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Filing # 126788998 E-Filed 05/13/2021 05:31:02 PM
IN THE CIRCUIT COURT OF THE 17"
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
CASE NO.: CACE-21-007714 (09)
WAYNE REES and
CARMEN PALACIO,
Plaintiffs,
V.
SUNBLEST TOWNHOMES
HOMEOWNERS ASSOCIATION, INC.,
Defendant.
/ (1050.42479)
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
Defendant, SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC., by
and through its undersigned attorneys and pursuant to Florida law and the Florida Rules of Civil
Procedure, files this Answer, Affirmative Defenses, and Demand for Jury Trial in response to
Plaintiffs’ Complaint, and in support thereof states as follows:
INTRODUCTION
Defendant denies all allegations and implications in this paragraph.
JURISDICTION AND VENUE
Defendant denies all allegations and implications in this paragraph.
3 Defendant denies all allegations and implications in this paragraph.
4 Defendant is without knowledge as to the allegations in this paragraph; therefore, it
is denied and strict proof is demanded thereof.
5 Defendant is without knowledge as to the allegations in this paragraph; therefore, it
is denied and strict proof is demanded thereof.
6. Defendant admits that an entity known as SUNBLEST TOWNHOMES
HOMEOWNERS ASSOCIATION, INC. exists. All other allegations and implications are denied.
#** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/13/2021 05:31:01 PM.**#*
CASE NO.: CACE-21-007714 (09)
Page 2
GENERAL ALLEGATIONS
7
Defendant is without knowledge as to the allegations in this paragraph; therefore, it
is denied and strict proof is demanded thereof.
8 Defendant admits that an entity known as SUNBLEST TOWNHOMES
HOMEOWNERS ASSOCIATION, INC. exists and that the documents attached to the Complaint
as “Exhibit A” are labeled “Declaration of Covenants, Conditions, and Restrictions” and “By-Laws
of Sunblest Townhomes Homeowners Association, Inc.” respectively. Both documents speak for
themselves. All other allegations and implications are denied.
9 Defendant admits that an entity known as SUNBLEST TOWNHOMES
HOMEOWNERS ASSOCIATION, INC. exists. Defendant’s property interests and duties are
limited to those set forth in its governing documents and those prescribed by Florida law, both of
which speak for themselves. All other allegations and implications in this paragraph are denied.
10. Defendant denies all allegations and implications in this paragraph.
11 Defendant denies all allegations and implications in this paragraph.
12. Defendant denies all allegations and implications in this paragraph.
13. All allegations and implications in this paragraph are denied. Defendant’s property
interests and duties are limited to those set forth in its governing documents and those prescribed by
Florida law, both of which speak for themselves.
14. All allegations and implications in this paragraph are denied. Defendant’s property
interests and duties are limited to those set forth in its governing documents and those prescribed by
Florida law, both of which speak for themselves.
15. Defendant denies all allegations and implications in this paragraph.
16. Defendant denies all allegations and implications in this paragraph.
CASE NO.: CACE-21-007714 (09)
Page 3
COUNT I~ BREACH OF CONTRACT
17. Defendant incorporates its responses to paragraphs one through sixteen (1-16) above
as if set forth fully herein.
18. Defendant denies all allegations and implications in this paragraph.
19. Defendant denies all allegations and implications in this paragraph. The documents
attached to the Complaint as “Exhibit A” are labeled “Declaration of Covenants, Conditions, and
Restrictions” and “By-Laws of Sunblest Townhomes Homeowners Association, Inc.” respectively.
Both documents speak for themselves. All other allegations and implications are denied.
20. Defendant denies all allegations and implications in this paragraph.
21 Defendant denies all allegations and implications in this paragraph.
22. Defendant denies all allegations and implications in this paragraph.
23. Defendant denies all allegations and implications in this paragraph.
24. Defendant denies all allegations and implications in this paragraph.
Defendant denies all allegations and implications contained within Plaintiffs’
WHEREFORE clause.
COUNT II —- NEGLIGENCE
25. Defendant incorporates its responses to paragraphs one through sixteen (1-16) above
as if set forth fully herein.
26. Defendant denies all allegations and implications in this paragraph.
27. All allegations and implications in this paragraph are denied. Defendant’s property
interests and duties are limited to those set forth in its governing documents and those prescribed by
Florida law, both of which speak for themselves.
28. Defendant denies all allegations and implications in this paragraph.
29. Defendant denies all allegations and implications in this paragraph.
CASE NO.: CACE-21-007714 (09)
Page 4
30. Defendant denies all allegations and implications in this paragraph.
Defendant denies all allegations and implications contained within Plaintiffs’
WHEREFORE clause.
GENERAL DENIAL
Any allegations or implications set forth in Plaintiffs’ Complaint or any Amended
Complaints not explicitly admitted herein are expressly denied.
AFFIRMATIVE DEFENSES
Defendant further responds to the allegations in Plaintiffs’ Complaint by way of the
following Affirmative Defenses:
1 That Defendant is entitled to setoff for all collateral sources and/or benefits
recognized under Florida law or any partial or total satisfaction of the damages sued for under
sections 46.015, 768.041, and/or 768.31 of Florida’s Statutes.
2. That Defendant is entitled to the Tort Reform Act limitations of liability and
damages as established by the Florida Tort Reform Act.
3 That there was no notice either actual or constructive as it relates to this
Defendant, or that whatever notice was provided, if any, was insufficient, as such there can be no
liability against this Defendant.
4 Plaintiffs’ recovery, if any, for alleged damages to personal property must be
limited to the difference in fair market value of the allegedly damaged channels immediately
prior to the damage and the fair market value of same immediately following the alleged
damage, or, alternatively, costs of repairing the channels to their condition immediately prior to
the alleged damage. The original purchase price or cost of replacement goods, is not recoverable
pursuant to Florida law upon any theories advanced by Plaintiffs.
CASE NO.: CACE-21-007714 (09)
Page 5
5 Defendant affirmatively alleges that it has fulfilled its duties, if any, to Plaintiffs
and that Plaintiffs’ damages alleged in this suit were caused in whole or in part by Plaintiffs’
negligence and/or by the breach of their duties and should be reduced or extinguished
accordingly.
6. That Plaintiffs’ damages were caused in whole or in part by third parties for
whose actions Defendant is not vicariously, secondarily, or passively responsible or liable.
7 That Defendant is entitled to a determination of comparative fault of other entities
pursuant to section 768.81(3) of Florida’s Statutes and Fabre v. Marin, 623 So.2d 1182
(Fla.1993), and an appropriate reduction in its own liability. Pursuant to Nash v. Wells Fargo
Guard Service, Inc., 768 So.2d 1262 (Fla.1996), this Defendant may seek amendment to identify
such other non-parties or persons as they become known and with due notice to Plaintiffs.
8 That Plaintiffs’ claims against Defendant, if any, are barred in whole or in part by
Plaintiffs’ failure to mitigate any damages allegedly sustained.
9. Defendant affirmatively alleges that given the course of conduct, Plaintiffs’
claims are barred by the doctrines of waiver and estoppel.
Defendant specifically reserves the right to add and/or amend its affirmative defenses,
including to identify any potential non-party tortfeasor, should further discovery and investigation
show they are applicable.
WHEREFORE, Defendant, SUNBLEST TOWNHOMES HOMEOWNERS
ASSOCIATION, INC., having fully answered Plaintiffs’ Complaint, hereby demands judgment
on its Affirmative Defenses and requests any other relief that this Court deems just and proper.
DEMAND FOR TRIAL BY JURY
Defendant, SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC.,
demands a trial by jury on all matters so triable as a matter of right.
CASE NO.: CACE-21-007714 (09)
Page 6
CERTIFICATE OF SERVICE
ICERTIFY that the foregoing document has been furnished to: Marc A. Wites, Esq. and
Maxwell A. Erd, Esq., WITES LAW FIRM, Aftorneys for Plaintiffs, 4400 North Federal
Highway, Lighthouse Point, FL 33064, mwites@witeslaw.com and pleadings@witeslaw.com
by e-mail and/or e-Portal on the 13th day of May, 2021.
GAEBE, MULLEN, ANTONELLI & DIMATTEO
Attorneys for Defendant
1818 S. Australian Avenue, Suite 102
West Palm Beach, FL 33409
Telephone: (561) 832-6788; Fax: (561) 835-1035
By: /s/Erick Rodriguez
ERICK RODRIGUEZ, FL Bar 1022247
erodriguez@gaebemullen.com
ttyson aebemullen.com
AGNIESZKA CHIAPPERINI, FL Bar 1010199
achiapperini@gaebemullen.com
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Filing # 126788998 E-Filed 05/13/2021 05:31:02 PM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-21-007714 (09) WAYNE REES and CARMEN PALACIO, Plaintiffs, V. SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC., Defendant. / (1050.42479) DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES Defendant, SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC., by and through its undersigned attorneys and pursuant to Florida law and the Florida Rules of Civil Procedure, files this Answer, Affirmative Defenses, and Demand for Jury Trial in response to Plaintiffs’ Complaint, and in support thereof states as follows: INTRODUCTION Defendant denies all allegations and implications in this paragraph. JURISDICTION AND VENUE Defendant denies all allegations and implications in this paragraph. 3 Defendant denies all allegations and implications in this paragraph. 4 Defendant is without knowledge as to the allegations in this paragraph; therefore, it is denied and strict proof is demanded thereof. 5 Defendant is without knowledge as to the allegations in this paragraph; therefore, it is denied and strict proof is demanded thereof. 6. Defendant admits that an entity known as SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC. exists. All other allegations and implications are denied. #** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 05/13/2021 05:31:01 PM.**#* CASE NO.: CACE-21-007714 (09) Page 2 GENERAL ALLEGATIONS 7 Defendant is without knowledge as to the allegations in this paragraph; therefore, it is denied and strict proof is demanded thereof. 8 Defendant admits that an entity known as SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC. exists and that the documents attached to the Complaint as “Exhibit A” are labeled “Declaration of Covenants, Conditions, and Restrictions” and “By-Laws of Sunblest Townhomes Homeowners Association, Inc.” respectively. Both documents speak for themselves. All other allegations and implications are denied. 9 Defendant admits that an entity known as SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC. exists. Defendant’s property interests and duties are limited to those set forth in its governing documents and those prescribed by Florida law, both of which speak for themselves. All other allegations and implications in this paragraph are denied. 10. Defendant denies all allegations and implications in this paragraph. 11 Defendant denies all allegations and implications in this paragraph. 12. Defendant denies all allegations and implications in this paragraph. 13. All allegations and implications in this paragraph are denied. Defendant’s property interests and duties are limited to those set forth in its governing documents and those prescribed by Florida law, both of which speak for themselves. 14. All allegations and implications in this paragraph are denied. Defendant’s property interests and duties are limited to those set forth in its governing documents and those prescribed by Florida law, both of which speak for themselves. 15. Defendant denies all allegations and implications in this paragraph. 16. Defendant denies all allegations and implications in this paragraph. CASE NO.: CACE-21-007714 (09) Page 3 COUNT I~ BREACH OF CONTRACT 17. Defendant incorporates its responses to paragraphs one through sixteen (1-16) above as if set forth fully herein. 18. Defendant denies all allegations and implications in this paragraph. 19. Defendant denies all allegations and implications in this paragraph. The documents attached to the Complaint as “Exhibit A” are labeled “Declaration of Covenants, Conditions, and Restrictions” and “By-Laws of Sunblest Townhomes Homeowners Association, Inc.” respectively. Both documents speak for themselves. All other allegations and implications are denied. 20. Defendant denies all allegations and implications in this paragraph. 21 Defendant denies all allegations and implications in this paragraph. 22. Defendant denies all allegations and implications in this paragraph. 23. Defendant denies all allegations and implications in this paragraph. 24. Defendant denies all allegations and implications in this paragraph. Defendant denies all allegations and implications contained within Plaintiffs’ WHEREFORE clause. COUNT II —- NEGLIGENCE 25. Defendant incorporates its responses to paragraphs one through sixteen (1-16) above as if set forth fully herein. 26. Defendant denies all allegations and implications in this paragraph. 27. All allegations and implications in this paragraph are denied. Defendant’s property interests and duties are limited to those set forth in its governing documents and those prescribed by Florida law, both of which speak for themselves. 28. Defendant denies all allegations and implications in this paragraph. 29. Defendant denies all allegations and implications in this paragraph. CASE NO.: CACE-21-007714 (09) Page 4 30. Defendant denies all allegations and implications in this paragraph. Defendant denies all allegations and implications contained within Plaintiffs’ WHEREFORE clause. GENERAL DENIAL Any allegations or implications set forth in Plaintiffs’ Complaint or any Amended Complaints not explicitly admitted herein are expressly denied. AFFIRMATIVE DEFENSES Defendant further responds to the allegations in Plaintiffs’ Complaint by way of the following Affirmative Defenses: 1 That Defendant is entitled to setoff for all collateral sources and/or benefits recognized under Florida law or any partial or total satisfaction of the damages sued for under sections 46.015, 768.041, and/or 768.31 of Florida’s Statutes. 2. That Defendant is entitled to the Tort Reform Act limitations of liability and damages as established by the Florida Tort Reform Act. 3 That there was no notice either actual or constructive as it relates to this Defendant, or that whatever notice was provided, if any, was insufficient, as such there can be no liability against this Defendant. 4 Plaintiffs’ recovery, if any, for alleged damages to personal property must be limited to the difference in fair market value of the allegedly damaged channels immediately prior to the damage and the fair market value of same immediately following the alleged damage, or, alternatively, costs of repairing the channels to their condition immediately prior to the alleged damage. The original purchase price or cost of replacement goods, is not recoverable pursuant to Florida law upon any theories advanced by Plaintiffs. CASE NO.: CACE-21-007714 (09) Page 5 5 Defendant affirmatively alleges that it has fulfilled its duties, if any, to Plaintiffs and that Plaintiffs’ damages alleged in this suit were caused in whole or in part by Plaintiffs’ negligence and/or by the breach of their duties and should be reduced or extinguished accordingly. 6. That Plaintiffs’ damages were caused in whole or in part by third parties for whose actions Defendant is not vicariously, secondarily, or passively responsible or liable. 7 That Defendant is entitled to a determination of comparative fault of other entities pursuant to section 768.81(3) of Florida’s Statutes and Fabre v. Marin, 623 So.2d 1182 (Fla.1993), and an appropriate reduction in its own liability. Pursuant to Nash v. Wells Fargo Guard Service, Inc., 768 So.2d 1262 (Fla.1996), this Defendant may seek amendment to identify such other non-parties or persons as they become known and with due notice to Plaintiffs. 8 That Plaintiffs’ claims against Defendant, if any, are barred in whole or in part by Plaintiffs’ failure to mitigate any damages allegedly sustained. 9. Defendant affirmatively alleges that given the course of conduct, Plaintiffs’ claims are barred by the doctrines of waiver and estoppel. Defendant specifically reserves the right to add and/or amend its affirmative defenses, including to identify any potential non-party tortfeasor, should further discovery and investigation show they are applicable. WHEREFORE, Defendant, SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC., having fully answered Plaintiffs’ Complaint, hereby demands judgment on its Affirmative Defenses and requests any other relief that this Court deems just and proper. DEMAND FOR TRIAL BY JURY Defendant, SUNBLEST TOWNHOMES HOMEOWNERS ASSOCIATION, INC., demands a trial by jury on all matters so triable as a matter of right. CASE NO.: CACE-21-007714 (09) Page 6 CERTIFICATE OF SERVICE ICERTIFY that the foregoing document has been furnished to: Marc A. Wites, Esq. and Maxwell A. Erd, Esq., WITES LAW FIRM, Aftorneys for Plaintiffs, 4400 North Federal Highway, Lighthouse Point, FL 33064, mwites@witeslaw.com and pleadings@witeslaw.com by e-mail and/or e-Portal on the 13th day of May, 2021. GAEBE, MULLEN, ANTONELLI & DIMATTEO Attorneys for Defendant 1818 S. Australian Avenue, Suite 102 West Palm Beach, FL 33409 Telephone: (561) 832-6788; Fax: (561) 835-1035 By: /s/Erick Rodriguez ERICK RODRIGUEZ, FL Bar 1022247 erodriguez@gaebemullen.com ttyson aebemullen.com AGNIESZKA CHIAPPERINI, FL Bar 1010199 achiapperini@gaebemullen.com