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Filing # 134357666 E-Filed 09/10/2021 12:35:48 PM
IN THE CIRCUIT COURT OF THE SEVENTEENTH
JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA
SHARON WIEST, an individual,
CASE NO.: CACE-21-010732
Plaintiff,
V.
TIDEWATER ESTATES CO-OP, INC.,
a Florida not-for-profitcorporation,
Defendant.
i
ANSWER AND AFFIRMATIVEDEFENSES TO PLAINTIFF'SCOMPLAINT
Defendant, TIDEWATER ESTATES CO-OP, INC. (hereinafter, "Tidewater Estates"), by and
through its undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiffs
Complaint. In support, Tidewater Estates states as follows:
ANSWER
Parties, Jurisdiction and Venue
1.
The Defendantis without sufficient knowledge to admitor deny the allegation contained
in paragraph 1, and accordingly, denies same and demands strict proofthereof.
2.
The Defendant admits the allegations contained in paragraphs 2 and 3.
3.
With regard to the allegations contained in paragraph 4, Defendant admits that it
conducts business in Broward County.
The Defendant denies the remainder of the allegations
containedin paragraph 4.
4.
The Defendant denies the allegations contained in paragraph 5.
5.
The Defendant is without sufficient knowledge to admit or deny the allegation contained
in paragraph 6, and accordingly, denies same and demands strictproofthereof.
General Allegations
6.
The Defendant denies the allegations contained in paragraph 7 based on wordingand/or
language contained therein.
7.
With regard to the allegation contained in paragraph 8, the Defendant admits that the
Plaintiffis a Chapter 723 tenant of a lot in the TidewaterEstates community (and not the cooperative
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64TH AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058
*** FILED: BROWARDCOUNTY, FL BRENDA D. FORMAN, CLERK 09/10/2021 12:35:48 PM.****
CASE NO.: CACE-21-010732
parcel that is the subject of this court action). The Defendant denies the remainder of the allegations
contained in paragraph 8 based on wording and/or language (and ambiguity) containedtherein.
8.
With regard to the allegations contained in paragraph 9, the Defendant is without
sufficient knowledge to admit or deny the allegation contained therein that the Plaintiff"desired to
purchase'. '.'a share", and accordingly, denies same and demands strict proof thereof. The Defendant
denies the remainder of the allegations contained in paragraph 9 based on wording and/or language
(and ambiguity) contained therein, including but not limited to, the Plaintiff fails to identity the
cooperative parcel in the Tidewater community for which the allegation relates to (and only states
"share").
9.
The Defendant denies the allegations contained in paragraphs 10 and 11 Gee alsopara.
8 above).
10.
With regard to the allegations contained in paragraph 12, the Defendant is without
sufficient knowledgeto admit or deny the allegations relating to alleged conduct by the Plaintiff, and
accordingly, denies same and demands strict proof thereof.
11.
With regard to the allegations contained in paragraph 13, the Defendant is without
sufficientknowledgeto admit or deny the allegations relating to alleged conduct by the Plaintiff, and
accordingly, denies same and demands strict proofthereof.
12.
The Defendant denies the allegations contained in paragraphs 14,15 and 16.
13.
With regard to the allegations contained in paragraphs 17 and 18, the Defendant admits
a communicationbetween the Defendant's counsel and the Plaintiffbut denies the allegations as to the
contents of that communication.
14.
The Defendant denies the allegations contained in paragraph 19.
15.
The Defendant is without sufficient knowledge to admit or deny the allegations
contained in paragraph 20, and accordingly, denies same and demands strict proof thereof. The
Defendant admits receipt of the letter attached as Exhibit "B".
16.
With regard to the allegations contained in paragraph 21, the Defendant admits the
forwarding of a May 18, 2021, letter to counsel for the Plaintiff. The Defendant denies the remainder
of the allegations of the paragraph as it relates the Plaintiff's characterization of the letter, and
furthermore states that the letter speaks for itself.
17.
The Defendant denies the allegations contained in paragraphs 22,23 and 24.
2
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64'
'TH AVENUE, DAVIE, FLORIDA 33314 I (954) 587-3058
CASE NO.: CACE-21-010732
Count I - Breach of Contract
18.
With regard to the allegation contained in paragraph 25, Defendant restates and re-
alleges herein its answers to the allegations contained in paragraphs 2 through24 as set forth above.
19.
The Defendant denies the allegations contained in paragraphs 26, 27 and 28, and
demands strictproofthereof.
Count II - Specific Performance
20.
With regard to the allegation contained in paragraph 29, Defendant restates and re-
alleges herein its answersto the allegations contained in paragraphs 2 through 24 as set forth above.
21.
The Defendant denies the allegations containedin paragraphs
and 37, and demands strict proof thereof.
Count III - Breach of the Covenant of Good Faith and Fair Dealing
22.
With regard to the allegation contained in paragraph 38, Defendant restates and re-
alleges herein its answers to the allegation contained in paragraphs 2 through 24 as set forth above.
23.
The Defendant denies the allegations contained in paragraphs 39,40,41,42,43,44and
45, and demands strict proof thereof.
24.
The Defendant denies each and every paragraph ofthe PlaintiffsComplaint not specifically
admitted herein.
25.
The Defendant denies that the Plaintiff is entitled to any of the relief contained in the
wherefb/*e clauses of Counts I, II and III ofthe Complaint and furthermore specifically denies that any such
relief is authorized by the claims alleged by Plaintiff.
26.
The Defendantsdenies the Plaintiffsdemand for attorney'sfees in her PFhere/bre clause of
Count III and moves to strike same as frivolous.
27.
The Defendant has retained the undersigned law firm to defend this action and has agreed
to pay reasonable attorney'sfees and costs for their services.
28.
The Defendant is entitled to the payment of attorney'sfees and costs in this actionpursuant
the Contract attached to the Plaintiffs Complaint and/or Section 57.105, Florida Statutes.
3
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058
CASE NO.: CACE-21-010732
AFFIRMATIVEDEFENSES
First AffirmativeDefense
As and for its First Affirmative Defense, Tidewater Estates asserts that the Plaintiff cannot
maintain the causes of action contained in her Complaint as no legally enforceable contractexists.
The Plaintiff cannot maintain, or prove the requisite legal elements necessary to establish, any
of the alleged causes of action for breach of contract, specific performance or breach of covenant of
good faith and fair dealing. The elements to establish a cause of action for breach of contractare (1) a
valid contract, (2) a material breach; and (3) damages. And, Florida Rule of Civil Procedure 1.130(b)
providesthat "(a)ny exhibit attached to a pleading shall be considereda part thereof for aI1 purposes."
Fla. R. Civ. P. 1.130 (1993)
The Plaintiff premises her claim on the "AS IS" Residential Contractfor Purchase and Sale
("Contract") attached as Exhibit "A" to the Complaint. The Contract is clear that if an executed copy
of the Contract is not signed and deliveredby both parties "on or before April 9,2021" the offer "shall
be deemed withdrawn and the Deposit, if any, shall be returned to Buyer." The Contract attached as
Exhibit "A" was not signed and deliveredto all parties "on or before April 9, 2021". No addendum to
the Contract attached as Exhibit "A" was executed by the parties extending the time for acceptanceof
an offer and/or no counteroffer was accepted (and the Contract contains a "Time is of the essence"
provision).
Tidewater Estates complied with the provision and returned the Deposit to Wiest. As an
executed copy of the Contract was not signed and delivered by both parties "on or before April 9,
2021", the offer was withdrawnand no contract exists for the Plaintiff to maintain a claim.
Second AffirmativeDefense
As and for its Second Affirmative Defense, Tidewater Estates asserts that the Plaintiffhas not
complied with all conditions precedent prior to the filing of the action. The Contract provides that
"Buyerand Sellershall attempt to settle Disputes... through mediation..." excepting only "injunctive
relief."
(emphasis added) The Contract further provides that "Disputes not settled pursuant to
paragraph 16 may be resolved by instituting action in the appropriate court having jurisdiction of the
matter." The Plaintiff'selection to file suit before the parties' participated in the mandatory mediation
as required by the Contract renders this action premature.
4
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 e (954) 587-3058
CASE NO.: CACE-21-010732
Third AffirmativeDefense
As and for its Third Affirmative Defense, Tidewater Estates asserts that the equitable relief
sought by the Plaintiff in Counts II and III are repugnant to her claim for damages in the Complaint
and is thereforebarred by the doctrine ofelection of remedies. The Contract attached as Exhibit "A"
to the Plaintiff's Complaint is clear that the Plaintiff "may seek to recover damages or seek specific
performance." (emphasis added) As such, Counts II and III are without any factual or legal merit.
Fourth AffirmativeDefense
As and for its Fourth Affirmative Defense, Tidewater Estates asserts that the Plaintiff' s
remedies are limited by the terms of the Contract which terms do not entitle the Plaintiff, and in fact
exclude, claims for both damages and specific performance. The Contract attached as Exhibit "A" to
her Complaint precludes the Plaintiff's claims, and relief requested therein, for both damages and
specific performance. The Contractprovides that the Plaintiff"mayseek to recover damages or seek
specific performance." (emphasis addedj In addition, the Plaintiffs election to file suit before the
parties' participated in mediation as required by the Contract renders any default provision or remedy
contained therein unenforceableand inapplicable.
Fifth Affirmative Defense
As and for its FifthAffirmativeDefense, Tidewater Estates assertsthat the Plaintiffis estopped
from pursing the claims contained in her Complaint by her failure to comply with the terms of the
Contract. The Contract provides that "Buyer and Seller shall attempt to settle Disputes ... through
mediation..." excepting only "injunctiverelief." (emphasis added) The Contractfurther providesthat
"Disputes not settled pursuant to paragraph 16 may be resolved by instituting action in the appropriate
court having jurisdictionofthe matter." In this case, the Plaintiff electedto file suit before the parties'
participated in the mandatory mediation contrary to the Contract, and as such, is estopped from
claiming reliefunder the default provision.
Sixth Affirmative Defense
As and for its Sixth AffirmativeDefense, Tidewater Estates assertsthat the Plaintiffis estopped
from pursuing and has waived her claims for specific performance and breach of covenant of good
faith and fair dealing by her acceptance of the return of the Deposit from Tidewater Estates. The
Contract is clear that "... Buyermay electto receive return of Buyer's Deposit without thereby waiving
an action for damages resulting from the Seller's breach...". The Plaintiff's election to accept the
5
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64TH AVENUE, DAVIE, FLORIDA 33314 0 (954) 587-3058
CASE NO.: CACE-21-010732
return of the Deposit from Seller results in a waiver of her claims for both specific performance and
breach of covenant of good faith and fair dealing.
Seventh AffirmativeDefense
As and for its Seventh AffirmativeDefense, TidewaterEstates asserts that the Plaintiff is not
entitled to bring a claim for breach of covenant of good faith and fair dealing. The Contract only
entitles the Plaintiff to allege a claim for "damages" or "seek specific performance" (in those certain
circumstancesset forth in the Contract). The Contract does not entitle the Plaintiffto allege any other
equity claims, including but not limited to, breach of covenant of good faith and fair dealing. As such,
Count III is without any factual or legal merit.
Eighth AffirmativeDefense
As and for its Eighth Affirmative Defense, Tidewater Estates asserts that the Plaintiff is
estopped from pursuing the alleged claims by her failure of acceptance ofany counteroffer.
Ninth Affirmative Defense
As and for its Ninth Affirmative Defense, Tidewater Estates asserts that the Plaintiff cannot
maintain a cause of action for breach of covenant of good faith and fair dealing in Count III of her
Complaint against Defendant as the Plaintiff has not alleged the breach of an express term of the
contract.
Under Florida law, a claim for breach of covenant of good faith and fair dealing cannot be
maintained absent an allegation that an express term of the contract has been breached. Insurance
Conceptsand Design, Inc. v. Healthplan Services, Inc.,785So.2d 1232, 1234 (Fla. fh DCA 2001) The
duty of good faith does not attach until the plaintiff can establish a specific contractual obligation. Id
at 1235 And, the covenant of good faith cannot be used to vary terms of an express contract. Cio' of
Riviera Beachv. John's Towing, 691 So.2d 519, 521 (Fla. 4'.Ih DCA 1997)
Here, the Plaintiff cannot allege an express contract term as the Contract unambiguously
providesthat the "offer shall deemed withdrawn and the Deposit, if any, shall be returned to Buyer" in
the event the Contract is not signed and delivered to all parties "on or before April 9, 2021". The
Contract attached as Exhibit "A" was not signed and delivered to all parties "on or before April 9,
2021". No addendum to the Contract attached as Exhibit "A" was executed by the parties extending
the time for acceptance of an offer and/or no counterofferwas accepted (and the Contract contains a
"Time is of the essence" provision).
6
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64TH AVENUE, DAVIE, FLORIDA 33314 e (954) 587-3058
CASE NO.: CACE-21-010732
Tidewater Estates complied with the provision and returned the Deposit to Wiest, as an
executed copy of the Contract was not signed and delivered by both parties "on or before April 9,
2021", and accordingly,the provision provided the offer was "deemed withdrawn."
Tenth AffirmativeDefense
As and for its Tenth Affirmative Defense, Tidewater Estates asserts that the Plaintiffis barred
by the doctrine of equitableestoppel from maintainingthe claims contained in her Complaint. By her
Complaint, the Plaintiff seeks to obtain a cooperative parcel from Tidewater Estates without paying the
consideration or fair consideration for the parcel to the detriment of the existing shareholders of the
community.
Eleventh Affirmative Defense
As and for its Eleventh Affirmative Defense, Tidewater Estates asserts that the Plaintiff is
barred by the doctrine of unclean hands from maintaining the claims contained in her Complaint. By
her Complaint, the Plaintiff seeks to obtain a cooperative parcel from Tidewater Estates without paying
consideration or fair consideration for the parcel to the detriment of the existing shareholders of the
comrnunity.
Twelfth AffirmativeDefense
As and for its Twelfth AffirmativeDefense, TidewaterEstates asserts that the Plaintiff seeks
relief in the wherefbre clauses of her Complaint which are not authorized by the Contract attached as
Exhibit "A" and/or the law, including the Plaintiffclaims an entitlementto attorney's fees in Count III
when no such entitlementexists under law.
WHEREFORE, Defendant, TIDEWATER ESTATES CO-OP, INC., respectfully request that
judgment be entered in its favor and against Plaintiff, awarding Tidewater Estates its reasonable
attorney's fees and costs pursuantthe Contractattached to the Plaintiff's Complaint and/or Section 57.105,
Florida Statutes,and for such other and further relief that this Court deems just and proper.
7
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058
CASE NO.: CACE-21-010732
DEMAND FOR JURY TRIAL
Defendant, TIDEWATER ESTATES CO-OP, INC., demands a jury trial in this matter.
HINDEN, McLEAN & ARBEITER, P.A.
Attorneys for TidewaterEstates Co-Op, Inc.
4430 S.W. 64th Avenue
Davie, FL 33314
Tel: (954) 587-3058 / Fax: (954) 587-1770
PrimaryEmail: smclean@lawhma.com
Secondary Email:
By: /s/ Suzanne M. McLean
Suzanne M. McLean
Florida Bar No.: 987700
CERTIFICATEOF SERVICE
I HEREBY CERTIFY that a true and correct copy ofthe foregoingwas served via an automatic
e-mail
generated by the Florida Courts E-Filing Portal to Andrew M. Dector, Esq.,
Shapiro, Blasi & Wasserman, P.A., 7777
Glades Road, Suite 400, Boca Raton, FL 33434-4193 this 10tn
ith
day of September, 2021.
By: ls/ Suzanne M. McLean
Suzanne M. McLean
Florida Bar No. 987700
8
HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION
4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058
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Filing # 134357666 E-Filed 09/10/2021 12:35:48 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA SHARON WIEST, an individual, CASE NO.: CACE-21-010732 Plaintiff, V. TIDEWATER ESTATES CO-OP, INC., a Florida not-for-profitcorporation, Defendant. i ANSWER AND AFFIRMATIVEDEFENSES TO PLAINTIFF'SCOMPLAINT Defendant, TIDEWATER ESTATES CO-OP, INC. (hereinafter, "Tidewater Estates"), by and through its undersigned counsel, hereby files its Answer and Affirmative Defenses to Plaintiffs Complaint. In support, Tidewater Estates states as follows: ANSWER Parties, Jurisdiction and Venue 1. The Defendantis without sufficient knowledge to admitor deny the allegation contained in paragraph 1, and accordingly, denies same and demands strict proofthereof. 2. The Defendant admits the allegations contained in paragraphs 2 and 3. 3. With regard to the allegations contained in paragraph 4, Defendant admits that it conducts business in Broward County. The Defendant denies the remainder of the allegations containedin paragraph 4. 4. The Defendant denies the allegations contained in paragraph 5. 5. The Defendant is without sufficient knowledge to admit or deny the allegation contained in paragraph 6, and accordingly, denies same and demands strictproofthereof. General Allegations 6. The Defendant denies the allegations contained in paragraph 7 based on wordingand/or language contained therein. 7. With regard to the allegation contained in paragraph 8, the Defendant admits that the Plaintiffis a Chapter 723 tenant of a lot in the TidewaterEstates community (and not the cooperative HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64TH AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058 *** FILED: BROWARDCOUNTY, FL BRENDA D. FORMAN, CLERK 09/10/2021 12:35:48 PM.**** CASE NO.: CACE-21-010732 parcel that is the subject of this court action). The Defendant denies the remainder of the allegations contained in paragraph 8 based on wording and/or language (and ambiguity) containedtherein. 8. With regard to the allegations contained in paragraph 9, the Defendant is without sufficient knowledge to admit or deny the allegation contained therein that the Plaintiff"desired to purchase'. '.'a share", and accordingly, denies same and demands strict proof thereof. The Defendant denies the remainder of the allegations contained in paragraph 9 based on wording and/or language (and ambiguity) contained therein, including but not limited to, the Plaintiff fails to identity the cooperative parcel in the Tidewater community for which the allegation relates to (and only states "share"). 9. The Defendant denies the allegations contained in paragraphs 10 and 11 Gee alsopara. 8 above). 10. With regard to the allegations contained in paragraph 12, the Defendant is without sufficient knowledgeto admit or deny the allegations relating to alleged conduct by the Plaintiff, and accordingly, denies same and demands strict proof thereof. 11. With regard to the allegations contained in paragraph 13, the Defendant is without sufficientknowledgeto admit or deny the allegations relating to alleged conduct by the Plaintiff, and accordingly, denies same and demands strict proofthereof. 12. The Defendant denies the allegations contained in paragraphs 14,15 and 16. 13. With regard to the allegations contained in paragraphs 17 and 18, the Defendant admits a communicationbetween the Defendant's counsel and the Plaintiffbut denies the allegations as to the contents of that communication. 14. The Defendant denies the allegations contained in paragraph 19. 15. The Defendant is without sufficient knowledge to admit or deny the allegations contained in paragraph 20, and accordingly, denies same and demands strict proof thereof. The Defendant admits receipt of the letter attached as Exhibit "B". 16. With regard to the allegations contained in paragraph 21, the Defendant admits the forwarding of a May 18, 2021, letter to counsel for the Plaintiff. The Defendant denies the remainder of the allegations of the paragraph as it relates the Plaintiff's characterization of the letter, and furthermore states that the letter speaks for itself. 17. The Defendant denies the allegations contained in paragraphs 22,23 and 24. 2 HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64' 'TH AVENUE, DAVIE, FLORIDA 33314 I (954) 587-3058 CASE NO.: CACE-21-010732 Count I - Breach of Contract 18. With regard to the allegation contained in paragraph 25, Defendant restates and re- alleges herein its answers to the allegations contained in paragraphs 2 through24 as set forth above. 19. The Defendant denies the allegations contained in paragraphs 26, 27 and 28, and demands strictproofthereof. Count II - Specific Performance 20. With regard to the allegation contained in paragraph 29, Defendant restates and re- alleges herein its answersto the allegations contained in paragraphs 2 through 24 as set forth above. 21. The Defendant denies the allegations containedin paragraphs and 37, and demands strict proof thereof. Count III - Breach of the Covenant of Good Faith and Fair Dealing 22. With regard to the allegation contained in paragraph 38, Defendant restates and re- alleges herein its answers to the allegation contained in paragraphs 2 through 24 as set forth above. 23. The Defendant denies the allegations contained in paragraphs 39,40,41,42,43,44and 45, and demands strict proof thereof. 24. The Defendant denies each and every paragraph ofthe PlaintiffsComplaint not specifically admitted herein. 25. The Defendant denies that the Plaintiff is entitled to any of the relief contained in the wherefb/*e clauses of Counts I, II and III ofthe Complaint and furthermore specifically denies that any such relief is authorized by the claims alleged by Plaintiff. 26. The Defendantsdenies the Plaintiffsdemand for attorney'sfees in her PFhere/bre clause of Count III and moves to strike same as frivolous. 27. The Defendant has retained the undersigned law firm to defend this action and has agreed to pay reasonable attorney'sfees and costs for their services. 28. The Defendant is entitled to the payment of attorney'sfees and costs in this actionpursuant the Contract attached to the Plaintiffs Complaint and/or Section 57.105, Florida Statutes. 3 HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058 CASE NO.: CACE-21-010732 AFFIRMATIVEDEFENSES First AffirmativeDefense As and for its First Affirmative Defense, Tidewater Estates asserts that the Plaintiff cannot maintain the causes of action contained in her Complaint as no legally enforceable contractexists. The Plaintiff cannot maintain, or prove the requisite legal elements necessary to establish, any of the alleged causes of action for breach of contract, specific performance or breach of covenant of good faith and fair dealing. The elements to establish a cause of action for breach of contractare (1) a valid contract, (2) a material breach; and (3) damages. And, Florida Rule of Civil Procedure 1.130(b) providesthat "(a)ny exhibit attached to a pleading shall be considereda part thereof for aI1 purposes." Fla. R. Civ. P. 1.130 (1993) The Plaintiff premises her claim on the "AS IS" Residential Contractfor Purchase and Sale ("Contract") attached as Exhibit "A" to the Complaint. The Contract is clear that if an executed copy of the Contract is not signed and deliveredby both parties "on or before April 9,2021" the offer "shall be deemed withdrawn and the Deposit, if any, shall be returned to Buyer." The Contract attached as Exhibit "A" was not signed and deliveredto all parties "on or before April 9, 2021". No addendum to the Contract attached as Exhibit "A" was executed by the parties extending the time for acceptanceof an offer and/or no counteroffer was accepted (and the Contract contains a "Time is of the essence" provision). Tidewater Estates complied with the provision and returned the Deposit to Wiest. As an executed copy of the Contract was not signed and delivered by both parties "on or before April 9, 2021", the offer was withdrawnand no contract exists for the Plaintiff to maintain a claim. Second AffirmativeDefense As and for its Second Affirmative Defense, Tidewater Estates asserts that the Plaintiffhas not complied with all conditions precedent prior to the filing of the action. The Contract provides that "Buyerand Sellershall attempt to settle Disputes... through mediation..." excepting only "injunctive relief." (emphasis added) The Contract further provides that "Disputes not settled pursuant to paragraph 16 may be resolved by instituting action in the appropriate court having jurisdiction of the matter." The Plaintiff'selection to file suit before the parties' participated in the mandatory mediation as required by the Contract renders this action premature. 4 HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 e (954) 587-3058 CASE NO.: CACE-21-010732 Third AffirmativeDefense As and for its Third Affirmative Defense, Tidewater Estates asserts that the equitable relief sought by the Plaintiff in Counts II and III are repugnant to her claim for damages in the Complaint and is thereforebarred by the doctrine ofelection of remedies. The Contract attached as Exhibit "A" to the Plaintiff's Complaint is clear that the Plaintiff "may seek to recover damages or seek specific performance." (emphasis added) As such, Counts II and III are without any factual or legal merit. Fourth AffirmativeDefense As and for its Fourth Affirmative Defense, Tidewater Estates asserts that the Plaintiff' s remedies are limited by the terms of the Contract which terms do not entitle the Plaintiff, and in fact exclude, claims for both damages and specific performance. The Contract attached as Exhibit "A" to her Complaint precludes the Plaintiff's claims, and relief requested therein, for both damages and specific performance. The Contractprovides that the Plaintiff"mayseek to recover damages or seek specific performance." (emphasis addedj In addition, the Plaintiffs election to file suit before the parties' participated in mediation as required by the Contract renders any default provision or remedy contained therein unenforceableand inapplicable. Fifth Affirmative Defense As and for its FifthAffirmativeDefense, Tidewater Estates assertsthat the Plaintiffis estopped from pursing the claims contained in her Complaint by her failure to comply with the terms of the Contract. The Contract provides that "Buyer and Seller shall attempt to settle Disputes ... through mediation..." excepting only "injunctiverelief." (emphasis added) The Contractfurther providesthat "Disputes not settled pursuant to paragraph 16 may be resolved by instituting action in the appropriate court having jurisdictionofthe matter." In this case, the Plaintiff electedto file suit before the parties' participated in the mandatory mediation contrary to the Contract, and as such, is estopped from claiming reliefunder the default provision. Sixth Affirmative Defense As and for its Sixth AffirmativeDefense, Tidewater Estates assertsthat the Plaintiffis estopped from pursuing and has waived her claims for specific performance and breach of covenant of good faith and fair dealing by her acceptance of the return of the Deposit from Tidewater Estates. The Contract is clear that "... Buyermay electto receive return of Buyer's Deposit without thereby waiving an action for damages resulting from the Seller's breach...". The Plaintiff's election to accept the 5 HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64TH AVENUE, DAVIE, FLORIDA 33314 0 (954) 587-3058 CASE NO.: CACE-21-010732 return of the Deposit from Seller results in a waiver of her claims for both specific performance and breach of covenant of good faith and fair dealing. Seventh AffirmativeDefense As and for its Seventh AffirmativeDefense, TidewaterEstates asserts that the Plaintiff is not entitled to bring a claim for breach of covenant of good faith and fair dealing. The Contract only entitles the Plaintiff to allege a claim for "damages" or "seek specific performance" (in those certain circumstancesset forth in the Contract). The Contract does not entitle the Plaintiffto allege any other equity claims, including but not limited to, breach of covenant of good faith and fair dealing. As such, Count III is without any factual or legal merit. Eighth AffirmativeDefense As and for its Eighth Affirmative Defense, Tidewater Estates asserts that the Plaintiff is estopped from pursuing the alleged claims by her failure of acceptance ofany counteroffer. Ninth Affirmative Defense As and for its Ninth Affirmative Defense, Tidewater Estates asserts that the Plaintiff cannot maintain a cause of action for breach of covenant of good faith and fair dealing in Count III of her Complaint against Defendant as the Plaintiff has not alleged the breach of an express term of the contract. Under Florida law, a claim for breach of covenant of good faith and fair dealing cannot be maintained absent an allegation that an express term of the contract has been breached. Insurance Conceptsand Design, Inc. v. Healthplan Services, Inc.,785So.2d 1232, 1234 (Fla. fh DCA 2001) The duty of good faith does not attach until the plaintiff can establish a specific contractual obligation. Id at 1235 And, the covenant of good faith cannot be used to vary terms of an express contract. Cio' of Riviera Beachv. John's Towing, 691 So.2d 519, 521 (Fla. 4'.Ih DCA 1997) Here, the Plaintiff cannot allege an express contract term as the Contract unambiguously providesthat the "offer shall deemed withdrawn and the Deposit, if any, shall be returned to Buyer" in the event the Contract is not signed and delivered to all parties "on or before April 9, 2021". The Contract attached as Exhibit "A" was not signed and delivered to all parties "on or before April 9, 2021". No addendum to the Contract attached as Exhibit "A" was executed by the parties extending the time for acceptance of an offer and/or no counterofferwas accepted (and the Contract contains a "Time is of the essence" provision). 6 HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64TH AVENUE, DAVIE, FLORIDA 33314 e (954) 587-3058 CASE NO.: CACE-21-010732 Tidewater Estates complied with the provision and returned the Deposit to Wiest, as an executed copy of the Contract was not signed and delivered by both parties "on or before April 9, 2021", and accordingly,the provision provided the offer was "deemed withdrawn." Tenth AffirmativeDefense As and for its Tenth Affirmative Defense, Tidewater Estates asserts that the Plaintiffis barred by the doctrine of equitableestoppel from maintainingthe claims contained in her Complaint. By her Complaint, the Plaintiff seeks to obtain a cooperative parcel from Tidewater Estates without paying the consideration or fair consideration for the parcel to the detriment of the existing shareholders of the community. Eleventh Affirmative Defense As and for its Eleventh Affirmative Defense, Tidewater Estates asserts that the Plaintiff is barred by the doctrine of unclean hands from maintaining the claims contained in her Complaint. By her Complaint, the Plaintiff seeks to obtain a cooperative parcel from Tidewater Estates without paying consideration or fair consideration for the parcel to the detriment of the existing shareholders of the comrnunity. Twelfth AffirmativeDefense As and for its Twelfth AffirmativeDefense, TidewaterEstates asserts that the Plaintiff seeks relief in the wherefbre clauses of her Complaint which are not authorized by the Contract attached as Exhibit "A" and/or the law, including the Plaintiffclaims an entitlementto attorney's fees in Count III when no such entitlementexists under law. WHEREFORE, Defendant, TIDEWATER ESTATES CO-OP, INC., respectfully request that judgment be entered in its favor and against Plaintiff, awarding Tidewater Estates its reasonable attorney's fees and costs pursuantthe Contractattached to the Plaintiff's Complaint and/or Section 57.105, Florida Statutes,and for such other and further relief that this Court deems just and proper. 7 HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058 CASE NO.: CACE-21-010732 DEMAND FOR JURY TRIAL Defendant, TIDEWATER ESTATES CO-OP, INC., demands a jury trial in this matter. HINDEN, McLEAN & ARBEITER, P.A. Attorneys for TidewaterEstates Co-Op, Inc. 4430 S.W. 64th Avenue Davie, FL 33314 Tel: (954) 587-3058 / Fax: (954) 587-1770 PrimaryEmail: smclean@lawhma.com Secondary Email: By: /s/ Suzanne M. McLean Suzanne M. McLean Florida Bar No.: 987700 CERTIFICATEOF SERVICE I HEREBY CERTIFY that a true and correct copy ofthe foregoingwas served via an automatic e-mail generated by the Florida Courts E-Filing Portal to Andrew M. Dector, Esq., Shapiro, Blasi & Wasserman, P.A., 7777 Glades Road, Suite 400, Boca Raton, FL 33434-4193 this 10tn ith day of September, 2021. By: ls/ Suzanne M. McLean Suzanne M. McLean Florida Bar No. 987700 8 HINDEN McLEAN & ARBEITER, A PROFESSIONALASSOCIATION 4430 SOUTHWEST64H AVENUE, DAVIE, FLORIDA 33314 , (954) 587-3058