BEHAR, GUTT, & GLAZER, PA.,
a Florida professional association,
Plaintiff,
v.
JOSEPH MABE and
MERRILEE ZAWADZKI
Defendant(s)
DEFENDANTS’ 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 MERRILEE ZAWADZKI, 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 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
IN THE CIRCUIT COUT FOR THE
SEVENTEENTH JUDICIAL CIRCUIT IN
AND FOR BROWARD COUNTY,
FLORIDA
CASE NO: CACE -21-021315 Division 3
Plaintiff. This contention led to the instant case filed on December 12, 2021, which case the
Plaintiff filed against the Defendants to attempt to obtain money, which they (Plaintiff) are not
entitled to.
Accordingly, on or about December 29, 2021, 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.
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 Carslon Corporation/Southeast v. School Bd. of Semiole County, Fla., 778 F.
Supp. 518 , 519 (M.D. Fla. 1991). Further, it is not a ground to strike a pleading, that a party
cannot prove the allegations in the pleadings. See Sanchez v. LaSalle Bank Nat. Ass’n, 44 So. 3d
227, 228 (Fla. 3d DCA 2010).
ARGUMENTS
i. 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, Defendants aver 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 Defendants’ 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 Defendants asked for. They acted without Defendants’ consent,
failed to follow Defendants’ 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 thecase 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 Defendants’ decisions. For instance, the Plaintiff failed to plead
Defendants’ legitimate bad faith concerns. Another Affirmative defense we raised is that the Plaintiff
charged excessive fees yet Plaintiff disregarded Defendants’ decisions. Lastly, the Plaintiff subjected
the Defendants to duress. The Plaintiff told the Defendants that if the Settlement Agreement was not
signed he would not represent them.
NotablyIt is trite law that, if a valid affirmative defense is timely plead 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, Defendants’ Affirmative Defenses
suffice to challenge Plaintiff’s Complaint.
ii. 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 sua sponte). 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.
iv. 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’d n.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.
v. 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. See McClain 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 Defendants 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 Defendants 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.
Dated: __
Respectfully submitted,
/s/Merrilee Zawadzki
Merrilee Zawadzki
101 S. Union Street, Ste. 106
Plymouth, MI 48170
Respectfully submitted,
/s/Joseph Mabe
Joseph Mabe
174 SW Colesbury Avenue
Port St. Lucie, FL 34953
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 January, 2022 on the following parties:
Via Florida E-portal
BEHAR, GUTT & GLAZER, P.A.
IRA GUTT, ESQ.
STACEY L. GLADDING, ESQ.
DCOTA A-350
1855 GRIFFIN ROAD
FORT LAUDERDALE, FL 33004
E-mail: collections@bgglaw.com
igutt@bgglaw.com
sgladding@bgglaw.com
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