courts, with any doubts to be resolved in favor of the pleadings. Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090, 1090 (Fla. 3d DCA 1984) (affirming order denying motion to strike affirmative defenses “since the striking of pleadings is not favored and all doubts are to be resolved in favor of the pleadings”); Sanchez v. LaSalle Bank Nat. Ass’n, 44 So. 3d 227, 228 (Fla. 3d DCA 2010) (holding court improperly struck defenses suasponte).Further, a court must deny a motion to strike matter as redundant, impertinent, immaterial, or scandalous unless the matter sought to be stricken is (i) wholly irrelevant, (ii) can have no bearing on the equities, and (iii) can have no influence on the final decision either as to the relief to be granted or allowance of costs. Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762, 769 (Fla. 4th DCA 1972); Town of Howey-in-the-Hills v. Graessle, 160 Fla. 638, 645 (Fla. 1948); Westervelt v. Istokpoga Consol. Subdrainage Dist., 160 So.2d 641 (Fla. 1948).

The Florida Supreme Court has defined a sham pleading as one that is “palpably or inherently false, and from the plain or conceded facts in the case, must have been known to the party interposing it to be untrue.” Rhea v. Hackney, 117 Fla. 62, 70, 157 So.190, 193 (1934). To strike a pleading as a sham, a party must so move before trial, and the trial court must conduct an evidentiary hearing. See Fla. R. Civ. P. 1.150(a).

“The test whether [a] pleading is good or bad” should be “whether the adversary is actually able to understand the pleading and make answer.” See Hankin’s Alternative and Hypothetical Pleading (1924), 33 Yale L.J., at page 366. If there is nothing uncertain about the essential elements of the pleading, then there is no reason why it should be held bad. Id.

If a pleading, taken as a whole, states cause of action or defense, it should not be dismissed or struck out. See Harrell v. Hess Oil & Chemical Corp., 287 So. 2d 291, 295 (Fla. 1973) (reversing dismissal based on surplusage); Balbontin v. Porias, 215 So. 2d 732, 734 (Fla. 1968) (“Even though [a pleading] violates spirit and intent of rules of pleading, if [the pleading] as a whole, in any part, stated cause of action, the remaining parts could be considered as surplusage.”); Beraglia v. Owens-Corning Fiberglass Corp., 606 So. 2d 1213, 1214 (Fla. 3d DCA 1992).

In the instant action, the Defendants aver that the pleading sufficiently meets the pleading requirements. Notably, Defendants have pled with certainty, and have alleged ultimate facts establishing the defendant’s defense and case (for the counterclaim), under the legal principle stated therein.  The Defendants have outlined how the Plaintiff’s Complaint fails to point out any liability on Defendants. Further, the Defendants responses are all based on the allegations in Plaintiff’s Complaint. It cannot therefore be argued that the Defendants raised any defense that is not related to the controversy in question. It is also notable that all the Defendants’ responses are grounded on recognized legal principles, which Defendants have backed with pertinent supporting facts.

  1. The Plaintiff cannot claim for work done in excess of their authority

Quantum meruit is an equitable claim. Accordingly, the party relying on quantum meruit ought to do equity and come to the court with clean hands. See City of Wink v. Griffith Amusement Co., 129 Tex. 40, 100 S.W.2d 695, 702 (1936); Breaux v. Allied Bank of Texas, 699 S.W.2d 599, 604 (Tex. App. Houston [14th Dist.] 1985, writ ref’dn.r.e.).

In the instant action, the Plaintiff made decisions without involving the Defendants. This violated the attorney-client relationship, where the attorney is the agent of the client. The Plaintiff refused to file objections to the Court. The Plaintiff also failed to present crucial evidence to the Court that would have been to the interest of justice. It follows; the Plaintiff incurred expenses for services that had not been approved by the Defendants.  

  • The Plaintiff filed this case at the wrong venue.

Defendants understand that “[v]enue refers to the geographical area, that is, the county or district, wherein a cause may be heard or tried. It concerns the privilege of being accountable to a court in a particular location.” Ringling Bros.–Barnum & Bailey Combined Shows, Inc. v. State, 295 So. 2d 314, 315 (Fla. 1st DCA 1974).Pursuant to Fla. Stat. §47.011, “[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.”

When an action is filed in an improper venue, Florida Rule of Civil Procedure 1.060(b) provides that the court may transfer the action to the proper court in any county where it might have been brought in accordance with the venue statutes. SeeMcClain v. Crawford, 815 So. 2d 777, 778 (Fla. 2d DCA 2002) (“[T]he remedy for improper venue is a transfer to the proper venue, not dismissal.”).

The Florida Rule of Civil Procedure 1.140(b)(3) requires a defendant to challenge improper venue timely, either by motion or, if no motion is filed, by a defense raised in the responsive pleading. Importantly, an objection to venue is waived if not timely raised. See State Dep’t of High.Saf.& Motor Vehs., 583 at 787 (Fla. 2d DCA 1991) (“[V]enue, when not objected to, is appropriate in a court having jurisdiction.”).

In this action, the Villa Bankruptcy case involved an association located in Port Saint Lucie, County, Florida, and was litigated before the U.S. Bankruptcy Court for the Southern District of Florida, West Palm Beach Division. One defendant lives in Port St Lucie County and both the properties owned by the Defendant are in Port St. Lucie County. This matter should therefore have been filed in Port Saint Lucie County, Florida or Palm Beach County, Florida and the Defendant intend to file a Motion for Change of Venue in that regard.

            WHEREFORE, these premises considered, Defendants move this court to deny the allegations in Plaintiff’s Motion to Defendants’ Affirmative Defenses, Motion to Strike Scandalous Matters, Motion to Dismiss Counterclaim, and Motion for More Definite Statement; and to dismiss the Motion in its entirety. Defendants also pray the venue of this Case be changed to the Port Saint Lucie County, Florida or Palm Beach County, Florida. Finally, Defendants pray this Court grant any other remedy it deems just.

 Respectfully submitted,                    XXX                                                                            XXX  

Dated: ____________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing has been served via the indicated method on this ______ day of XXX on the following parties:

Via  XXX E-portal

XXX

E-mail :XXX

                                                                                    /s/XXX

Additional comments:

1

PLEASE ADVISE[pc1] 

4.     XXXX 


 

 [pc1]We will just file the documents with only one Defendant.

 

 [pc2]Please consult the Clerk of the Court, for more information on filing. 

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