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Filing # 92757256 E-Filed 07/18/2019 10:34:54 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY FLORIDA
CIVIL
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability COmpany
Plaintiff,
Vv.
Case No. 18-CA-2183
BAYSTAR HOLDINGS, LLC, a Florida
Limited Liability Company; KYLE D.
MCLAUGHLIN, and DANAN JON
DELSING,
Defendant(s)
DANAN JON DELSING,
Crossclaim-Plaintiff,
v.
KYLE MCLAUGHLIN,
Crossclaim-Defendant.
/
EXCEPTION TO MAGISTRATE’S REPORT AND RECOMMENDATION
COMES NOW KYLE MCLAUGHLIN by and through the undersigned attorney and
files this exception to the Magistrate’s Report and Recommendation filed on July 3, 2019, stating
as follows in support:
1. A hearing was held before Magistrate Friedman on June 20, 2019, to hear Kyle
McLaughlin’s Motion to Set Aside Default Final Judgment. The Magistrate subsequently entered
a Report and Recommendation that the Motion be denied. The Report is attached as Exhibit 1.
The Magistrate first erred by finding no legal significance in the fact that the
Crossclaim-Plaintiff failed to obtain a Crossclaim summons in this case.
2. Florida Rule of Civ. Pro. 1.070(a) explicitly requires that a summons be issued in the
case: “Upon the commencement of the action, summons or other process authorized by law shall
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/18/2019 10:34:54 AMbe issued forthwith by the clerk or judge...” Rule 1.170 requires that when a party has not
appeared in the case (as was true of Kyle Mclaughlin), a crossclaim must be served “in the
manner provided for service of summons.” The Florida Rules of Civil Procedure Form 1.903
shows what a crossclaim summons should look like.
3. A court does not obtain jurisdiction over a party until sufficient process has been issued
and served on the party. Gilliam v. Smart, 809 So.2d 905 (Fla. 1* DCA, 2002).
4. This Court could not have obtained jurisdiction over Kyle Mclaughlin for the crossclaim
because no process was ever issued.
5. The Magistrate dismisses this glaring failure by the Crossclaim Plaintiff by simply saying
“The execution and filing of the Acceptance and Waiver of Service excuse the absence of any
summons having been issued. No process need be issued by a Clerk of Court if a party accepts
and waived service.” (Report, para. 26).
6. The Magistrate’s conclusion contradicts the Rules of Civil Procedure and case law. In
making his conclusion, the Magistrate does not cite any supporting authority. Moreover, the
Magistrate’s conclusion is illogical because one cannot accept process if no process was issued.
7. Accordingly, and for all the foregoing reasons, the Motion to Set Aside the Default Final
Judgment should have been found to be void for lack of jurisdiction based on the failure of the
Crossclaim Plaintiff to obtain process.
The Magistrate erred in finding the Plaintiff was excused in failing to follow Florida
procedure for waiving service of process.
8. In order to obtain a waiver of service of process, a party must follow Rule 1.070(3) which
has six requirements. There is no question that the Plaintiff did not follow Rule 1.070().
Specifically, the request for acceptance and waiver was not mailed by certified mail; 2) did not
inform the defendant of the consequence of non-compliance and of failure to comply with therequest; 3) did not contain a notice of commencement, and 4) did not provide the Defendant 20
days to respond to the request.
9. As noted by the Second District Court of Appeals “statutes governing service of
process are to be strictly construed and enforced.” Griffith v. Slade, 95 So. 3d 982 (Fla. and
DCA, 2012). In Griffith, the Second DCA explicitly found that the waiver requirements of
1.070(4) must be strictly complied with. /d. at 984.
10. The Magistrate disregarded the Second DCA’s holding by distinguishing between the
underlying facts in Griffith and the instant case. (Report, para. 27). The deficiency in the
Magistrate’s ruling is that the factual distinctions are irrelevant. The holding is that all six
subparts must be strictly followed, and if they are not, the service is defective. It doesn’t matter if
the parties in Griffith failed to comply with Rule 1.070(i) in a different way than the Plaintiff in
the instant case. The fact that the Plaintiff failed to strictly comply with Rule 1.070(i) means his
attempt to obtain service by mail failed according to Griffith.
11. In fact, the Magistrate argued that Rule 1.070(i) didn’t need to be followed because the
Defendant signed an acceptance and waiver. The fallacy of this argument is immediately
apparent. Only by following Rule 1.070(i) could the Plaintiff have properly obtained an
Acceptance and Waiver. The Court cannot rely on a defective Acceptance and Waiver to excuse
failure to follow the Rule required to obtain Acceptance and Waiver.
12. The Defendant’s affidavit with attached communication from the Plaintiff and the
defective acceptance and waiver are attached as Exhibit 2.
13. Moreover, the only document the Defendant accepted was the Crossclaim itself. No
summons was issued or provided to the Defendant, so it’s ridiculous to claim the Defendant
accepted process.14. “Process” refers to the “summons or other process.” Rule 1.070(a). “Service of Process”
requires service of both the summons and the complaint. Fla. 48.031(1)(a). Here, the only
document provided to the Defendant was the complaint. Accordingly, it cannot be said the
Defendant accepted process. Rather, at best it can be said the Defendant accepted and waived
service of the complaint.
15. In fact, the defective Acceptance of Service filed by the Plaintiff states only that the
Defendant “acknowledges receipt of Defendant/Crossclaim-Plaintiff Danan Jon Delsing’s
Answer, Affirmative Defenses and Crossclaim.” It does not say the Defendant accepts service of
the summons, nor does it say the Defendant waives the issuance of a summons. Thus, the
Magistrate grossly erred both in excusing the Plaintiff's failure to comply with Rule 1.070(i) and
finding the Acceptance and Waiver waived service of a summons.
16. Accordingly, the Motion to Set Aside the Default should be granted for want of service
based on the Plaintiffs failure to follow Rule 1.070(i) and serve a summons.
The Magistrate erred by failing to apply a liberal standard to the Defendant’s Motion.
17. This case has not been decided on the merits.
18. “Florida has a long-standing public policy in favor of adjudication of disputes on the
merits wherever possible.” Westgate Miami Beach, Ltd. V. Newport Operating Corp., 55 So.3d
567, 574 (Fla. 2010) (citing North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852-53
(Fla. 1962). As the Supreme Court reiterated in North Shore Hospital, Inc. v. Barber, “if there
by any reasonable doubt in the matter [of vacating a default], it should be resolved in favor
of granting the application and allowing a trial upon the merits of the case.” N. Shore Hosp.,
Inc. v. Barber, 143 So.2d 849, 853 (Fla. 1962).19. The Florida Rules of Civil Procedure dealing with default “should be liberally construed
in favor of deciding cases on the merits.” Makes & Models Magazine, Inc. v. Web Offset Printing
Co., Inc., 13 So. 3d 178, 181 (Fla. 2d DCA 2009). Although “[o]ne of the purposes of a default
is to help speed up an action and thereby prevent a dilatory or procrastinating defendant from
impeding a plaintiff in the establishment of his claim,” the procedure is not intended “to furnish
an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the
difficulty that arises from a contest by the defendant.” Hully v. Hully, 653 So. 2d 1138, 1140
(Fla. 2d DCA 1995).
20. It boggles the mind that the Magistrate did not find that a complete failure to obtain
process as required by the Florida Rules of Civil Procedure or a failure to follow the Rules for
service create at least a “reasonable doubt” as to setting aside the Default Judgment.
21. The Magistrate’s handling of the Motion is backwards. He afforded complete deference
and liberality to the Plaintiff, excusing multiple violations of the rules instead of reviewing the
Defendant’s Motion with liberality and deference.
22. The liberal standard required by the Supreme Court should result in granting the
Defendant’s Motion to Set Aside the Default Judgment.
The Magistrate erred by finding no excusable neglect.
23. The Default Final Judgment should be found to be void based on the two arguments
raised herein: 1) lack of issuance of a summons makes the Judgment void and 2) failure to
strictly follow the Rule on service by mail makes the Judgment void.
24. In addition, the Judgment should be set aside under Rule 1.540 for excusable neglect. The
Magistrate did not address the Defendant’s argument that the complete lack of a summons andthe lack of any notice to the Defendant that a response was required in 20 days makes his neglect
in not filing a response excusable.
25. The Magistrate likewise erred in finding that the Defendant did not act diligently where
the Defendant acted within 9 days to set aside the Default Final Judgment.
WHEREFORE, the Defendant, KYLE MCLAUGHLIN, asks this Court to sustain this
exception and set aside the Default Final Judgment and provide any other relief the Court deems
proper.
/s/ Brantley Oakey
Bar No. 99076
The Law Office of Brantley Oakey
780 5™ Ave. S, Ste. 200
Naples, FL 34102
239-963-2897
boakey@naplesattomey.biz
service@yournaplesattorney.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing has been emailed to
counsel for Plaintiff on this the 18th day of July, 2019.
/s/ Brantley Oakey
Bar No. 99076
The Law Office of Brantley Oakey
780 5" Ave. S, Ste. 200
Naples, FL 34102
239-963-2897
boakey@naplesattomey.biz
service@yournaplesattorney.comFiling # 92079336 E-Filed 07/03/2019 02:23:39 PM ST
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT 1)
IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability Company,
Plaintiff,
vs. CASE NO.:18-218-3CA-EVK
BAYSTAR HOLDINGS, LLC, a Florida Limited
Liability Company; KYLE D. MCLAUGHLIN,
And DANAN JON DELSING,
Defendants.
DANAN JON DELSING,
Crossclaim-Plaintiff,
vs.
KYLE D. MCLAUGHLIN,
Crossclaim-Defendant.
/
REPORT AND RECOMMENDATIONS OF THE MAGISTRATE DENYING
CROSS-CLAIM DEFENDANT MCLAUGHLIN’S
MOTION FOR RELIEF FROM FINAL JUDGMENT
ATTENDANCE:
Plaintiff X__ Attorney for XClaim-Plaintiff
Defendant XX_ Attorneys for X-Claim-Defendant
x Court Reporter ECR Clerk of Court
This cause has come on to be heard before Magistrate David C. Friedman on June
20, 2019, pursuant to the Motion to Vacate Final Judgment (by Cross-Claim Defendant
MCLAUGHLIN). The Magistrate has jurisdiction pursuant to the Florida Rules of Civil
Procedure, 1.490, et seq. The Court finds that an Order of Referral for the matters heard
by the Magistrate was served upon the parties and that no party made a timely objectionto the referral.' This Court being otherwise fully advised, the following Findings of Fact
and Conclusions of Law are made:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
PROCEDURAL HISTORY
1. This action began as a commercial landlord-tenant dispute for eviction and
damages. Defendant Delsing has reached a stipulation with the Plaintiff and
the main cause of action has been dismissed.
2. The Cross-Claim Defendant McLaughlin has filed the Motion for Relief from
a Final Judgment with a supporting affidavit. The Judgment for damages in
favor of Cross-Claim Plaintiff Delsing against McLaughlin was entered on
April 23, 2019. A Default was entered against McLaughlin by the Circuit
Court Judge on November 26, 2018.
3. Plaintiff's complaint was served upon Defendant McLaughlin at 1376
Chesapeake Avenue in Naples on August 7, 2018.
4. On August 23, 2018, Defendant Delsing responded to the Plaintiff's
Complaint and sued McLaughlin in a Cross-Claim.
5. On September 7, 2018, McLaughlin as the Cross-Claim Defendant signed an
Acceptance of Service and Waiver of Service of Process, which was filed on
the same day.
6. On November 20, 2018, Delsing filed a Motion for Judicial Default against
McLaughlin alleging he failed to file any papers and had accepted service.
The certificate of service reflects a copy was mailed to McLaughlin at the
address where he was served initial process. The Order was submitted to
Judge Lauren L. Brodie and was signed and filed on November 26, 2018 and
McLaughlin was included on the certificate of service on the Order Granting
Motion for Judicial Default.
' At the hearing, Delsing did not voice any objection to the Magistrate’s jurisdiction, although he had filed
an Objection on May 17%.10.
11.
12.
13.
14.
On February 20, 2019, Delsing filed a Motion for Final Judgment after
Default against McLaughlin. A copy was mailed to McLaughlin at the
address where he was served initial process.
On March 20, 2019, Delsing filed and served McLaughlin at that same
address with the Notice of Hearing on the Motion. McLaughlin was listed
again in the certificate of service.
The hearing was conducted on March 28, 2019, with no appearance by
McLaughlin and this Court recommended the granting of Delsing’s Motion.
The Order Adopting the Recommendations and entering the Final Judgment
against McLaughlin was signed and filed on April 23, 2019. Both the
Recommended Order and the Order Adopting were copied to both counsel for
Delsing and to McLaughlin.
On May 2, 2019, counsel for McLaughlin filed a Notice of Appearance with
the subject Motion and attachments. On May 3" McLaughlin’s Affidavit in
support of the Motion was filed.
On May 15, 2019, McLaughlin served and filed the Notice of Hearing on the
Motion.
On May 24, 2019, Delsing filed a Response to the Motion for Relief from
Final Judgment.
On June 5, 2019 McLaughlin filed an Answer with Affirmative Defenses to
Delsing’s Cross-Claim. A request for leave of court is not apparent from the
court file.
At the hearing the Court heard legal argument from counsel for the parties,
reviewed the exhibits admitted into evidence, the Affidavits presented by each
party, and heard the testimony of McLaughlin, who was called to the stand by
Delsing.2
FACTUAL ALLEGATIONS IN MOTION AND MCLAUGHLIN’S AFFIDAVIT
15.
McLaughlin’s Motion alleges that after service of the Plaintiffs Complaint he
received an email from the attomey for Delsing and he attached it to his
2 The testimony of attorney Peck Ralston, one of the attorneys for Delsing, was offered, but when counsel
for Delsing represented to the Court that nothing clearly significant beyond the averments in her Affidavit
(filed with the May 24" Response) would be included, the Court declined to hear her testimony.
3Affidavit. The email asked him to accept service of Delsing’s Answer,
Affirmative Defenses and Crossclaim and that it attached a copy of same. He
asserts that the pleading was and the form for Acceptance and Waiver of
Service of Process were attached, but he did not receive any explanation that
he was being sued and no warning that he there could be consequences if he
did not timely file a response at the courthouse. He infers that he did know
Delsing was suing him. The emails exchanged between McLaughlin and
counsel for Delsing attached to Delsing’s Response paint a clearer picture of
Mclaughlin’s understanding that he fully understood he was being sued in
Delsing’s Crossclaim. And of course the summons he received on the
Plaintiff’s claim made him fully aware that if he filed no papers within twenty
days of service a default could be entered.
16. He alleges in his affidavit he did not receive anything by Certified mail. This
is true, but its’ legal significance is questionable, as the Court’s analysis will
demonstrate.
17. He asserts that the notice of hearing on the Motion for Final Judgment
(admitted as Exhibit C) was received but since it wasn’t directed specifically
to him, he didn’t understand he needed to attend. His name is on the casestyle
on the notice of hearing and in the certificate of service, and he was the only
party being sued by Delsing. The matter noticed for hearing was “Crossclaim-
Plaintiff's Motion for Final Crossclaim Judgment After Default.”
18. After the Judgment was entered McLaughlin states that since he was not a
party to the mediation agreement which he was accused of breaching and that
since he was only an agent for Mr. Jack Newby who signed the mediation
agreement, he should not be sued for breach. The Crossclaim specifically
alleged that Newby was a realtor and at the mediation session was an agent
acting on behalf of McLaughlin.
FACTUAL ALLEGATIONS IN DELSING’S ATTORNEY’S AFFIDAVIT
19. The affidavit of attorney Ralston Peck includes some significant allegations
and reference copies of emails and other communications between
McLaughlin and the attorney. The emails are in evidence (Exh. B).
420. Attorney Ralston Peck’s communication with McLaughlin began on or about
August 31° in a phone call and in a follow up email.
21.In a September 4 email to McLaughlin he was sent a copy of Delsing’s
Answer, Affirmative Defenses and Crossclaim against McLaughlin. Included
was a copy of the Acceptance and Waiver of Service with a request that he
consider signing and returning. His response was an effort to negotiate an
amicable resolution with Delsing through Delsing’s attorney. The attorney’s
response indicated a willingness to pass along to Delsing the content of
Mclaughlin’s email and also informed McLaughlin that if he declined to
accept and waive personal service he would be served.
22. In an email on September 5 McLaughlin said he would sign the Acceptance
and Waiver of Service.
23. Emails in October between McLaughlin and counsel for Delsing describe
some attempts at finding a tenant for the property.
24. A series of emails on November 27 between McLaughlin and attorney
Ralston Peck reveal that McLaughlin knew that Delsing was seeking to have
McLaughlin defaulted for not responding to the Crossclaim. McLaughlin
learned from Delsing’s attorney that Delsing was asking to be held harmless
by McLaughlin on claims in the action. McLaughlin responded asking that the
effort to have him defaulted be abandoned if he indemnified Delsing.
25. Attorney Ralston Peck’s affidavit also reiterates that McLaughlin was served
copies of the Motion for Judicial Default, the Motion for Final Crossclaim
Judgment, the Affidavit in support, and a copy of the Notice of Hearing on the
Motion.
ANALYSIS OF LEGAL ARGUMENTS IN MCLAUGHLIN’S MOTION
AND IN DELSING’S RESPONSE
26. McLaughlin’s Motion asserts that the Final Judgment is void for lack of
jurisdiction over him because no process was ever issued and served upon
him. The execution and filing of the Acceptance and Waiver of Service
excuse the absence of any summons having been issued. No process need be27.
28.
29.
30.
issued by a Clerk of Court if a party accepts and waived service. This
argument is rejected.
The Motion for Relief From Judgment argues that service of process was
defective be asserting that the waiver did not comply with Rule 1.070(3) of
the Florida Rules of Civil Procedure governing waivers of service. Six
different subparts are listed in the Rule and there is no dispute that some of the
subparts were absent in this case. The Motion cites a case for the proposition
that the requirements of the Rule must be strictly enforced. The quoted
proposition in applicable here. In that case, Griffith v. Slade, 95 So.3d 982
(Fla. App. 2"! DCA 1012), no process was issued or served upon the
successful appellant and, unlike here, no acceptance and waiver of process
was issued. A Notice of Hearing is what brought appellant into the trial court
proceedings from which the appeal was taken. Since neither process was
served nor waived, appellant succeeded in obtaining reversal of the trial
court’s decision below. In Griffith there was a want of service and no
involvement in the proceedings at all, unlike the facts established in this case.
McLaughlin next asserts, alternatively to the arguments regarding service, that
he has met the three prongs to set aside a default judgment. While the Court
finds from his proposed Answer and Affirmative Defenses to Delsing’s
Crossclaim presents meritorious defenses, the arguments that the two other
prongs have been met is considerably weaker.
The evidence presented by the emails in evidence, the procedural history, the
legal authorities presented, and the testimony of McLaughlin at the hearing all
lead to the conclusion that excusable neglect and due diligence are absent.
McLaughlin, a realtor, understood that a written response to a lawsuit was
required as provided in the summons he received with initial process.
McLaughlin testified he had insufficient funds to retain an attorney and that is
why he did not respond to either the Plaintiff's complaint or to Delsing’s
Crossclaim.
The length of time between the entry of the Default (November 26, 2018) and
the filing of the Motion for Relief From Judgment (May 2, 2019) is 157 days.31.
32.
33.
The Court was not cited to and has not found any legal authority which
suggests it is within the trial court’s discretion to find due diligence with such
a delay.
The assertion that McLaughlin established excusable neglect is rejected.
McLaughlin was not misled by anyone and he delayed because of his financial
circumstances. The Court has reviewed all the legally significant documents
which were served upon him. The absence of McLaughlin’s name at the top of
the Notice of Hearing on Delsing’s Motion for Final Judgment on the
Crossclaim is without legal significance where he had knowledge of all the
proceedings and actual notice of the hearing (per his testimony). A failure to
understand the legal consequences one’s inaction or to retain counsel does not
constitute excusable neglect. Joe-Lin, Inc. v. LRG Rest. Grp., Inc., 696 So.2d
539, 541 (Fla. App. 5 DCA 1997). McLaughlin never asserted on the
witness stand that he delayed because of mistake, inadvertence or surprise. It
was because he claimed to not have money for an attorney, and that is not
excusable neglect.
McLaughlin had actual notice of the proceedings and the Court had personal
jurisdiction over him over the valid Acceptance and Waiver of Service. The
Final Judgment is not void. It is voidable and is not subject to being vacated
where there is insufficient evidence to establish due diligence and excusable
neglect.
The Response filed by Delsing cites to legal authority standing for the
proposition that where defects in service are overcome by actual notice of
proceedings and the absence of timely action by the aggrieved party, the trial
court does not commit error in denying a motion to vacate a default or a
default judgment. Where notice is adequate, defects in process or service of
process are waived if not timely raised. Palais v. Wang, 632 So.2d 1132.
1135 (Fla. App. 4" DCA 1994). The defendant in Palais failed to demonstrate
excusable neglect after being personally served, receiving notices, not
appearing at trial, and then moving to set aside the default 100 days later.34.
35.
36.
37.
In Chernoff Diamond & Co., Inc. v. Gallin Assoc., Inc., 258 So.3d 563 (Fla.
App. 24 DCA 2018), the trial court set aside a default judgment but was
reversed. Gallin’s presidint was served and knew he had to respond, but he
put it away, forgot about it, and did not act until after Final Judgment had
been entered. He did not establish excusable neglect. Being neglectful of
one’s own legal affairs is insufficient and here McLaughlin’s neglect was not
excusable but intentional.
In Redmond vy. First Guaranty Mortgage Corp, 268 So.3d 918 (Fla. App. 5"
DCA 2019), the trial court’s denial of a motion to vacate a clerk’s default was
upheld on appeal where appellant waited almost seven months from the time
the default was mailed to him before moving to vacate the default and for
relief from final judgment. As here, a lack of due diligence will not entitle the
movant to relief from their own inaction.
Although the trial court is given broad discretion to grant relief from defaults
and default judgment in accord with the public policy considerations favoring
resolution of disputes on their merits, such discretion has its limits. To grant
relief here would clearly exceed those limits.
The Court is compelled to deny the requested relief.
RECOMMENDED ORDER OF THE MAGISTRATE
Based upon the above-stated Findings of Fact and Conclusions of Law, the
Magistrate
A.
submits the following Recommended Order for the approval of the Court:
The Court DENIES McLaughlin’s Motion for Relief from Final Judgment.
PLEASE READ CAREFULLY (Language in Bold is Required by Fla. R. Civ. P.
1.490):
IF YOU WISH TO SEEK REVIEW OF THE REPORT AND
RECOMMENDATIONS MADE BY THE MAGISTRATE, YOU MUST FILE
EXCEPTIONS IN ACCORDANCE WITH FLORIDA RULE OF CIVIL
PROCEDURE 1.490(i). YOU WILL BE REQUIRED TO PROVIDE THE COURT
WITH
A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS ORYOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY
INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS.
THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT
PREPARED IF NECESSARY FOR THE COURT'S REVIEW.
The hearing before the Magistrate was electronically recorded by the Court. A party may
request an electronic certified copy of the proceeding on CD, at that party’s expense, and
may then have the recording transcribed, at that party’s expense. Providing the Court
with a copy of the CD, instead of a certified written transcript, is insufficient for review
by the Court of exceptions. Media request forms, procedures, and fees, and a list of
approved Transcriptionists are available on the Court’s website, www.ca.cjis20.org , or
by calling the Court’s Electronic Court Reporting Department at 239-533-8207.
However, if the below box is checked, one of the parties elected to retain, at that party’s
own expense, a live Court Reporter who was present for the purpose of creating the
official record of the proceeding. Accordingly, any request for a transcript of the
proceeding must be submitted to that Court Reporter.
O A live Court Reporter created the official record of the proceeding, and that Court
Reporter’s name and address is as follows: none
All parties have not waived the ten day period in which to file exceptions to the Report and
Recommendations of the General Magistrate.
et
Dated: July 3°, 2019.
BY:
Honorable David C. Friedman
Magistrate, Twentieth Judicial Circuit
ce: by clerk’s e-service upon all attorneys of record4st ici ne
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR COLLIER COUNTY FLORIDA
CIVIL
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability COmpany
Plaintiff,
v.
Case No. 18-CA-2183
BAYSTAR HOLDINGS, LLC, a Florida
Limited Liability Company; KYLE D.
MCLAUGHLIN, and DANAN JON
DELSING,
Defendant(s)
DANAN JON DELSING,
Crossclaim-Plaintiff,
v.
KYLE MCLAUGHLIN,
Crossclaim-Defendant.
/
AFFIDAVIT IN SUPPORT OF MOTION FOR RELIEF FROM JUDGMENT
STATE OF FLORIDA
COUNTY OF COLLIER
BEFORE ME, the undersigned authority, an officer duly authorized to perform oaths and
acknowledgements, appeared KYLE MCLAUGHLIN, who, after being duly sworn by me,
deposes and says the following: ,
1. My name is Kyle McLaughlin. I am over 18 years old. I am involved in case 18-CA-2183
as a Defendant.
2. On September 4, 2018, I received an email from the attorney for Danan Jon Delsing. I’m
attaching it to this Affidavit. -3. The email asked me to accept service of Mr. Delsing’s Answer, Affirmative Defenses
and Crossclaim.
4. It attached a copy of Mr. Delsing’s Answer, Affirmative Defenses, and Crossclaim. It
also attached a document titled Acceptance and Waiver. I am attaching both documents to this
Affidavit.
5. These were the only two documents sent to me. There was no explanation that I was
being sued. There was no warning that I needed to file something at the courthouse. There was
no explanation as to what would happen if I didn’t do anything to respond. There was no
explanation as to how long I had to answer.
6. I didn’t receive anything by Certified mail.
7. Ilater received a notice of hearing, but it wasn’t directed to me. It didn’t list my name
anywhere, and I didn’t understand it was something I needed to attend.
8. When I found out that a judgment was entered against me on April 23, 2019, I
immediately began calling attorneys to figure out what I needed to do.
9. “I would like to defend this case. I have read the lawsuit against me filed by Mr. Delsing
and don’t think I am responsible in any way. It is based on the breach of a mediation agreement
that I never signed and was not a party to. I think Mr. Delsing should be suing the person who
signed the agreement, Jack Newby. I was just an agent for Mr. Newby.
FURTHER THE AFFIANT SAYETH NAUGHT.Swom
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and subscribed before me on
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produced
as identification.
Notary Public
December 25, 2022
KRISTINE ANN MARTINELLI!
jotary Public-State of Florida
Commission # GG 286602
My Commission Expires5/2/2019 Gmail - Re: Baystar - 898 Sth Ave S
M Gmail Kyle McLaughlin Tue, Sep 4, 2018 at 4:30 PM
To: Kyle McLaughlin
Kyle,
Please confirm that | am permitted to follow up with the attorney regarding the other tenant that is ready, willing and
able to rent the premises at the same amount that is due under the original lease. | will then send him follow
correspondence concerning the matter.
Also, as discussed, | attach to this e-mail a copy of the Answer, Affirmative Defenses and Crossclaim filed in the matter
along with an acceptance of service for you to sign. If you accept service and waive formal service of process, please
sign and return the attached Acceptance via e-mail. If you will not accept service, we will proceed with having a
process server formally serve you with the documents.
Sincerely,
Meredith A. Peck, Esq.
Peck & Peck, P.A.
5200 Tamiami Trail North, Suite 101
Naples, Florida 34103
Telephone (239) 263-9811
Facsimile (239) 263-9818
For service of pleadings and court documents email: service@peckandpecklaw.com
CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is
intended only for the use of the individual or entity named above. If the reader of this message is not the intended
recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly
prohibited. If you have received this transmission in error, please immediately reply to the sender that you have
received this communication in error and then delete it. Thank you.
[Quoted text hidden]
2 attachments
2 Acceptance of Service.pdf
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Answer, Affirmative Defenses, and Crossclaim.p
B ffi i fe id Ci laim.pdf
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https://mail.google.com/mail/u/0?ik=deS 1e3e1cf& view=pt&search=all&permmsgid=msg-f%3A 16107 10294609 188244 &simpl=msg-f%3 A 16107 10294609188244 Vi[>a tine
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL DIVISION
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability Company
Plaintiff,
v. Case No.: 18-CA-2183
BAYSTAR HOLDINGS, LLC, a Florida
Limited Liability Company; KYLE D.
MCLAUGHLIN, and DANAN JON
DELSING,
Defendants.
DANAN JON DELSING,
Crossclaim-Plaintiff,
Vv.
KYLE D. MCLAUGHLIN,
Crossclaim-Defendant.
ACCEPTANCE OF SERVICE AND WAIVER OF SERVICE OF PROCESS
COMES NOW, KYLE MCLAUGHLIN, Defendant/Crossclaim-Defendant in the above-
styled action and hereby acknowledges receipt of Defendant/Crossclaim-Plaintiff Danan Jon
Delsing’s Answer, Affirmative Defenses and Crossclaim filed in this action and in doing so
accepts service of same and specifically waives formal service of process by Sheriff or other
person duly authorized to serve process.
DATED this day of September, 2018.
Crossclaim-Defendant, Kyle D. McLaughlin,
Kyle D. McLaughlin
1378 Chesapeake Ave
Naples, FL 34102Filing # 76881461 E-Filed 08/23/2018 11:59:23 AM (CIE
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR
COLLIER COUNTY, FLORIDA CIVIL DIVISION
898 FIFTH AVENUE SOUTH HOLDINGS,
LLC, a Foreign Limited Liability Company
Plaintiff,
v. Case No.: 18-CA-2183
BAYSTAR HOLDINGS, LLC, a Florida
Limited Liability Company; KYLE D.
MCLAUGHLIN, and DANAN JON
DELSING,
Defendants.
DANAN JON DELSING,
Crossclaim-Plaintiff,
v.
KYLE D. MCLAUGHLIN,
Crossclaim-Defendant.
/
DEFENDANT DANAN JON DELSING’S ANSWER,
AFFIRMATIVE DEFENSES AND CROSSCLAIM
Defendant, DANAN JON DELSING, (“Delsing”), by and through his undersigned
counsel, hereby answers the Complaint for Eviction and Damages filed by Plaintiff, 898 FIFTH
AVENUE SOUTH HOLDINGS, LLC (“Plaintiff”), on July 27, 2018 (the “Complaint”), and
further files Affirmative Defenses and Crossclaim in response thereto, as follows.
ANSWER
1. Delsing lacks knowledge or information sufficient to form a belief as to the
allegations contained in paragraph | of Plaintiff's Complaint and therefore denies them.
2. Paragraph 2 is admitted.
FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 08/24/2018 09:45:27 AM3-4, Delsing denies the allegations in paragraphs 3 and 4.
5-7. Paragraphs 5 through 7 are admitted.
8. Delsing has insufficient information to form a belief concerning the allegations in
paragraph 8 of the Complaint and therefore denies the same and leaves Plaintiff to its proof.
9-10. Paragraphs 9 and [0 are admitted.
11-14, Delsing lacks knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs 11 through 14 and therefore denies the same and leaves
Plaintiff to its proof.
15. Delsing denies the allegations contained in paragraph 15.
16. Delsing tacks knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 16 and therefore denies the same.
17. The allegations contained in paragraph 17 are denied.
18. Delsing lacks knowledge or information sufficient to form a belief as to the
allegations contained in paragraph !8 and therefore denies the same.
19. The allegations in paragraph 19 are denied.
20. —_Delsing lacks knowledge or information sufficient to form a belief as to the
allegations contained in paragraph 20 and therefore denies the same.
21. Delsing incorporates by reference his responses to paragraphs | through 20 above
as though fully set forth in this paragraph.
22. Paragraph 22 is admitted.
23-25. Delsing lacks knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs 23 through 25 and therefore denies the same.
th26. Delsing incorporates by reference his responses to paragraphs | through 20 above
as though fully set forth in this paragraph.
27-28. Paragraphs 27 and 28 are admitted.
29-30. Delsing lacks knowledge or information sufficient to form a belief as to the
allegations contained in paragraphs 29 and 30 and therefore denies the same.
31-34. Delsing does not answer paragraphs 31 through 34 since they are not directed to
this Defendant.
35. Delsing incorporates by reference his responses to paragraphs | through 20 above
as though fully set forth in this paragraph.
36. — Delsing admits he executed a Personal Guaranty but denies that the guaranty was
in favor of 898 Fifth Avenue South Holdings, LLC.
37-38. Delsing denies the allegations in paragraphs 37 and 38.
AFFIRMATIVE DEFENSES
First Affirmative Defense
Plaintiff failed to mitigate its damages by notifying Delsing of any failure to pay or any
other breach of contract by Baystar Holdings, LLC prior to instituting this action or by securing
another tenant to pay rent due to Plaintiff. By failing to notify Delsing of any alleged failure to
pay or breach, Delsing had no opportunity to pay the sums due under the lease as sums came due
or to attempt to settle obligations of Baystar Holdings, LLC and Plaintiff has allowed its
potential damages to accumulate and increase to the detriment of Delsing.
Second Affirmative Defense
Plaintiff should only be entitled to recover unpaid rent due and not accelerate rent and
also take possession of the premises because Plaintiff would be unjustly enriched when a newtenant would also pay rent for the remainder of the lease term; Delsing only guaranteed that rent
be paid and did not guarantee to pay rent it received or would receive.
Third Affirmative Defense
Delsing did not execute a guaranty in favor of Plaintiff; rather, he executed a guaranty in
favor of Marolax Naples Inc.
CROSSCLAIM AGAINST KYLE D. McLAUGHLIN
Defendant/Crossclaim-Plaintiff, DANAN JON DELSING (“Delsing” or “Cross-
Plaintiff’), by and through his undersigned counsel, hereby sues Co-Defendant/Crossclaim-
Defendant, KYLE D. McLAUGHLIN (“McLaughlin” or “Cross-Defendant”), and states as
follows.
1. Danan Jon Delsing is a resident of Collier County, Florida, who is a licensed real
estate sales associate in the state of Florida.
2. Kyle D. McLaughlin is a resident of Collier County, Florida, who is a licensed
real estate sales associate in Florida.
3. Baystar Holdings, LLC, (“Baystar”) is an administratively dissolved Florida
limited liability company with its principal place of business in Collier County, Florida.
4, In April 2015, Baystar entered into an agreement to lease from Marolax Naples
Inc., a Florida corporation, commercial real property in Collier County, Florida (“Lease”).
5. The Lease was for the commercial real property located at 898 Fifth Avenue
South, Suite 201, Naples, Florida 34102 (“Leased Premises”).
6. Delsing and McLaughlin signed personal guaranties concerning the Lease.
COUNTI
7. This is an action for damages that exceed $15,000.8. In March 2017, a dispute arose between Delsing and McLaughlin concerning
Delsing’s entitlement to a commission from a real estate transaction.
9. Delsing and McLaughlin participated in mediation to resolve the dispute.
10. As part of a Mediation Resolution Agreement concerning the dispute
(“Agreement”), a copy of which is attached hereto as Exhibit A, McLaughlin agreed to remove
Delsing from the Lease and to assume payment of any amounts due under the Lease.
Il. | Jack Newby as REALTOR® for Waterfront Realty Group, Inc. and an agent
acting on behalf of Kyle McLaughlin executed the Mediation Resolution Agreement.
12. McLaughlin failed to remove Delsing from the Lease and failed to pay the
amounts due under the Lease.
13. McLaughlin breached the Agreement by failing to remove Delsing from the Lease
and failing to pay the amounts due under the Lease.
14. The purported landlord under the Lease now seeks to recover from Delsing
accelerated rent purportedly due under the Lease in the amount of $60,451.60.
15. Asadirect and proximate cause of said breach, Delsing has suffered damages as a
result of McLaughlin’s breach.
16. Pursuant to (4) of the Agreement, if the Agreement is judicially enforced, the non--
complying party agrees to reimburse the other party for court costs and reasonable attorney’s
fees.
17, Delsing has retained the law firm of Peck & Peck, P.A., und agreed to pay it a
reasonable fee for its services.
18. As the non-complying party, McLaughlin shall be required to reimburse Delsing
for his court costs and reasonable attorney’s fees.WHEREFORE, Counter-Plaintiff Delsing respectfully requests this Court to enter a
monetary judgment for damages in favor of Delsing against Cross-Defendant McLaughlin, plus
all costs of these proceedings and reasonable attorneys’ fees incurred by Cross-Plaintiff Delsing
in this action, and to further grant such other relief in Cross-Plaintiff Delsing’s favor as the Court
deems just and proper.
COUNT II
19. _Delsing reasserts each of the allegations contained in paragraphs | through 6
above, as though fully set forth in this paragraph.
20. In early 2017, Delsing disassociated from any business dealings with McLaughlin
und vacated the Leased Premises.
21. As part of Delsing’s vacating the Leased Premises, McLaughlin represented to
Delsing that he would assume the Lease and the responsibility of payment of any amounts due
under the Lease.
22. After Delsing vacated the Leased Premises in 2017, McLaughlin continued to
occupy the Leased Premises and pay rent due under the Lease.
23. Delsing reasonably relied on McLaughlin’s representations, that he would assume
the Lease and any responsibilities of payment under the Lease, and McLaughlin’s actions, of
continuing to pay the amounts due under the Lease for an extended period after Delsing vacated
the Leased Premises, to Delsing’s detriment.
24. Payments due under the Lease are purportedly unpaid.
25. The purported landlord under the Lease now seeks to recover from Delsing
accelerated rent in the amount of $60,451.60.26. — Delsing is entitled to recover from McLaughlin any payments due under the Lease
because of McLaughlin’s representations and Delsing’s reliance thereon.
WHEREFORE, Counter-Plaintiff Delsing respectfully requests this Court to enter a
judgment for damages in favor of Delsing against Cross-Defendant McLaughlin, plus all costs of
these proceedings and reasonable attorneys’ fees incurred by Cross-Plaintiff Delsing in this
action, and to further grant such other relief in Cross-Plaintiff Delsing’s favor as the Court deems
just and proper.
CERTIFICATE OF SERVICE
{ HEREBY CERTIFY that the foregoing was electronically filed with the Collier County
Clerk of Court and a true and correct copy has been forwarded by e-mail to Alex R. Figares,
Esq., Coleman, Yovanovich & Koester, P.A., afigares@cyklawfirm.com,
cykservice@cyklawfirm.com, on this, day of August, 2018.
DANAN JON DELSING,
‘By: Meredith A. Peck, Esq.
Florida Bar No. 106581
Attorney for Defendant and Counter-Plaintiff
Peck & Peck, P.A.
5200 Tamiami Trail North, Suite 101
Naples, Florida 34103
Telephone: 239-263-981 I
Facsimile: 239-263-9818
Email: Meredith@peckandpecklaw.com
For service of pleadings and documents:
service @peckandpecklaw.comExnibit A
Bo se 239.697.1886 RABOR.com 1486 Pina. Road
R ZA96077128 fic wevuNepleaAreacom — NeckarFL Ses:
ples Araboatd of REALIORS®
a
Your Leading Resource for Business,
MEDIATON RESOLUTION AGREEMENT
Case #17-18A
REALTOR® Michael Hughes VB. REALTOR® Jack Newby (eponcent Aig and
Downing Frye Realty, Inc. Waterfront Realty Group, Ino. cesponcert s2eand
{Compteinany REALTOR® Jeffrey Tlefenbach presconsent 12} and
Keller Williams Elita Realty 2 messondene 14)
The undersigned, as Members of the Naples Area Board of REALTORS® ("NABOR") and pursuant to the mediation
guidelines incorporated Into NABOR's professional standards procedures, have participated In and agree to the
following resolution:
1) All partles agree that Keller Willlams /Jaffrey Tlefenbach Is dismissed and removed from this arbitration
request.
2) Downlng Frye Realty/Mike Hughes agreas to Instruct Attorney James Dat! to disperse the commission in the
amount Of Sep TeD to Waterfront Reajty on of property located at 250 Robin Hood Circle; Naples,
Frida, 6 980.00 sf pat
3)
Kyte McLaughlin agrees to legally renova Danan Dalsing from the lease on property tocated at 858 5! Ave
South, Sulte 204, Naples Florida
Danan Delsing agrees to make no attempt to contact any person named on Waterfront Realty's lead
generation list unless lead contacts him directly, The undersigned agree to be bound by the above resolution
and waive any and alt future rights to submit the dispute to arbitration before the Professional Standards
Committee of NABOR or to Iitigate the matter. We further hold NABOR harmless, and expressly walve any
and all lability of NABOR or any claim that we have against NABOR arising out of the manner in which
NABOR conducted the mediation, or the resolution of the dispute reached as a result of mediation
procedures. Further, If the award {3 judicially enforced, the non-complying party agrees to relmburse the
other party for court costs and reasonable attorney's fees,
Ll tt Wine r fof 12
Data Leal 7
4)
Date
SJae/ [Ft
ate
EL pinlic—
enon Taenfack C D
As a Mediator of NABOR, do attest that ! was present during the mediation process and that the above resolution
agreement was entered into by the parties to the dispute.
: sf2e/2
Date 7 7
‘Grenda Florett!, Mediator
Preview
Filing # 92757256 E-Filed 07/18/2019 10:34:54 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY FLORIDA CIVIL 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, a Foreign Limited Liability COmpany Plaintiff, Vv. Case No. 18-CA-2183 BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, and DANAN JON DELSING, Defendant(s) DANAN JON DELSING, Crossclaim-Plaintiff, v. KYLE MCLAUGHLIN, Crossclaim-Defendant. / EXCEPTION TO MAGISTRATE’S REPORT AND RECOMMENDATION COMES NOW KYLE MCLAUGHLIN by and through the undersigned attorney and files this exception to the Magistrate’s Report and Recommendation filed on July 3, 2019, stating as follows in support: 1. A hearing was held before Magistrate Friedman on June 20, 2019, to hear Kyle McLaughlin’s Motion to Set Aside Default Final Judgment. The Magistrate subsequently entered a Report and Recommendation that the Motion be denied. The Report is attached as Exhibit 1. The Magistrate first erred by finding no legal significance in the fact that the Crossclaim-Plaintiff failed to obtain a Crossclaim summons in this case. 2. Florida Rule of Civ. Pro. 1.070(a) explicitly requires that a summons be issued in the case: “Upon the commencement of the action, summons or other process authorized by law shall FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 07/18/2019 10:34:54 AMbe issued forthwith by the clerk or judge...” Rule 1.170 requires that when a party has not appeared in the case (as was true of Kyle Mclaughlin), a crossclaim must be served “in the manner provided for service of summons.” The Florida Rules of Civil Procedure Form 1.903 shows what a crossclaim summons should look like. 3. A court does not obtain jurisdiction over a party until sufficient process has been issued and served on the party. Gilliam v. Smart, 809 So.2d 905 (Fla. 1* DCA, 2002). 4. This Court could not have obtained jurisdiction over Kyle Mclaughlin for the crossclaim because no process was ever issued. 5. The Magistrate dismisses this glaring failure by the Crossclaim Plaintiff by simply saying “The execution and filing of the Acceptance and Waiver of Service excuse the absence of any summons having been issued. No process need be issued by a Clerk of Court if a party accepts and waived service.” (Report, para. 26). 6. The Magistrate’s conclusion contradicts the Rules of Civil Procedure and case law. In making his conclusion, the Magistrate does not cite any supporting authority. Moreover, the Magistrate’s conclusion is illogical because one cannot accept process if no process was issued. 7. Accordingly, and for all the foregoing reasons, the Motion to Set Aside the Default Final Judgment should have been found to be void for lack of jurisdiction based on the failure of the Crossclaim Plaintiff to obtain process. The Magistrate erred in finding the Plaintiff was excused in failing to follow Florida procedure for waiving service of process. 8. In order to obtain a waiver of service of process, a party must follow Rule 1.070(3) which has six requirements. There is no question that the Plaintiff did not follow Rule 1.070(). Specifically, the request for acceptance and waiver was not mailed by certified mail; 2) did not inform the defendant of the consequence of non-compliance and of failure to comply with therequest; 3) did not contain a notice of commencement, and 4) did not provide the Defendant 20 days to respond to the request. 9. As noted by the Second District Court of Appeals “statutes governing service of process are to be strictly construed and enforced.” Griffith v. Slade, 95 So. 3d 982 (Fla. and DCA, 2012). In Griffith, the Second DCA explicitly found that the waiver requirements of 1.070(4) must be strictly complied with. /d. at 984. 10. The Magistrate disregarded the Second DCA’s holding by distinguishing between the underlying facts in Griffith and the instant case. (Report, para. 27). The deficiency in the Magistrate’s ruling is that the factual distinctions are irrelevant. The holding is that all six subparts must be strictly followed, and if they are not, the service is defective. It doesn’t matter if the parties in Griffith failed to comply with Rule 1.070(i) in a different way than the Plaintiff in the instant case. The fact that the Plaintiff failed to strictly comply with Rule 1.070(i) means his attempt to obtain service by mail failed according to Griffith. 11. In fact, the Magistrate argued that Rule 1.070(i) didn’t need to be followed because the Defendant signed an acceptance and waiver. The fallacy of this argument is immediately apparent. Only by following Rule 1.070(i) could the Plaintiff have properly obtained an Acceptance and Waiver. The Court cannot rely on a defective Acceptance and Waiver to excuse failure to follow the Rule required to obtain Acceptance and Waiver. 12. The Defendant’s affidavit with attached communication from the Plaintiff and the defective acceptance and waiver are attached as Exhibit 2. 13. Moreover, the only document the Defendant accepted was the Crossclaim itself. No summons was issued or provided to the Defendant, so it’s ridiculous to claim the Defendant accepted process.14. “Process” refers to the “summons or other process.” Rule 1.070(a). “Service of Process” requires service of both the summons and the complaint. Fla. 48.031(1)(a). Here, the only document provided to the Defendant was the complaint. Accordingly, it cannot be said the Defendant accepted process. Rather, at best it can be said the Defendant accepted and waived service of the complaint. 15. In fact, the defective Acceptance of Service filed by the Plaintiff states only that the Defendant “acknowledges receipt of Defendant/Crossclaim-Plaintiff Danan Jon Delsing’s Answer, Affirmative Defenses and Crossclaim.” It does not say the Defendant accepts service of the summons, nor does it say the Defendant waives the issuance of a summons. Thus, the Magistrate grossly erred both in excusing the Plaintiff's failure to comply with Rule 1.070(i) and finding the Acceptance and Waiver waived service of a summons. 16. Accordingly, the Motion to Set Aside the Default should be granted for want of service based on the Plaintiffs failure to follow Rule 1.070(i) and serve a summons. The Magistrate erred by failing to apply a liberal standard to the Defendant’s Motion. 17. This case has not been decided on the merits. 18. “Florida has a long-standing public policy in favor of adjudication of disputes on the merits wherever possible.” Westgate Miami Beach, Ltd. V. Newport Operating Corp., 55 So.3d 567, 574 (Fla. 2010) (citing North Shore Hospital, Inc. v. Barber, 143 So. 2d 849, 852-53 (Fla. 1962). As the Supreme Court reiterated in North Shore Hospital, Inc. v. Barber, “if there by any reasonable doubt in the matter [of vacating a default], it should be resolved in favor of granting the application and allowing a trial upon the merits of the case.” N. Shore Hosp., Inc. v. Barber, 143 So.2d 849, 853 (Fla. 1962).19. The Florida Rules of Civil Procedure dealing with default “should be liberally construed in favor of deciding cases on the merits.” Makes & Models Magazine, Inc. v. Web Offset Printing Co., Inc., 13 So. 3d 178, 181 (Fla. 2d DCA 2009). Although “[o]ne of the purposes of a default is to help speed up an action and thereby prevent a dilatory or procrastinating defendant from impeding a plaintiff in the establishment of his claim,” the procedure is not intended “to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment reached without the difficulty that arises from a contest by the defendant.” Hully v. Hully, 653 So. 2d 1138, 1140 (Fla. 2d DCA 1995). 20. It boggles the mind that the Magistrate did not find that a complete failure to obtain process as required by the Florida Rules of Civil Procedure or a failure to follow the Rules for service create at least a “reasonable doubt” as to setting aside the Default Judgment. 21. The Magistrate’s handling of the Motion is backwards. He afforded complete deference and liberality to the Plaintiff, excusing multiple violations of the rules instead of reviewing the Defendant’s Motion with liberality and deference. 22. The liberal standard required by the Supreme Court should result in granting the Defendant’s Motion to Set Aside the Default Judgment. The Magistrate erred by finding no excusable neglect. 23. The Default Final Judgment should be found to be void based on the two arguments raised herein: 1) lack of issuance of a summons makes the Judgment void and 2) failure to strictly follow the Rule on service by mail makes the Judgment void. 24. In addition, the Judgment should be set aside under Rule 1.540 for excusable neglect. The Magistrate did not address the Defendant’s argument that the complete lack of a summons andthe lack of any notice to the Defendant that a response was required in 20 days makes his neglect in not filing a response excusable. 25. The Magistrate likewise erred in finding that the Defendant did not act diligently where the Defendant acted within 9 days to set aside the Default Final Judgment. WHEREFORE, the Defendant, KYLE MCLAUGHLIN, asks this Court to sustain this exception and set aside the Default Final Judgment and provide any other relief the Court deems proper. /s/ Brantley Oakey Bar No. 99076 The Law Office of Brantley Oakey 780 5™ Ave. S, Ste. 200 Naples, FL 34102 239-963-2897 boakey@naplesattomey.biz service@yournaplesattorney.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing has been emailed to counsel for Plaintiff on this the 18th day of July, 2019. /s/ Brantley Oakey Bar No. 99076 The Law Office of Brantley Oakey 780 5" Ave. S, Ste. 200 Naples, FL 34102 239-963-2897 boakey@naplesattomey.biz service@yournaplesattorney.comFiling # 92079336 E-Filed 07/03/2019 02:23:39 PM ST IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT 1) IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, a Foreign Limited Liability Company, Plaintiff, vs. CASE NO.:18-218-3CA-EVK BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, And DANAN JON DELSING, Defendants. DANAN JON DELSING, Crossclaim-Plaintiff, vs. KYLE D. MCLAUGHLIN, Crossclaim-Defendant. / REPORT AND RECOMMENDATIONS OF THE MAGISTRATE DENYING CROSS-CLAIM DEFENDANT MCLAUGHLIN’S MOTION FOR RELIEF FROM FINAL JUDGMENT ATTENDANCE: Plaintiff X__ Attorney for XClaim-Plaintiff Defendant XX_ Attorneys for X-Claim-Defendant x Court Reporter ECR Clerk of Court This cause has come on to be heard before Magistrate David C. Friedman on June 20, 2019, pursuant to the Motion to Vacate Final Judgment (by Cross-Claim Defendant MCLAUGHLIN). The Magistrate has jurisdiction pursuant to the Florida Rules of Civil Procedure, 1.490, et seq. The Court finds that an Order of Referral for the matters heard by the Magistrate was served upon the parties and that no party made a timely objectionto the referral.' This Court being otherwise fully advised, the following Findings of Fact and Conclusions of Law are made: FINDINGS OF FACT AND CONCLUSIONS OF LAW PROCEDURAL HISTORY 1. This action began as a commercial landlord-tenant dispute for eviction and damages. Defendant Delsing has reached a stipulation with the Plaintiff and the main cause of action has been dismissed. 2. The Cross-Claim Defendant McLaughlin has filed the Motion for Relief from a Final Judgment with a supporting affidavit. The Judgment for damages in favor of Cross-Claim Plaintiff Delsing against McLaughlin was entered on April 23, 2019. A Default was entered against McLaughlin by the Circuit Court Judge on November 26, 2018. 3. Plaintiff's complaint was served upon Defendant McLaughlin at 1376 Chesapeake Avenue in Naples on August 7, 2018. 4. On August 23, 2018, Defendant Delsing responded to the Plaintiff's Complaint and sued McLaughlin in a Cross-Claim. 5. On September 7, 2018, McLaughlin as the Cross-Claim Defendant signed an Acceptance of Service and Waiver of Service of Process, which was filed on the same day. 6. On November 20, 2018, Delsing filed a Motion for Judicial Default against McLaughlin alleging he failed to file any papers and had accepted service. The certificate of service reflects a copy was mailed to McLaughlin at the address where he was served initial process. The Order was submitted to Judge Lauren L. Brodie and was signed and filed on November 26, 2018 and McLaughlin was included on the certificate of service on the Order Granting Motion for Judicial Default. ' At the hearing, Delsing did not voice any objection to the Magistrate’s jurisdiction, although he had filed an Objection on May 17%.10. 11. 12. 13. 14. On February 20, 2019, Delsing filed a Motion for Final Judgment after Default against McLaughlin. A copy was mailed to McLaughlin at the address where he was served initial process. On March 20, 2019, Delsing filed and served McLaughlin at that same address with the Notice of Hearing on the Motion. McLaughlin was listed again in the certificate of service. The hearing was conducted on March 28, 2019, with no appearance by McLaughlin and this Court recommended the granting of Delsing’s Motion. The Order Adopting the Recommendations and entering the Final Judgment against McLaughlin was signed and filed on April 23, 2019. Both the Recommended Order and the Order Adopting were copied to both counsel for Delsing and to McLaughlin. On May 2, 2019, counsel for McLaughlin filed a Notice of Appearance with the subject Motion and attachments. On May 3" McLaughlin’s Affidavit in support of the Motion was filed. On May 15, 2019, McLaughlin served and filed the Notice of Hearing on the Motion. On May 24, 2019, Delsing filed a Response to the Motion for Relief from Final Judgment. On June 5, 2019 McLaughlin filed an Answer with Affirmative Defenses to Delsing’s Cross-Claim. A request for leave of court is not apparent from the court file. At the hearing the Court heard legal argument from counsel for the parties, reviewed the exhibits admitted into evidence, the Affidavits presented by each party, and heard the testimony of McLaughlin, who was called to the stand by Delsing.2 FACTUAL ALLEGATIONS IN MOTION AND MCLAUGHLIN’S AFFIDAVIT 15. McLaughlin’s Motion alleges that after service of the Plaintiffs Complaint he received an email from the attomey for Delsing and he attached it to his 2 The testimony of attorney Peck Ralston, one of the attorneys for Delsing, was offered, but when counsel for Delsing represented to the Court that nothing clearly significant beyond the averments in her Affidavit (filed with the May 24" Response) would be included, the Court declined to hear her testimony. 3Affidavit. The email asked him to accept service of Delsing’s Answer, Affirmative Defenses and Crossclaim and that it attached a copy of same. He asserts that the pleading was and the form for Acceptance and Waiver of Service of Process were attached, but he did not receive any explanation that he was being sued and no warning that he there could be consequences if he did not timely file a response at the courthouse. He infers that he did know Delsing was suing him. The emails exchanged between McLaughlin and counsel for Delsing attached to Delsing’s Response paint a clearer picture of Mclaughlin’s understanding that he fully understood he was being sued in Delsing’s Crossclaim. And of course the summons he received on the Plaintiff’s claim made him fully aware that if he filed no papers within twenty days of service a default could be entered. 16. He alleges in his affidavit he did not receive anything by Certified mail. This is true, but its’ legal significance is questionable, as the Court’s analysis will demonstrate. 17. He asserts that the notice of hearing on the Motion for Final Judgment (admitted as Exhibit C) was received but since it wasn’t directed specifically to him, he didn’t understand he needed to attend. His name is on the casestyle on the notice of hearing and in the certificate of service, and he was the only party being sued by Delsing. The matter noticed for hearing was “Crossclaim- Plaintiff's Motion for Final Crossclaim Judgment After Default.” 18. After the Judgment was entered McLaughlin states that since he was not a party to the mediation agreement which he was accused of breaching and that since he was only an agent for Mr. Jack Newby who signed the mediation agreement, he should not be sued for breach. The Crossclaim specifically alleged that Newby was a realtor and at the mediation session was an agent acting on behalf of McLaughlin. FACTUAL ALLEGATIONS IN DELSING’S ATTORNEY’S AFFIDAVIT 19. The affidavit of attorney Ralston Peck includes some significant allegations and reference copies of emails and other communications between McLaughlin and the attorney. The emails are in evidence (Exh. B). 420. Attorney Ralston Peck’s communication with McLaughlin began on or about August 31° in a phone call and in a follow up email. 21.In a September 4 email to McLaughlin he was sent a copy of Delsing’s Answer, Affirmative Defenses and Crossclaim against McLaughlin. Included was a copy of the Acceptance and Waiver of Service with a request that he consider signing and returning. His response was an effort to negotiate an amicable resolution with Delsing through Delsing’s attorney. The attorney’s response indicated a willingness to pass along to Delsing the content of Mclaughlin’s email and also informed McLaughlin that if he declined to accept and waive personal service he would be served. 22. In an email on September 5 McLaughlin said he would sign the Acceptance and Waiver of Service. 23. Emails in October between McLaughlin and counsel for Delsing describe some attempts at finding a tenant for the property. 24. A series of emails on November 27 between McLaughlin and attorney Ralston Peck reveal that McLaughlin knew that Delsing was seeking to have McLaughlin defaulted for not responding to the Crossclaim. McLaughlin learned from Delsing’s attorney that Delsing was asking to be held harmless by McLaughlin on claims in the action. McLaughlin responded asking that the effort to have him defaulted be abandoned if he indemnified Delsing. 25. Attorney Ralston Peck’s affidavit also reiterates that McLaughlin was served copies of the Motion for Judicial Default, the Motion for Final Crossclaim Judgment, the Affidavit in support, and a copy of the Notice of Hearing on the Motion. ANALYSIS OF LEGAL ARGUMENTS IN MCLAUGHLIN’S MOTION AND IN DELSING’S RESPONSE 26. McLaughlin’s Motion asserts that the Final Judgment is void for lack of jurisdiction over him because no process was ever issued and served upon him. The execution and filing of the Acceptance and Waiver of Service excuse the absence of any summons having been issued. No process need be27. 28. 29. 30. issued by a Clerk of Court if a party accepts and waived service. This argument is rejected. The Motion for Relief From Judgment argues that service of process was defective be asserting that the waiver did not comply with Rule 1.070(3) of the Florida Rules of Civil Procedure governing waivers of service. Six different subparts are listed in the Rule and there is no dispute that some of the subparts were absent in this case. The Motion cites a case for the proposition that the requirements of the Rule must be strictly enforced. The quoted proposition in applicable here. In that case, Griffith v. Slade, 95 So.3d 982 (Fla. App. 2"! DCA 1012), no process was issued or served upon the successful appellant and, unlike here, no acceptance and waiver of process was issued. A Notice of Hearing is what brought appellant into the trial court proceedings from which the appeal was taken. Since neither process was served nor waived, appellant succeeded in obtaining reversal of the trial court’s decision below. In Griffith there was a want of service and no involvement in the proceedings at all, unlike the facts established in this case. McLaughlin next asserts, alternatively to the arguments regarding service, that he has met the three prongs to set aside a default judgment. While the Court finds from his proposed Answer and Affirmative Defenses to Delsing’s Crossclaim presents meritorious defenses, the arguments that the two other prongs have been met is considerably weaker. The evidence presented by the emails in evidence, the procedural history, the legal authorities presented, and the testimony of McLaughlin at the hearing all lead to the conclusion that excusable neglect and due diligence are absent. McLaughlin, a realtor, understood that a written response to a lawsuit was required as provided in the summons he received with initial process. McLaughlin testified he had insufficient funds to retain an attorney and that is why he did not respond to either the Plaintiff's complaint or to Delsing’s Crossclaim. The length of time between the entry of the Default (November 26, 2018) and the filing of the Motion for Relief From Judgment (May 2, 2019) is 157 days.31. 32. 33. The Court was not cited to and has not found any legal authority which suggests it is within the trial court’s discretion to find due diligence with such a delay. The assertion that McLaughlin established excusable neglect is rejected. McLaughlin was not misled by anyone and he delayed because of his financial circumstances. The Court has reviewed all the legally significant documents which were served upon him. The absence of McLaughlin’s name at the top of the Notice of Hearing on Delsing’s Motion for Final Judgment on the Crossclaim is without legal significance where he had knowledge of all the proceedings and actual notice of the hearing (per his testimony). A failure to understand the legal consequences one’s inaction or to retain counsel does not constitute excusable neglect. Joe-Lin, Inc. v. LRG Rest. Grp., Inc., 696 So.2d 539, 541 (Fla. App. 5 DCA 1997). McLaughlin never asserted on the witness stand that he delayed because of mistake, inadvertence or surprise. It was because he claimed to not have money for an attorney, and that is not excusable neglect. McLaughlin had actual notice of the proceedings and the Court had personal jurisdiction over him over the valid Acceptance and Waiver of Service. The Final Judgment is not void. It is voidable and is not subject to being vacated where there is insufficient evidence to establish due diligence and excusable neglect. The Response filed by Delsing cites to legal authority standing for the proposition that where defects in service are overcome by actual notice of proceedings and the absence of timely action by the aggrieved party, the trial court does not commit error in denying a motion to vacate a default or a default judgment. Where notice is adequate, defects in process or service of process are waived if not timely raised. Palais v. Wang, 632 So.2d 1132. 1135 (Fla. App. 4" DCA 1994). The defendant in Palais failed to demonstrate excusable neglect after being personally served, receiving notices, not appearing at trial, and then moving to set aside the default 100 days later.34. 35. 36. 37. In Chernoff Diamond & Co., Inc. v. Gallin Assoc., Inc., 258 So.3d 563 (Fla. App. 24 DCA 2018), the trial court set aside a default judgment but was reversed. Gallin’s presidint was served and knew he had to respond, but he put it away, forgot about it, and did not act until after Final Judgment had been entered. He did not establish excusable neglect. Being neglectful of one’s own legal affairs is insufficient and here McLaughlin’s neglect was not excusable but intentional. In Redmond vy. First Guaranty Mortgage Corp, 268 So.3d 918 (Fla. App. 5" DCA 2019), the trial court’s denial of a motion to vacate a clerk’s default was upheld on appeal where appellant waited almost seven months from the time the default was mailed to him before moving to vacate the default and for relief from final judgment. As here, a lack of due diligence will not entitle the movant to relief from their own inaction. Although the trial court is given broad discretion to grant relief from defaults and default judgment in accord with the public policy considerations favoring resolution of disputes on their merits, such discretion has its limits. To grant relief here would clearly exceed those limits. The Court is compelled to deny the requested relief. RECOMMENDED ORDER OF THE MAGISTRATE Based upon the above-stated Findings of Fact and Conclusions of Law, the Magistrate A. submits the following Recommended Order for the approval of the Court: The Court DENIES McLaughlin’s Motion for Relief from Final Judgment. PLEASE READ CAREFULLY (Language in Bold is Required by Fla. R. Civ. P. 1.490): IF YOU WISH TO SEEK REVIEW OF THE REPORT AND RECOMMENDATIONS MADE BY THE MAGISTRATE, YOU MUST FILE EXCEPTIONS IN ACCORDANCE WITH FLORIDA RULE OF CIVIL PROCEDURE 1.490(i). YOU WILL BE REQUIRED TO PROVIDE THE COURT WITH A RECORD SUFFICIENT TO SUPPORT YOUR EXCEPTIONS ORYOUR EXCEPTIONS WILL BE DENIED. A RECORD ORDINARILY INCLUDES A WRITTEN TRANSCRIPT OF ALL RELEVANT PROCEEDINGS. THE PERSON SEEKING REVIEW MUST HAVE THE TRANSCRIPT PREPARED IF NECESSARY FOR THE COURT'S REVIEW. The hearing before the Magistrate was electronically recorded by the Court. A party may request an electronic certified copy of the proceeding on CD, at that party’s expense, and may then have the recording transcribed, at that party’s expense. Providing the Court with a copy of the CD, instead of a certified written transcript, is insufficient for review by the Court of exceptions. Media request forms, procedures, and fees, and a list of approved Transcriptionists are available on the Court’s website, www.ca.cjis20.org , or by calling the Court’s Electronic Court Reporting Department at 239-533-8207. However, if the below box is checked, one of the parties elected to retain, at that party’s own expense, a live Court Reporter who was present for the purpose of creating the official record of the proceeding. Accordingly, any request for a transcript of the proceeding must be submitted to that Court Reporter. O A live Court Reporter created the official record of the proceeding, and that Court Reporter’s name and address is as follows: none All parties have not waived the ten day period in which to file exceptions to the Report and Recommendations of the General Magistrate. et Dated: July 3°, 2019. BY: Honorable David C. Friedman Magistrate, Twentieth Judicial Circuit ce: by clerk’s e-service upon all attorneys of record4st ici ne IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY FLORIDA CIVIL 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, a Foreign Limited Liability COmpany Plaintiff, v. Case No. 18-CA-2183 BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, and DANAN JON DELSING, Defendant(s) DANAN JON DELSING, Crossclaim-Plaintiff, v. KYLE MCLAUGHLIN, Crossclaim-Defendant. / AFFIDAVIT IN SUPPORT OF MOTION FOR RELIEF FROM JUDGMENT STATE OF FLORIDA COUNTY OF COLLIER BEFORE ME, the undersigned authority, an officer duly authorized to perform oaths and acknowledgements, appeared KYLE MCLAUGHLIN, who, after being duly sworn by me, deposes and says the following: , 1. My name is Kyle McLaughlin. I am over 18 years old. I am involved in case 18-CA-2183 as a Defendant. 2. On September 4, 2018, I received an email from the attorney for Danan Jon Delsing. I’m attaching it to this Affidavit. -3. The email asked me to accept service of Mr. Delsing’s Answer, Affirmative Defenses and Crossclaim. 4. It attached a copy of Mr. Delsing’s Answer, Affirmative Defenses, and Crossclaim. It also attached a document titled Acceptance and Waiver. I am attaching both documents to this Affidavit. 5. These were the only two documents sent to me. There was no explanation that I was being sued. There was no warning that I needed to file something at the courthouse. There was no explanation as to what would happen if I didn’t do anything to respond. There was no explanation as to how long I had to answer. 6. I didn’t receive anything by Certified mail. 7. Ilater received a notice of hearing, but it wasn’t directed to me. It didn’t list my name anywhere, and I didn’t understand it was something I needed to attend. 8. When I found out that a judgment was entered against me on April 23, 2019, I immediately began calling attorneys to figure out what I needed to do. 9. “I would like to defend this case. I have read the lawsuit against me filed by Mr. Delsing and don’t think I am responsible in any way. It is based on the breach of a mediation agreement that I never signed and was not a party to. I think Mr. Delsing should be suing the person who signed the agreement, Jack Newby. I was just an agent for Mr. Newby. FURTHER THE AFFIANT SAYETH NAUGHT.Swom Yo i) and subscribed before me on A1ae¢ 3 2 V9, by Kavi } quigh lint » who is personally known to me a or who produced as identification. Notary Public December 25, 2022 KRISTINE ANN MARTINELLI! jotary Public-State of Florida Commission # GG 286602 My Commission Expires5/2/2019 Gmail - Re: Baystar - 898 Sth Ave S M Gmail Kyle McLaughlin Tue, Sep 4, 2018 at 4:30 PM To: Kyle McLaughlin Kyle, Please confirm that | am permitted to follow up with the attorney regarding the other tenant that is ready, willing and able to rent the premises at the same amount that is due under the original lease. | will then send him follow correspondence concerning the matter. Also, as discussed, | attach to this e-mail a copy of the Answer, Affirmative Defenses and Crossclaim filed in the matter along with an acceptance of service for you to sign. If you accept service and waive formal service of process, please sign and return the attached Acceptance via e-mail. If you will not accept service, we will proceed with having a process server formally serve you with the documents. Sincerely, Meredith A. Peck, Esq. Peck & Peck, P.A. 5200 Tamiami Trail North, Suite 101 Naples, Florida 34103 Telephone (239) 263-9811 Facsimile (239) 263-9818 For service of pleadings and court documents email: service@peckandpecklaw.com CONFIDENTIALITY NOTICE: The information contained in this transmission may be privileged and confidential, and is intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this transmission in error, please immediately reply to the sender that you have received this communication in error and then delete it. Thank you. [Quoted text hidden] 2 attachments 2 Acceptance of Service.pdf 76K Answer, Affirmative Defenses, and Crossclaim.p B ffi i fe id Ci laim.pdf 265K https://mail.google.com/mail/u/0?ik=deS 1e3e1cf& view=pt&search=all&permmsgid=msg-f%3A 16107 10294609 188244 &simpl=msg-f%3 A 16107 10294609188244 Vi[>a tine IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, a Foreign Limited Liability Company Plaintiff, v. Case No.: 18-CA-2183 BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, and DANAN JON DELSING, Defendants. DANAN JON DELSING, Crossclaim-Plaintiff, Vv. KYLE D. MCLAUGHLIN, Crossclaim-Defendant. ACCEPTANCE OF SERVICE AND WAIVER OF SERVICE OF PROCESS COMES NOW, KYLE MCLAUGHLIN, Defendant/Crossclaim-Defendant in the above- styled action and hereby acknowledges receipt of Defendant/Crossclaim-Plaintiff Danan Jon Delsing’s Answer, Affirmative Defenses and Crossclaim filed in this action and in doing so accepts service of same and specifically waives formal service of process by Sheriff or other person duly authorized to serve process. DATED this day of September, 2018. Crossclaim-Defendant, Kyle D. McLaughlin, Kyle D. McLaughlin 1378 Chesapeake Ave Naples, FL 34102Filing # 76881461 E-Filed 08/23/2018 11:59:23 AM (CIE IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIVIL DIVISION 898 FIFTH AVENUE SOUTH HOLDINGS, LLC, a Foreign Limited Liability Company Plaintiff, v. Case No.: 18-CA-2183 BAYSTAR HOLDINGS, LLC, a Florida Limited Liability Company; KYLE D. MCLAUGHLIN, and DANAN JON DELSING, Defendants. DANAN JON DELSING, Crossclaim-Plaintiff, v. KYLE D. MCLAUGHLIN, Crossclaim-Defendant. / DEFENDANT DANAN JON DELSING’S ANSWER, AFFIRMATIVE DEFENSES AND CROSSCLAIM Defendant, DANAN JON DELSING, (“Delsing”), by and through his undersigned counsel, hereby answers the Complaint for Eviction and Damages filed by Plaintiff, 898 FIFTH AVENUE SOUTH HOLDINGS, LLC (“Plaintiff”), on July 27, 2018 (the “Complaint”), and further files Affirmative Defenses and Crossclaim in response thereto, as follows. ANSWER 1. Delsing lacks knowledge or information sufficient to form a belief as to the allegations contained in paragraph | of Plaintiff's Complaint and therefore denies them. 2. Paragraph 2 is admitted. FILED: COLLIER COUNTY, CRYSTAL K. KINZEL, CLERK, 08/24/2018 09:45:27 AM3-4, Delsing denies the allegations in paragraphs 3 and 4. 5-7. Paragraphs 5 through 7 are admitted. 8. Delsing has insufficient information to form a belief concerning the allegations in paragraph 8 of the Complaint and therefore denies the same and leaves Plaintiff to its proof. 9-10. Paragraphs 9 and [0 are admitted. 11-14, Delsing lacks knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 11 through 14 and therefore denies the same and leaves Plaintiff to its proof. 15. Delsing denies the allegations contained in paragraph 15. 16. Delsing tacks knowledge or information sufficient to form a belief as to the allegations contained in paragraph 16 and therefore denies the same. 17. The allegations contained in paragraph 17 are denied. 18. Delsing lacks knowledge or information sufficient to form a belief as to the allegations contained in paragraph !8 and therefore denies the same. 19. The allegations in paragraph 19 are denied. 20. —_Delsing lacks knowledge or information sufficient to form a belief as to the allegations contained in paragraph 20 and therefore denies the same. 21. Delsing incorporates by reference his responses to paragraphs | through 20 above as though fully set forth in this paragraph. 22. Paragraph 22 is admitted. 23-25. Delsing lacks knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 23 through 25 and therefore denies the same. th26. Delsing incorporates by reference his responses to paragraphs | through 20 above as though fully set forth in this paragraph. 27-28. Paragraphs 27 and 28 are admitted. 29-30. Delsing lacks knowledge or information sufficient to form a belief as to the allegations contained in paragraphs 29 and 30 and therefore denies the same. 31-34. Delsing does not answer paragraphs 31 through 34 since they are not directed to this Defendant. 35. Delsing incorporates by reference his responses to paragraphs | through 20 above as though fully set forth in this paragraph. 36. — Delsing admits he executed a Personal Guaranty but denies that the guaranty was in favor of 898 Fifth Avenue South Holdings, LLC. 37-38. Delsing denies the allegations in paragraphs 37 and 38. AFFIRMATIVE DEFENSES First Affirmative Defense Plaintiff failed to mitigate its damages by notifying Delsing of any failure to pay or any other breach of contract by Baystar Holdings, LLC prior to instituting this action or by securing another tenant to pay rent due to Plaintiff. By failing to notify Delsing of any alleged failure to pay or breach, Delsing had no opportunity to pay the sums due under the lease as sums came due or to attempt to settle obligations of Baystar Holdings, LLC and Plaintiff has allowed its potential damages to accumulate and increase to the detriment of Delsing. Second Affirmative Defense Plaintiff should only be entitled to recover unpaid rent due and not accelerate rent and also take possession of the premises because Plaintiff would be unjustly enriched when a newtenant would also pay rent for the remainder of the lease term; Delsing only guaranteed that rent be paid and did not guarantee to pay rent it received or would receive. Third Affirmative Defense Delsing did not execute a guaranty in favor of Plaintiff; rather, he executed a guaranty in favor of Marolax Naples Inc. CROSSCLAIM AGAINST KYLE D. McLAUGHLIN Defendant/Crossclaim-Plaintiff, DANAN JON DELSING (“Delsing” or “Cross- Plaintiff’), by and through his undersigned counsel, hereby sues Co-Defendant/Crossclaim- Defendant, KYLE D. McLAUGHLIN (“McLaughlin” or “Cross-Defendant”), and states as follows. 1. Danan Jon Delsing is a resident of Collier County, Florida, who is a licensed real estate sales associate in the state of Florida. 2. Kyle D. McLaughlin is a resident of Collier County, Florida, who is a licensed real estate sales associate in Florida. 3. Baystar Holdings, LLC, (“Baystar”) is an administratively dissolved Florida limited liability company with its principal place of business in Collier County, Florida. 4, In April 2015, Baystar entered into an agreement to lease from Marolax Naples Inc., a Florida corporation, commercial real property in Collier County, Florida (“Lease”). 5. The Lease was for the commercial real property located at 898 Fifth Avenue South, Suite 201, Naples, Florida 34102 (“Leased Premises”). 6. Delsing and McLaughlin signed personal guaranties concerning the Lease. COUNTI 7. This is an action for damages that exceed $15,000.8. In March 2017, a dispute arose between Delsing and McLaughlin concerning Delsing’s entitlement to a commission from a real estate transaction. 9. Delsing and McLaughlin participated in mediation to resolve the dispute. 10. As part of a Mediation Resolution Agreement concerning the dispute (“Agreement”), a copy of which is attached hereto as Exhibit A, McLaughlin agreed to remove Delsing from the Lease and to assume payment of any amounts due under the Lease. Il. | Jack Newby as REALTOR® for Waterfront Realty Group, Inc. and an agent acting on behalf of Kyle McLaughlin executed the Mediation Resolution Agreement. 12. McLaughlin failed to remove Delsing from the Lease and failed to pay the amounts due under the Lease. 13. McLaughlin breached the Agreement by failing to remove Delsing from the Lease and failing to pay the amounts due under the Lease. 14. The purported landlord under the Lease now seeks to recover from Delsing accelerated rent purportedly due under the Lease in the amount of $60,451.60. 15. Asadirect and proximate cause of said breach, Delsing has suffered damages as a result of McLaughlin’s breach. 16. Pursuant to (4) of the Agreement, if the Agreement is judicially enforced, the non-- complying party agrees to reimburse the other party for court costs and reasonable attorney’s fees. 17, Delsing has retained the law firm of Peck & Peck, P.A., und agreed to pay it a reasonable fee for its services. 18. As the non-complying party, McLaughlin shall be required to reimburse Delsing for his court costs and reasonable attorney’s fees.WHEREFORE, Counter-Plaintiff Delsing respectfully requests this Court to enter a monetary judgment for damages in favor of Delsing against Cross-Defendant McLaughlin, plus all costs of these proceedings and reasonable attorneys’ fees incurred by Cross-Plaintiff Delsing in this action, and to further grant such other relief in Cross-Plaintiff Delsing’s favor as the Court deems just and proper. COUNT II 19. _Delsing reasserts each of the allegations contained in paragraphs | through 6 above, as though fully set forth in this paragraph. 20. In early 2017, Delsing disassociated from any business dealings with McLaughlin und vacated the Leased Premises. 21. As part of Delsing’s vacating the Leased Premises, McLaughlin represented to Delsing that he would assume the Lease and the responsibility of payment of any amounts due under the Lease. 22. After Delsing vacated the Leased Premises in 2017, McLaughlin continued to occupy the Leased Premises and pay rent due under the Lease. 23. Delsing reasonably relied on McLaughlin’s representations, that he would assume the Lease and any responsibilities of payment under the Lease, and McLaughlin’s actions, of continuing to pay the amounts due under the Lease for an extended period after Delsing vacated the Leased Premises, to Delsing’s detriment. 24. Payments due under the Lease are purportedly unpaid. 25. The purported landlord under the Lease now seeks to recover from Delsing accelerated rent in the amount of $60,451.60.26. — Delsing is entitled to recover from McLaughlin any payments due under the Lease because of McLaughlin’s representations and Delsing’s reliance thereon. WHEREFORE, Counter-Plaintiff Delsing respectfully requests this Court to enter a judgment for damages in favor of Delsing against Cross-Defendant McLaughlin, plus all costs of these proceedings and reasonable attorneys’ fees incurred by Cross-Plaintiff Delsing in this action, and to further grant such other relief in Cross-Plaintiff Delsing’s favor as the Court deems just and proper. CERTIFICATE OF SERVICE { HEREBY CERTIFY that the foregoing was electronically filed with the Collier County Clerk of Court and a true and correct copy has been forwarded by e-mail to Alex R. Figares, Esq., Coleman, Yovanovich & Koester, P.A., afigares@cyklawfirm.com, cykservice@cyklawfirm.com, on this, day of August, 2018. DANAN JON DELSING, ‘By: Meredith A. Peck, Esq. Florida Bar No. 106581 Attorney for Defendant and Counter-Plaintiff Peck & Peck, P.A. 5200 Tamiami Trail North, Suite 101 Naples, Florida 34103 Telephone: 239-263-981 I Facsimile: 239-263-9818 Email: Meredith@peckandpecklaw.com For service of pleadings and documents: service @peckandpecklaw.comExnibit A Bo se 239.697.1886 RABOR.com 1486 Pina. Road R ZA96077128 fic wevuNepleaAreacom — NeckarFL Ses: ples Araboatd of REALIORS® a Your Leading Resource for Business, MEDIATON RESOLUTION AGREEMENT Case #17-18A REALTOR® Michael Hughes VB. REALTOR® Jack Newby (eponcent Aig and Downing Frye Realty, Inc. Waterfront Realty Group, Ino. cesponcert s2eand {Compteinany REALTOR® Jeffrey Tlefenbach presconsent 12} and Keller Williams Elita Realty 2 messondene 14) The undersigned, as Members of the Naples Area Board of REALTORS® ("NABOR") and pursuant to the mediation guidelines incorporated Into NABOR's professional standards procedures, have participated In and agree to the following resolution: 1) All partles agree that Keller Willlams /Jaffrey Tlefenbach Is dismissed and removed from this arbitration request. 2) Downlng Frye Realty/Mike Hughes agreas to Instruct Attorney James Dat! to disperse the commission in the amount Of Sep TeD to Waterfront Reajty on of property located at 250 Robin Hood Circle; Naples, Frida, 6 980.00 sf pat 3) Kyte McLaughlin agrees to legally renova Danan Dalsing from the lease on property tocated at 858 5! Ave South, Sulte 204, Naples Florida Danan Delsing agrees to make no attempt to contact any person named on Waterfront Realty's lead generation list unless lead contacts him directly, The undersigned agree to be bound by the above resolution and waive any and alt future rights to submit the dispute to arbitration before the Professional Standards Committee of NABOR or to Iitigate the matter. We further hold NABOR harmless, and expressly walve any and all lability of NABOR or any claim that we have against NABOR arising out of the manner in which NABOR conducted the mediation, or the resolution of the dispute reached as a result of mediation procedures. Further, If the award {3 judicially enforced, the non-complying party agrees to relmburse the other party for court costs and reasonable attorney's fees, Ll tt Wine r fof 12 Data Leal 7 4) Date SJae/ [Ft ate EL pinlic— enon Taenfack C D As a Mediator of NABOR, do attest that ! was present during the mediation process and that the above resolution agreement was entered into by the parties to the dispute. : sf2e/2 Date 7 7 ‘Grenda Florett!, Mediator