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Filing # 66176975 E-Filed 01/05/2018 03:33:01 PM
IN THE CIRCUIT COURT FOR COLLIER
COUNTY, FLORIDA
CIVIL ACTION
CASE NO. 16-CA-002266
BARBARA ANN EVANS,
Plaintiff,
vs.
KENT M. AMO, and
KENT M. AMO, P.A., a
Professional Services Corporation
Defendants.
/
KENT M. AMO AND KENT M. AMO P.A.’S ANSWER, AFFIRMATIVE DEFENSES
AND MOTION TO DISMISS
Defendants Kent N. Amo and Kent M. Amo P.A. (collectively “Defendant”) by and
through the undersigned attorneys, and pursuant to Rule 1.140, Fla. R. Civ. P., hereby files their
Answer and Affirmative Defenses to Count I of Plaintiffs Amended Complaint, and moves to
dismiss the Count II of the Amended Complaint for failure to state a cause of action. Except as
expressly admitted herein, all allegations are denied.
Count I - Professional Negligence
1. This is an action for damages that exceed $15,000.00 exclusive of interest, costs
and attorney's fees.
ANSWER: Admitted for jurisdictional purposes only.
2. At all times mentioned Defendant Amo was and is licensed to provide legal
services in the State of Florida.
4G KLEIN GLASSER
PARK & LOWE P.L.
FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 01/08/2018 08:51:49 AMCase Number: 16-CA-002266
Page 2
ANSWER: Admitted.
3. At all times mentioned defendant KMA, P.A. was and is a professional services
corporation existing under the laws of the State of Florida through which defendant Amo
provides legal services.
ANSWER: Admitted.
4. In 2013 Plaintiff was named as the defendant in a lawsuit filed in the Circuit
Court of the Twentieth Judicial Circuit, in and for Collier County, Florida, by Brian McMahon.
The case was identified as McMahon v. Evans, Case No. 2013-CA-I 150.
ANSWER: Admitted.
5. On or about April 30, 2013 Plaintiff employed defendants to represent her in said
lawsuit. The scope and terms of representation were agreed to in writing, a copy being attached.
ANSWER: Admitted.
6. As the Plaintiffs attorney in the case defendant Amo had a duty to not undertake
tepresentation unless he had sufficient experience to try the case to a jury; to thoroughly
investigate the merits of the claims raised by the adverse party; to challenge the sufficiency of
the adverse party's claims; to seek dissolution of the adverse party's notice of lis pendens that had
been filed in the legal action and to recommend to the Plaintiff that she not agree to pay
$80,000.00 to the adverse party in settlement of his claims.
ANSWER: Defendant Amo admits he had certain duties with respect to his representation
of the Plaintiff. As to the remainder of the allegations, denied.
7. Defendant Amo neglected said duties causing Plaintiff to pay the adverse party in
said legal action $80,000.00.
ANSWER: Denied.
KLEIN GLASSER
PARK & LOWE P.L.Case Number: 16-CA-002266
Page 3
8. Defendant KMA, P.A. was defendant Amo's employer during the latter's
representation of the Plaintiff. KMA, P.A. has the legal responsibility for the damages sustained
by the Plaintiff.
ANSWER: Admitted that KMA, P.A. was Amo’s employer during his representation of
the Plaintiff.
9. Plaintiff is obligated to pay her attorney a reasonable fee for his services and seek
tecovery of same in this action.
ANSWER: Denied as phrased.
Motion to Dismiss Count II — Accounting
This Court previously granted Defendants’ Motion to Dismiss Plaintiff's Accounting
claim based on controlling case law, but allowed Plaintiff ten (10) days to amend the Complaint.
Plaintiff has since filed an Amended Complaint; however, the amended claim for Accounting
contains no additional allegations which would give rise to a claim for equitable accounting. As
outlined in Bankers Trust Realty, Inc. v. Kluger, 672 So.2d 897, 898 (Fla. 3d 1996), to state a
claim for equitable accounting, “the Plaintiff must allege that ‘the contract demands between
litigants involve extensive or complicated documents and it is not clear that the remedy at law is
as full, adequate and expeditious as it is in equity.””! The Bankers court held that the Plaintiff had
failed to set forth evidentiary facts showing complexity or inadequacy of a legal remedy.
Similarly, as previously argued and granted, such a claim is clearly inappropriate here,
given the short term nature of the representation, a clear and unambiguous fee agreement, and
the fact that the contract demands as between the parties are not even remotely complicated.
Plaintiff's Amended Complaint contains no factual support tending to show that the relationship
KLEIN GLASSER
PARK & LOWE P.L.Case Number: 16-CA-002266
Page 4
was particularly complex, nor that there is no adequate remedy at law, despite counsel being
given a second bite at the proverbial apple. As such, Count II should be dismissed with
prejudice.
AFFIRMATIVE DEFENSES
Defendants hereby assert the following affirmative defenses in further response to
Plaintiff's Complaint:
First Affirmative Defense
Plaintiff has failed to state a claim upon which relief can be granted.
Second Affirmative Defense
Any damages suffered by the Plaintiff were not the result of the alleged negligence of the
Defendant, but were instead the result of an intervening/superseding cause.
Third Affirmative Defense
Plaintiff's damages, in whole or in part, if any, are a result of her own negligence.
Fourth Affirmative Defense
Plaintiff failed to mitigate her damages, and therefore, cannot recover for any damages
that were sustained as a result of her failure to mitigate.
Fifth Affirmative Defense
Defendants are only responsible for their relative degree(s) of culpability as determined
by the trier of fact pursuant to the Fabre Doctrine and Fla. Stat. 768.81. Accordingly,
Defendants reserve the right to place on the verdict form any and all third parties, including
third parties whose identities are not yet known, but will be disclosed in accordance with
Florida law to provide Plaintiff with satisfactory notice of same.
KLEIN GLASSER
PARK & LOWE P.L.Case Number: 16-CA-002266
Page 5
Sixth Affirmative Defense
Plaintiff cannot satisfy the damages element of a professional malpractice, professional
negligence, or breach of fiduciary duty claim, as the claimed damages are wholly speculative
and not subject to any concrete assessment.
Seventh Affirmative Defense
Defendants are immune from any and all claims of liability stemming from their
representation of Plaintiff based on the doctrine of judgmental immunity.
Eighth Affirmative Defense
The Agreements governing the transactions are clear and unambiguous and were
negotiated by all parties thereto. To the extent that Plaintiff is dissatisfied with her obligations
and benefits pursuant to the Agreements, Plaintiff cannot now challenge her own determination
to enter into the subject Agreements through claims of negligence and breach of fiduciary duty
against her former counsel. These Agreements include, but are not limited to, Plaintiffs
tepresentation agreement with Defendants, the Mediation and/or Settlement Agreement entered.
into between Plaintiff and Mr. McMahon in the underlying lawsuit, and Plaintiffs representation
agreement with her current counsel.
Reservation
Defendants reserve the right to add additional defenses as the discovery in this matter
progresses.
Demand for Trial by Jury
Defendants demand judgment in their favor and against the Plaintiff herein, together with
costs. Defendants further demand trial by jury of all issues so triable as a matter of right.
KLEIN GLASSER
PARK & LOWE P.L.Case Number: 16-CA-002266
Page 6
CERTIFICATE OF SERVICE
WE HEREBY certify that a true and correct copy of the foregoing was filed on this 5"
day of January 2018 through the E-Portal which will submit an electronic copy to: Raymond
Bass, Jr., Esq. @ service.basslawoffice@comcast.net and Jessica.basslawoffice@comcast.net.
KLEIN GLASSER PARK
& LOWE P.L.
Attorney for Defendant
9130 S. Dadeland Blvd.
Suite 2000
Miami, Florida 33156
Tel: (305) 670-3700
Fax: (305) 670-8592
kleinr@kgplp.com;
By: /s/ Robert M. Klein
ROBERT M. KLEIN
Fla. Bar No: 230022
NICOLE REID
Fla. Bar No: 0096109
‘Citing F.A. Chastain Constr., Inc. v. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962).
KLEIN GLASSER
PARK & LOWE P.L.
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Filing # 66176975 E-Filed 01/05/2018 03:33:01 PM IN THE CIRCUIT COURT FOR COLLIER COUNTY, FLORIDA CIVIL ACTION CASE NO. 16-CA-002266 BARBARA ANN EVANS, Plaintiff, vs. KENT M. AMO, and KENT M. AMO, P.A., a Professional Services Corporation Defendants. / KENT M. AMO AND KENT M. AMO P.A.’S ANSWER, AFFIRMATIVE DEFENSES AND MOTION TO DISMISS Defendants Kent N. Amo and Kent M. Amo P.A. (collectively “Defendant”) by and through the undersigned attorneys, and pursuant to Rule 1.140, Fla. R. Civ. P., hereby files their Answer and Affirmative Defenses to Count I of Plaintiffs Amended Complaint, and moves to dismiss the Count II of the Amended Complaint for failure to state a cause of action. Except as expressly admitted herein, all allegations are denied. Count I - Professional Negligence 1. This is an action for damages that exceed $15,000.00 exclusive of interest, costs and attorney's fees. ANSWER: Admitted for jurisdictional purposes only. 2. At all times mentioned Defendant Amo was and is licensed to provide legal services in the State of Florida. 4G KLEIN GLASSER PARK & LOWE P.L. FILED: COLLIER COUNTY, DWIGHT E. BROCK, CLERK, 01/08/2018 08:51:49 AMCase Number: 16-CA-002266 Page 2 ANSWER: Admitted. 3. At all times mentioned defendant KMA, P.A. was and is a professional services corporation existing under the laws of the State of Florida through which defendant Amo provides legal services. ANSWER: Admitted. 4. In 2013 Plaintiff was named as the defendant in a lawsuit filed in the Circuit Court of the Twentieth Judicial Circuit, in and for Collier County, Florida, by Brian McMahon. The case was identified as McMahon v. Evans, Case No. 2013-CA-I 150. ANSWER: Admitted. 5. On or about April 30, 2013 Plaintiff employed defendants to represent her in said lawsuit. The scope and terms of representation were agreed to in writing, a copy being attached. ANSWER: Admitted. 6. As the Plaintiffs attorney in the case defendant Amo had a duty to not undertake tepresentation unless he had sufficient experience to try the case to a jury; to thoroughly investigate the merits of the claims raised by the adverse party; to challenge the sufficiency of the adverse party's claims; to seek dissolution of the adverse party's notice of lis pendens that had been filed in the legal action and to recommend to the Plaintiff that she not agree to pay $80,000.00 to the adverse party in settlement of his claims. ANSWER: Defendant Amo admits he had certain duties with respect to his representation of the Plaintiff. As to the remainder of the allegations, denied. 7. Defendant Amo neglected said duties causing Plaintiff to pay the adverse party in said legal action $80,000.00. ANSWER: Denied. KLEIN GLASSER PARK & LOWE P.L.Case Number: 16-CA-002266 Page 3 8. Defendant KMA, P.A. was defendant Amo's employer during the latter's representation of the Plaintiff. KMA, P.A. has the legal responsibility for the damages sustained by the Plaintiff. ANSWER: Admitted that KMA, P.A. was Amo’s employer during his representation of the Plaintiff. 9. Plaintiff is obligated to pay her attorney a reasonable fee for his services and seek tecovery of same in this action. ANSWER: Denied as phrased. Motion to Dismiss Count II — Accounting This Court previously granted Defendants’ Motion to Dismiss Plaintiff's Accounting claim based on controlling case law, but allowed Plaintiff ten (10) days to amend the Complaint. Plaintiff has since filed an Amended Complaint; however, the amended claim for Accounting contains no additional allegations which would give rise to a claim for equitable accounting. As outlined in Bankers Trust Realty, Inc. v. Kluger, 672 So.2d 897, 898 (Fla. 3d 1996), to state a claim for equitable accounting, “the Plaintiff must allege that ‘the contract demands between litigants involve extensive or complicated documents and it is not clear that the remedy at law is as full, adequate and expeditious as it is in equity.””! The Bankers court held that the Plaintiff had failed to set forth evidentiary facts showing complexity or inadequacy of a legal remedy. Similarly, as previously argued and granted, such a claim is clearly inappropriate here, given the short term nature of the representation, a clear and unambiguous fee agreement, and the fact that the contract demands as between the parties are not even remotely complicated. Plaintiff's Amended Complaint contains no factual support tending to show that the relationship KLEIN GLASSER PARK & LOWE P.L.Case Number: 16-CA-002266 Page 4 was particularly complex, nor that there is no adequate remedy at law, despite counsel being given a second bite at the proverbial apple. As such, Count II should be dismissed with prejudice. AFFIRMATIVE DEFENSES Defendants hereby assert the following affirmative defenses in further response to Plaintiff's Complaint: First Affirmative Defense Plaintiff has failed to state a claim upon which relief can be granted. Second Affirmative Defense Any damages suffered by the Plaintiff were not the result of the alleged negligence of the Defendant, but were instead the result of an intervening/superseding cause. Third Affirmative Defense Plaintiff's damages, in whole or in part, if any, are a result of her own negligence. Fourth Affirmative Defense Plaintiff failed to mitigate her damages, and therefore, cannot recover for any damages that were sustained as a result of her failure to mitigate. Fifth Affirmative Defense Defendants are only responsible for their relative degree(s) of culpability as determined by the trier of fact pursuant to the Fabre Doctrine and Fla. Stat. 768.81. Accordingly, Defendants reserve the right to place on the verdict form any and all third parties, including third parties whose identities are not yet known, but will be disclosed in accordance with Florida law to provide Plaintiff with satisfactory notice of same. KLEIN GLASSER PARK & LOWE P.L.Case Number: 16-CA-002266 Page 5 Sixth Affirmative Defense Plaintiff cannot satisfy the damages element of a professional malpractice, professional negligence, or breach of fiduciary duty claim, as the claimed damages are wholly speculative and not subject to any concrete assessment. Seventh Affirmative Defense Defendants are immune from any and all claims of liability stemming from their representation of Plaintiff based on the doctrine of judgmental immunity. Eighth Affirmative Defense The Agreements governing the transactions are clear and unambiguous and were negotiated by all parties thereto. To the extent that Plaintiff is dissatisfied with her obligations and benefits pursuant to the Agreements, Plaintiff cannot now challenge her own determination to enter into the subject Agreements through claims of negligence and breach of fiduciary duty against her former counsel. These Agreements include, but are not limited to, Plaintiffs tepresentation agreement with Defendants, the Mediation and/or Settlement Agreement entered. into between Plaintiff and Mr. McMahon in the underlying lawsuit, and Plaintiffs representation agreement with her current counsel. Reservation Defendants reserve the right to add additional defenses as the discovery in this matter progresses. Demand for Trial by Jury Defendants demand judgment in their favor and against the Plaintiff herein, together with costs. Defendants further demand trial by jury of all issues so triable as a matter of right. KLEIN GLASSER PARK & LOWE P.L.Case Number: 16-CA-002266 Page 6 CERTIFICATE OF SERVICE WE HEREBY certify that a true and correct copy of the foregoing was filed on this 5" day of January 2018 through the E-Portal which will submit an electronic copy to: Raymond Bass, Jr., Esq. @ service.basslawoffice@comcast.net and Jessica.basslawoffice@comcast.net. KLEIN GLASSER PARK & LOWE P.L. Attorney for Defendant 9130 S. Dadeland Blvd. Suite 2000 Miami, Florida 33156 Tel: (305) 670-3700 Fax: (305) 670-8592 kleinr@kgplp.com; By: /s/ Robert M. Klein ROBERT M. KLEIN Fla. Bar No: 230022 NICOLE REID Fla. Bar No: 0096109 ‘Citing F.A. Chastain Constr., Inc. v. Pratt, 146 So.2d 910, 913 (Fla. 3d DCA 1962). KLEIN GLASSER PARK & LOWE P.L.