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Filing # 177963851 E-Filed 07/21/2023 01:23:01 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT,
IN AND FOR MIAMI-DADE, FLORIDA
Case No.: 2023-001359-CA-01
AMERIMET CORP.,
a Florida corporation,
Plaintiff,
v.
ALPHA ALUMINUM, INC.,
a Florida corporation,
Defendants,
___________________________________/
ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, Defendant, ALPHA ALUMINUM, INC, (hereinafter “Defendant”), by
and through the undersigned attorney, and hereby files this Answer and Affirmative Defenses to
Plaintiff’s Complaint filed on 02/15/2023, and in support thereof, states as follows:
1. Admit
2. Admit
3. Admit
4. Admit
Count I Breach of Contract Under Purchase Order 42112
5. Admit
6. Denied as framed.
7. Without knowledge, therefore denied.
8. Without knowledge, therefore denied.
9. Denied as framed.
10. Denied
11. Denied
12. Denied
13. Denied
14. Denied
15. Without knowledge, therefore denied.
16. Denied.
Count II Breach of Contract Under Purchase Order Jeff Verbal 6-17-22
17. Admit
18. Admit
19. Denied as framed.
20. Without knowledge, therefore denied.
21. Without knowledge, therefore denied.
22. Denied as framed.
23. Denied
24. Denied
25. Denied
26. Denied
27. Denied
28. Without knowledge, therefore denied.
29. Denied.
Count III Goods Sold and Delivered Invoice #45026
30. Denied
31. Without knowledge, therefore denied.
32. Denied
Count IV Open Account
33. Denied
34. Without knowledge, therefore denied.
35. Denied
Count VI [sic] Unjust Enrichment (in the alternative)
36. Admit
37. Denied as framed.
38. Denied as framed.
39. Denied as framed.
40. Denied
Any and all allegations in the Amended Complaint not expressly responded to
hereinabove are denied.
AFFIRMATIVE DEFENSES
First Affirmative Defense is failure to state a cause of action. Florida’s UCC, specifically Section
672.708 provides for two (2) options for determining damages when a Buyer refuses goods. To
wit:
(1) Subject to subsection (2) and to the provisions of this chapter with respect to proof of
market price (s. 672.723), the measure of damages for nonacceptance or repudiation by the buyer
is the difference between the market price at the time and place for tender and the unpaid
contract price together with any incidental damages provided in this chapter (s. 672.710), but less
expenses saved in consequence of the buyer’s breach.
(2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as
good a position as performance would have done then the measure of damages is the profit
(including reasonable overhead) which the seller would have made from full performance by the
buyer, together with any incidental damages provided in this chapter (s. 672.710), due allowance
for costs reasonably incurred and due credit for payments or proceeds of resale.
In no instance under Florida’s UCC, or is even reflected in any of the Exhibits attached to
the Amended Complaint, is Plaintiff entitled to recover the full contract price PLUS retain
possession of the products not accepted.
Second Affirmative Defense is failure to state a cause of action for attorney’s fees as Plaintiff has
neither attached a contract nor cited to a statute entitling Plaintiff to same. Xanadu of Cocoa
Beach, Inc. v. Lenz, 504 So.2d 518, 12 Fla. L. Weekly 874 (Fla. App. 1987). Plaintiff has
attached Exhibit “E”, purportedly to be some alleged “contract” in support of Plaintiff’s claims
for attorney’s fees. Exhibit “E” is not signed by either party. Exhibit “E” is not dated. Exhibit
“E” does not contain any language identifying its application to any of the transactions between
the parties subject to this action. As Exhibit “E” is not in compliance with Fla. Stat. 672.201 as it
is not signed by the party against whom enforcement is sought, Plaintiff is barred from enforcing
any portion of Exhibit “E” not supported/evidenced by the conduct of the parties and/or other
document/instrument executed by Defendants reflecting Exhibit “E” and or any portion thereof
was part the agreement between the parties.
Third Affirmative Defense is failure to state a cause of action as the Exhibits contradict each
other and the allegations of the Amended Complaint. Exhibit “C” attached to the Amended
Complaint purports to incorporate the invoice identified as Exhibit “A” in Count I, [para. 6] to
wit: #42122, in support of damages (albeit duplicative) into Count III, however Exhibit “C”
reflects the invoice identified as #42122 as being dated 04.25.2022 in the amount of $59,182.20
for 15,372 lbs of aluminum at 3.85/lb as opposed to Exhibit “A” that reflects the invoice
identified as #42122 as being dated 04.21.2022 in the amount of $57,750.00 for 15,000 lbs of
aluminum for $3.85/lb. See paras. 12, 13, and 30 of Amended Complaint.
Third Affirmative Defense is setoff. In no instance under Florida’s UCC or is even reflected in
any of the Exhibits attached to the Amended Complaint, is Plaintiff entitled to recover the full
contract price PLUS retain possession of the products not accepted.
Fourth Affirmative Defense is failure to comply with conditions precedent as Plaintiff failed to
cure the product nonconformity per the terms of Exhibit “C” attached to the Amended Complaint
and failed to deliver a product in conformance with the alleged contracts.
Fifth Affirmative Defense is failure to comply with Rule 1.130 Fla.R.Civ.P., in that Plaintiff has
failed to attach the Customer's Credit Application, Terms of Credit or the Notification of
Acceptance to the Amended Complaint as reflected in the first sentence of Exhibit “C” and
purported to be the “entire understanding and agreement between the Customer and Americorp.”
Sixth Affirmative Defense is the Rule of Completeness. As Plaintiff has failed to attach the
Customer's Credit Application, Terms of Credit or the Notification of Acceptance to the
Amended Complaint and the first sentence of Exhibit “C” indicates those documents control
over the terms of the invoices attached, Plaintiff has failed to attach the full and complete
contract upon which Plaintiff’s claims are based. As such, Plaintiff has failed to state a cause of
action for Counts I and II as well as failed to comply with Rule 1.130 Fla.R.Civ.P.
Seventh Affirmative Defense is failure to mitigate damages. As Plaintiff has failed to provide
conforming product per the terms of the invoices attached and failed to cure such
nonconformities, Plaintiff is not entitled to the full contract price claimed as damages and any
amount that may be awarded to Plaintiff should be offset by Plaintiff’s failure to mitigate its own
damages.
Eighth Affirmative Defense is breach of contract. Plaintiff was first in time to breach the contract
by failing to provide conforming product and thereafter failing to cure.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 21st day of July, 2023, a true and correct copy of the
foregoing has been furnished via Florida E-portal electronic service and/or email transmission to
the following:
Ronald Klein, Esq.
Klein and Fortune, P.A.
7777 Davie Road Extension, Ste. 301 B
Hollywood, FL 33024
Phone: 954-986-8822
Email: rklein@kleinandfortune.com
Attorney for Plaintiff
Jason Klein, Esq
Bales Sommers & Klein, P.A.
2 S. Biscayne Blvd, Ste. 1881
Miami, FL 33131
Phone: 305-372-1200
jklein@bsklawyers.com
rbalesjr@bsklawyers.com
Co-Counsel for Plaintiff
/s/Jeffrey W. Smith
By:
Jennifer A. Englert, Esq.
Florida Bar No. 180297
Jeffrey W. Smith, Esq.
Florida Bar No. 106191
THE ORLANDO LAW GROUP, PL
12301 Lake Underhill Rd., Suite 213
Orlando, Florida 32828
Tel. (407) 512-4394
Fax (407) 955-4654
E-Mail: JEnglert@TheOrlandoLawGroup.com
JSmith@TheOrlandoLawGroup.com
Secondary E-Mail:
cneedham@TheOrlandoLawGroup.com
Attorneys for Defendant Alpha Aluminum, Inc.
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Filing # 177963851 E-Filed 07/21/2023 01:23:01 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE, FLORIDA Case No.: 2023-001359-CA-01 AMERIMET CORP., a Florida corporation, Plaintiff, v. ALPHA ALUMINUM, INC., a Florida corporation, Defendants, ___________________________________/ ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Defendant, ALPHA ALUMINUM, INC, (hereinafter “Defendant”), by and through the undersigned attorney, and hereby files this Answer and Affirmative Defenses to Plaintiff’s Complaint filed on 02/15/2023, and in support thereof, states as follows: 1. Admit 2. Admit 3. Admit 4. Admit Count I Breach of Contract Under Purchase Order 42112 5. Admit 6. Denied as framed. 7. Without knowledge, therefore denied. 8. Without knowledge, therefore denied. 9. Denied as framed. 10. Denied 11. Denied 12. Denied 13. Denied 14. Denied 15. Without knowledge, therefore denied. 16. Denied. Count II Breach of Contract Under Purchase Order Jeff Verbal 6-17-22 17. Admit 18. Admit 19. Denied as framed. 20. Without knowledge, therefore denied. 21. Without knowledge, therefore denied. 22. Denied as framed. 23. Denied 24. Denied 25. Denied 26. Denied 27. Denied 28. Without knowledge, therefore denied. 29. Denied. Count III Goods Sold and Delivered Invoice #45026 30. Denied 31. Without knowledge, therefore denied. 32. Denied Count IV Open Account 33. Denied 34. Without knowledge, therefore denied. 35. Denied Count VI [sic] Unjust Enrichment (in the alternative) 36. Admit 37. Denied as framed. 38. Denied as framed. 39. Denied as framed. 40. Denied Any and all allegations in the Amended Complaint not expressly responded to hereinabove are denied. AFFIRMATIVE DEFENSES First Affirmative Defense is failure to state a cause of action. Florida’s UCC, specifically Section 672.708 provides for two (2) options for determining damages when a Buyer refuses goods. To wit: (1) Subject to subsection (2) and to the provisions of this chapter with respect to proof of market price (s. 672.723), the measure of damages for nonacceptance or repudiation by the buyer is the difference between the market price at the time and place for tender and the unpaid contract price together with any incidental damages provided in this chapter (s. 672.710), but less expenses saved in consequence of the buyer’s breach. (2) If the measure of damages provided in subsection (1) is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer, together with any incidental damages provided in this chapter (s. 672.710), due allowance for costs reasonably incurred and due credit for payments or proceeds of resale. In no instance under Florida’s UCC, or is even reflected in any of the Exhibits attached to the Amended Complaint, is Plaintiff entitled to recover the full contract price PLUS retain possession of the products not accepted. Second Affirmative Defense is failure to state a cause of action for attorney’s fees as Plaintiff has neither attached a contract nor cited to a statute entitling Plaintiff to same. Xanadu of Cocoa Beach, Inc. v. Lenz, 504 So.2d 518, 12 Fla. L. Weekly 874 (Fla. App. 1987). Plaintiff has attached Exhibit “E”, purportedly to be some alleged “contract” in support of Plaintiff’s claims for attorney’s fees. Exhibit “E” is not signed by either party. Exhibit “E” is not dated. Exhibit “E” does not contain any language identifying its application to any of the transactions between the parties subject to this action. As Exhibit “E” is not in compliance with Fla. Stat. 672.201 as it is not signed by the party against whom enforcement is sought, Plaintiff is barred from enforcing any portion of Exhibit “E” not supported/evidenced by the conduct of the parties and/or other document/instrument executed by Defendants reflecting Exhibit “E” and or any portion thereof was part the agreement between the parties. Third Affirmative Defense is failure to state a cause of action as the Exhibits contradict each other and the allegations of the Amended Complaint. Exhibit “C” attached to the Amended Complaint purports to incorporate the invoice identified as Exhibit “A” in Count I, [para. 6] to wit: #42122, in support of damages (albeit duplicative) into Count III, however Exhibit “C” reflects the invoice identified as #42122 as being dated 04.25.2022 in the amount of $59,182.20 for 15,372 lbs of aluminum at 3.85/lb as opposed to Exhibit “A” that reflects the invoice identified as #42122 as being dated 04.21.2022 in the amount of $57,750.00 for 15,000 lbs of aluminum for $3.85/lb. See paras. 12, 13, and 30 of Amended Complaint. Third Affirmative Defense is setoff. In no instance under Florida’s UCC or is even reflected in any of the Exhibits attached to the Amended Complaint, is Plaintiff entitled to recover the full contract price PLUS retain possession of the products not accepted. Fourth Affirmative Defense is failure to comply with conditions precedent as Plaintiff failed to cure the product nonconformity per the terms of Exhibit “C” attached to the Amended Complaint and failed to deliver a product in conformance with the alleged contracts. Fifth Affirmative Defense is failure to comply with Rule 1.130 Fla.R.Civ.P., in that Plaintiff has failed to attach the Customer's Credit Application, Terms of Credit or the Notification of Acceptance to the Amended Complaint as reflected in the first sentence of Exhibit “C” and purported to be the “entire understanding and agreement between the Customer and Americorp.” Sixth Affirmative Defense is the Rule of Completeness. As Plaintiff has failed to attach the Customer's Credit Application, Terms of Credit or the Notification of Acceptance to the Amended Complaint and the first sentence of Exhibit “C” indicates those documents control over the terms of the invoices attached, Plaintiff has failed to attach the full and complete contract upon which Plaintiff’s claims are based. As such, Plaintiff has failed to state a cause of action for Counts I and II as well as failed to comply with Rule 1.130 Fla.R.Civ.P. Seventh Affirmative Defense is failure to mitigate damages. As Plaintiff has failed to provide conforming product per the terms of the invoices attached and failed to cure such nonconformities, Plaintiff is not entitled to the full contract price claimed as damages and any amount that may be awarded to Plaintiff should be offset by Plaintiff’s failure to mitigate its own damages. Eighth Affirmative Defense is breach of contract. Plaintiff was first in time to breach the contract by failing to provide conforming product and thereafter failing to cure. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 21st day of July, 2023, a true and correct copy of the foregoing has been furnished via Florida E-portal electronic service and/or email transmission to the following: Ronald Klein, Esq. Klein and Fortune, P.A. 7777 Davie Road Extension, Ste. 301 B Hollywood, FL 33024 Phone: 954-986-8822 Email: rklein@kleinandfortune.com Attorney for Plaintiff Jason Klein, Esq Bales Sommers & Klein, P.A. 2 S. Biscayne Blvd, Ste. 1881 Miami, FL 33131 Phone: 305-372-1200 jklein@bsklawyers.com rbalesjr@bsklawyers.com Co-Counsel for Plaintiff /s/Jeffrey W. Smith By: Jennifer A. Englert, Esq. Florida Bar No. 180297 Jeffrey W. Smith, Esq. Florida Bar No. 106191 THE ORLANDO LAW GROUP, PL 12301 Lake Underhill Rd., Suite 213 Orlando, Florida 32828 Tel. (407) 512-4394 Fax (407) 955-4654 E-Mail: JEnglert@TheOrlandoLawGroup.com JSmith@TheOrlandoLawGroup.com Secondary E-Mail: cneedham@TheOrlandoLawGroup.com Attorneys for Defendant Alpha Aluminum, Inc.