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Filing # 175630871 E-Filed 06/19/2023 03:08:07 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
HODGES BROTHERS, INC., CASE NO.: 2018-CA-4003
Plaintiffs,
vs.
GAIL STEDRONSKY BOVE, as Trustee of the
CLARDY A. MALUGEN FAMILY TRUST, and
CLARDY A. MALUGEN, individually,
Defendants.
__________________________________/
ANSWER AND AFFIRMATIVE DEFENSES TO
THIRD AMENDED COMPLAINT AND COUNTERCLAIM
COMES NOW, Defendant, Gail Stedronsky Bove, as Trustee of the Clardy A. Malugen
Family Trust, by and through its undersigned counsel, hereby files its Answer and Affirmative
Defenses to the Third Amended Complaint and files its Counterclaim, and states in support thereof:
ANSWER
1. Denied.
2. Admitted.
3. Without knowledge, therefore denied.
4. Admitted.
5. Admitted.
6. Admitted.
7. Admitted.
8. Admitted.
9. Admitted that Malugen transferred the Property to the Trust.
10. Denied.
11. Denied.
Page 1 of 18
12. Denied.
13. Without knowledge, therefore denied.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
20. Admitted.
21. Without knowledge, therefore denied.
22. Without knowledge, therefore denied.
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
29. Without knowledge, therefore denied.
30. Without knowledge, therefore denied.
31. Denied.
32. Denied.
33. Denied.
34. Denied, Plaintiff failed to serve a Notice to Owner.
Page 2 of 18
35. Without knowledge, therefore denied.
Count I-Reformation and Foreclosure of Construction Lien Against Malugen
As this Count not against the Trustee, the Trustee is not responding to this count
36. Not applicable-Denied.
37. Not applicable-Denied.
38. Not applicable-Denied.
39. Not applicable-Denied.
40. Not applicable-Denied.
41. Not applicable-Denied.
42. Not applicable-Denied.
43. Not applicable-Denied.
44. Not applicable-Denied.
45. Not applicable-Denied.
46. Not applicable-Denied.
47. Not applicable-Denied.
48. Not applicable-Denied.
49. Not applicable-Denied.
50. Not applicable-Denied.
51. Not applicable-Denied.
52. Not applicable-Denied.
Count II- Foreclosure of Construction Lien Against the Trustee
53. Admitted the Plaintiff is pursuing a claim against Trustee, otherwise denied.
54. No response required, denied.
Page 3 of 18
55. Trustee re-alleges its responses to paragraphs 1-35 above.
56. Denied and re-alleges responses to paragraphs 9-19, and 21-28.
57. Without knowledge, therefore denied.
58. Without knowledge, therefore denied.
59. Denied.
60. Denied.
61. Denied.
62. Admitted.
63. Denied.
64. Denied.
65. Denied, Plaintiff failed to serve a Notice to Owner and Contractor’s Final Payment
Affidavit on Trustee.
66. Denied.
67. Denied.
68. Denied.
Count III- Breach of the Agreement Against Malugen
As this Count not against the Trustee, the Trustee is not responding to this Count
69. Not Applicable-Denied.
70. Not Applicable-Denied.
71. Not Applicable-Denied.
72. Not Applicable-Denied.
73. Not Applicable-Denied.
Page 4 of 18
Count IV- Breach of the Implied-in-Fact Contract Against the Trust
74. Denied.
75. Trustee re-alleges its responses to paragraphs 1-35, 40, and 58.
76. Denied.
77. Denied.
78. Denied.
79. Denied.
80. Denied.
81. Denied.
Count V-Account Stated Against Defendants
82. Denied
83. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58.
84. Denied.
85. Denied.
86. Denied.
Count VI- Open Account Against Defendants
87. Denied.
88. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58.
89. Denied.
Count VII - Quantum Meruit Against Defendants
90. Denied.
91. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58.
92. Denied.
Page 5 of 18
93. Denied.
94. Denied.
95. Denied.
Count VIII – Claim of Fraud or Collusion Against Defendants
96. Denied.
97. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58.
98. Denied.
99. Denied.
100. Denied.
101. Denied.
102. Denied.
Count IX – Claim for Declaratory Relief Against Defendants
103. Denied.
104. Defendant re-alleges its responses to paragraphs 1-35.
105. Admitted.
106. Admitted.
107. Denied that Plaintiff is entitled to foreclose the Claim of Lien and that Plaintiff was
not required to Serve a Notice to Owner.
108. Denied.
109. Denied.
110. Denied.
111. Denied.
112. Admitted.
Page 6 of 18
Count X – Quiet Title Action
113. Denied.
114. Admitted.
115. Defendant re-alleges its responses to paragraphs 1-35.
116. Denied.
117. Denied.
118. Denied.
119. Denied.
120. Denied.
AFFIRMATIVE DEFENSES
First Affirmative Defense
Although Count I is not directly directed to Trustee, it directly affects Trustee as it seeks
to foreclose a lien against Trustee’s real property. Plaintiff fails to state a cause of action for
Reformation. Reformation is appropriate for contracts and agreements between parties. See Ayers
v. Thompson, 536 So.2d 1151, 1154 (Fla. 1st DCA 1988)( reformation only corrects the defective
written instrument so that it accurately reflects the true terms of the agreement actually reached).
Plaintiff alone created the Claim of Lien and is solely liable for its creation. The general rule is
that a court of equity will not undertake to reform an instrument which is merely voluntary and
based upon no consideration. Burleson v. Brogdon, 364 So.2d 491, 493 (Fla. 1st DCA 1978),
appeal after remand, 389 So.2d 11 (Fla. 1st DCA 1980). Further, Plaintiff combined it with the
construction lien foreclosure action. These are two separate causes of action and must be pled
individually. "'Claims are separate and distinct if ‘they could support an independent action and
are not simply alternative theories of liability for the same wrong.’ '..." Household Fin. Corp. III
Page 7 of 18
v. Williams, 290 So.3d 508, 511 (Fla. 4th DCA 2020). Also, Plaintiff cannot recover attorney’s
fees for reformation. Id.
Second Affirmative Defense
As to Count II-Plaintiff fails to state a cause of action, as it failed to comply with Florida’s
Construction Lien Law, Ch. 713, Fla. Stat. Plaintiff failed to serve a Notice to Owner on Trustee
or any party per §713.18. The failure to serve the Notice to Owner is a complete defense to the
action. The Notice to Owner attached to the Third Amended Complaint does not comply with Ch.
713. Also, Plaintiff acknowledges it did not enter into a contract with the Trustee and was told the
Trust was the owner of the real property before commencing work. A valid contract is required to
support a Claim of Lien. “Under Florida law, a construction lien can arise only when a valid
contract exists between the parties.” Niehaus v. Big Ben's Tree Serv., Inc., 982 So.2d 1253, 1254
(Fla. 1st DCA 2008).
Third Affirmative Defense
As to Count II-Plaintiff’s own actions/inaction are the cause of Plaintiff’s damages for
which Trustee is not liable. Plaintiff acknowledges it did not enter into a contract with the Trustee
and was told the Trust was the owner of the real property before commencing work, yet Plaintiff
continued without contacting the Trustee.
Fourth Affirmative Defense
As to Count IV, Plaintiff fails to state a cause of action for breach of implied-in-fact
contract. Plaintiff includes allegations of the express contract thereby negating the implied-in-fact
contract. “A contract implied in fact is one form of an enforceable contract; it is based on a tacit
promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their
words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact
Page 8 of 18
finder must examine and interpret the parties’ conduct to give definition to their unspoken
agreement.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385
(Fla. 4th DCA 1997). Plaintiff fails to allege any facts that would support the action.
Fifth Affirmative Defense
As to Counts V and VI, Plaintiff fails to state of cause of action. “Florida courts have long
recognized a cause of action for account stated, which requires (1) an agreement between the
parties as to the amount owed, (2) an agreement that the amount owed was due, and (3) an express
or implicit promise to pay that amount. Everett v. Webb Furniture Co., 98 Fla. 780, 124 So. 278,
279 (1929).” Ham v. Portfolio Recovery Assocs., LLC, 260 So.3d 450, 454 (Fla. 1st DAC 2018).
The elements of open account are: “(1) that a sales contract existed between the creditor
and debtor; (2) that the amount claimed by the creditor represents either the agreed on sales price
or the reasonable value of the goods delivered; and (3) that the goods were actually delivered."
Evans v. Delro Industries, Inc., 509 So.2d 1262, 1263 (Fla. 1st DCA 1987).
As stated in the Third Amended Complaint, there was no contract between the Trustee and
Hodges. Hodges cannot satisfy any of the elements to establish a claim for account stated or open
account. And as shown above, there was no contract between the Trustee and Hodges to meet the
elements of open account or account stated.
Sixth Affirmative Defense
As to Count X- Quiet Title Action, Plaintiff as a third-party lacks standing to challenge the
title to real property asking the Court to title real property in the name of another party who is not
challenging title to the real property. Plaintiff is not even asking the Court to title the real property
in its name because Plaintiff cannot demonstrate its right to title in the property. "Absent a default,
a court will not quiet title to property unless the record clearly demonstrates the right to title in the
Page 9 of 18
claimant and the invalidity of the contesting claim or potential claim. Atlantic Beach Improvement
Corp. v. Hall, 143 Fla. 778, 197 So. 464, 466 (1940)." Hinton v. Gold, 813 So. 2d 1057, 1059 (Fla.
4th DCA 2002). "A proper party to a suit to quiet title is one who claims to be the real or beneficial
owner of the property. See Chapter 65, Florida Statutes." Commodore Plaza at Century 21
Condominium Ass'n, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So.2d 783, 784 (Fla. 3rd DCA
1974).
Seventh Affirmative Defense
Plaintiff lacks standing to challenge the Trust documents and to challenge the deed.
"Standing is a threshold inquiry that must be addressed before considering the merits of a cause of
action. To have standing, a would-be litigant must show ‘a direct and articulable interest in the
controversy, which will be affected by the outcome of the litigation.’ " Cruz v. Cmty. Bank & Tr.
of Fla., 277 So. 3d 1095, 1097 (Fla. 5th DCA 2019) (quoting Centerstate Bank Cent. Fla., N.A. v.
Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012) ) (internal citations omitted). Bivins v. Douglas,
335 So.3d 1214, 1218 (Fla. 3d DCA 2021). Plaintiff ”… is not a party to those Trust documents
and therefore, lacks standing to challenge same. Castillo v. Deutsche Bank Nat'l Trust Co., 89
So.3d 1069 (Fla. 3d DCA 2012)..." Citibank, N.A. v. Olsak, 208 So.3d 227, 230 (Fla. 3d DCA
2016). Pursuant to §731.201(23), Fla. Sta., Plaintiff does not meet the definition of “Interest
Person” and has no interest in the Trust.
“To be entitled to recover in an ejectment suit, a plaintiff must show, among
other things, that he has a present right to possession. See Demps v. Hogan, 57 Fla.
60, 48 So. 998 (1909); Byrd v. Culver, 376 So.2d 41, 42 (Fla. 4th DCA 1979). A
present right to possession may be established in two ways: by demonstrating an
enforceable legal title or by showing prior possession (actual or constructive) of the
land. See Blitch v. Sapp, 142 Fla. 166, 194 So. 328, 329 (1940); Alford v. Sinclair,
55 So.2d 727, 729 (Fla.1951). When attempting to show enforceable legal title to a
particular parcel, a plaintiff may recover only upon the strength of his own title, not
the weaknesses of the defendant's title. See Blitch, 194 So. at 329. This means that
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even if the defendant has no title to the property at all, a plaintiff cannot recover
unless he can demonstrate he holds title and that it is valid. See Alford, 55 So.2d at
729; Blitch, 194 So. at 329–330.”
Davis v. Hinson, 67 So.3d 1107, 1110 (Fla. 1st DAC 2011).
"A proper party to a suit to quiet title is one who claims to be the real or beneficial owner
of the property. See Chapter 65, Florida Statutes." Commodore Plaza at Century 21 Condominium
Ass'n, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So.2d 783, 784 (Fla. 3rd DCA 1974).
"Absent equitable title as opposed to a mere equitable claim or interest the appellees had
no standing to maintain a suit to quiet title against the holder of the legal title. Atlantic Beach
Improvement Corp. v. Hall, 143 Fla. 778, 197 So. 464 (1940)." Welch v. Point of Americas
Condominium Apartments, Inc., 373 So.2d 60, 64 (Fla. 4th DCA 1979).
Eighth Affirmative Defense
Any recovery by Plaintiff must be setoff, reduced, abated, or apportioned to the extent any
other parties’ actions caused or contributed to Plaintiff's damages, if any.
Ninth Affirmative Defense
This action is governed by Fla. Stat. §768.81, and Plaintiffs’ recovery is diminishable by
that percentage of fault attributable to persons or entities other than Trustee. Thus, Trustee’s
liability, if any, is limited to its percentage of responsibility for Plaintiff’s damages, if any,
regardless of whether other persons or entities are named as co-defendants.
Tenth Affirmative Defense
Plaintiff’s claim is barred, or at least must be reduced, as a result of Plaintiff’s own material
breaches of the contract, including defective construction and causing damages to the home.
Page 11 of 18
Eleventh Affirmative Defense
Plaintiff fails to state a cause of action for declaratory judgment. Plaintiff is only seeking
legal advise for documents that speak for themselves and are not ambiguous or vague. Plaintiff is
the only party questioning the documents. In fact, Plaintiff is the party that created the Agreement,
the Notice to Owner, and the Claim of Lien and no other party is contesting the interpretation of
those documents. With respect to the other documents (Deed and Trust documents), Plaintiff is
not a party to those documents and lacks standing to challenge them.
It has long been held that with respect to actions for declaratory relief:
Before any proceeding for declaratory relief should be entertained it should be
clearly made to appear that there is a bona fide, actual, present practical need for
the declaration; that the declaration should deal with a present, ascertained or
ascertainable state of facts or present controversy as to a state of facts; that some
immunity, power, privilege or right of the complaining party is dependent upon the
facts or the law applicable to the facts; that there is some person or persons who
have, or reasonably may have an actual, present, adverse and antagonistic interest
in the subject matter, either in fact or law; that the antagonistic and adverse interests
are all before the court by proper process or class representation and that the relief
sought is not merely the giving of legal advice by the courts or the answer to
questions propounded from curiosity.
Ahearn v. Mayo Clinic, 180 So.3d 165, 174 (Fla. 1st DCA 2015) quoting May v.
Holley, 59 So.2d 636, 639 (Fla. 1952) (courts are not going to entertain hypothetical
facts or facts that are contingent in nature to address the possibility of a legal injury).
Twelfth Affirmative Defense
Plaintiff’s own actions/inaction are the cause of Plaintiff’s damages for which Trustee is
not liable, including but not limited to, being informed by Co-Defendant that Trustee was the
owner of the real property before Plaintiff commenced work. Plaintiff had the opportunity and
notice to contact Trustee.
Page 12 of 18
Thirteen Affirmative Defense
Plaintiff fails to state a cause of action for fraud or collusion against the Trustee. There are
no allegations against the Trustee. Plaintiff only alleges Co-Defendant Malugen committed all of
the alleged fraudulent acts.
Fourteenth Affirmative Defense
Plaintiff fails to state a cause of action for Quantum Meruit as an express contract exists
between Plaintiff and Co-Defendant Malugen.
Fifteenth Affirmative Defense
The Trust is entitled to set-off for the damages Plaintiff caused due to it defective
construction and negligence in causing significant water damage to the home.
Sixteenth Affirmative Defense
Plaintiff failed to perform its work to the standards in the industry and failed to comply
with the Florida Building Code resulting in damages.
WHEREFORE, having answered the Third Amended Complaint, the Trustee, respectfully
requests that this Court dismiss the Third Amended Complaint with prejudice, enter judgment in
Trustee’s favor, including attorney’s fees, cost, and for such other and further relief as this Court
deems just and proper.
Page 13 of 18
COUNTERCLAIM
Defendant/Counter-Plaintiff, Gail Stedronsky Bove (“Trustee”), as Trustee of the Clardy
A. Malugen Family Trust, sues the Plaintiff/Counter-Defendant, Hodges Brothers, Inc.
(“Hodges”), and states:
1. Gail Stedronsky Bove is Trustee of the Clardy A. Malugen Family Trust and resides
in Orange County Florida.
2. The Trust is the owner of the real property located at 214 Celebration Boulevard,
Celebration, Florida (the “Property”).
3. Hodges is a Florida corporation with its principal place of business in Volusia
County, Florida.
4. This Court has jurisdiction as all cause of action occurred in Osceola County,
Florida.
5. All conditions precedent to bringing this action have occurred, have been
performed, or have been waived.
6. Trustee has retained the law firm of Daniel M. Greene, P.A. to represent it in this
cause of action and is obligated to pay a reasonable attorneys’ fee therefore, Hodges is liable for
said attorneys’ fees pursuant to Florida Statutes alleged in the Third Amended Complaint.
Count I- Violation of the Florida Building Code
7. Trustee re-alleges paragraphs 1-6, as if fully set forth herein.
8. On or about December 29, 2017, Hodges entered into a contract with Clardy A.
Malugen to re-roof the Property. A copy of the contract is attached to Hodges’ Third Amended
Complaint.
Page 14 of 18
9. Pursuant to Florida Statute §553.84, Plaintiff has a right of action for any damages
resulting from a violation of the Florida Building Code applicable to the re-roof.
10. Hodges re-roofed the Property with defects and deficiencies in violation of the
Florida Building Code and therefore in violation of §553.84, Fla. Stat.
11. The defects and deficiencies are latent defects which include, but not limited to;
a. Defective/improper edge flashings at the dormers;
b. Missing kick-out flashing;
c. Failing to install the shingles per the manufacturer’s instructions;
d. Improper shingle installation as the valleys; and
e. Drip edge not flashed properly nor installed properly.
12. Hodges knew or should have known that the defects and deficiencies were
violations of the Florida Building Code.
13. These defects and deficiencies caused water intrusion during rain storms.
14. As a direct and proximate result of the above violations of §553.84, Florida
Statutes, Counter-Plaintiff has been and will be required to expend large sums of money to remedy
the defects and deficiencies and damages caused thereby.
WHEREFORE, Defendant/Counter-Plaintiff, Gail Stedronsky Bove (“Trustee”), as
Trustee of the Clardy A. Malugen Family Trust, request this Court enter judgment in its favor and
against Defendant, Hodges, for damages, including expert and consultant fees, lost rent,
prejudgment interest, costs and any other such relief as this Court deems just and proper.
Page 15 of 18
Count II- Negligence
15. Trustee re-alleges paragraphs 1-6, as if fully set forth herein
16. On or about December 29, 2017, Hodges entered into a contract with Clardy A.
Malugen to re-roof the Property. A copy of the contract is attached to Hodges’ Third Amended
Complaint.
17. During the re-roof of the Property Hodges damaged a water pipe within the attic
space of the home resulting in significant damages.
18. Demand was placed on Hodges to repair the damages and/or compensate the Trust
for the damages and Hodges refused to do so.
19. At all times material hereto, Hodges, by themselves and through their agents,
servants and employees, constructed, supervised, inspected and approved for the re-roof and were
under a duty to Trustee to use reasonable care in doing so.
20. At all times material hereto Hodges by themselves and through their agents,
servants and employees, undertook and were under a duty to Trustee to re-roof the Property in
accordance with the requirements of the Florida Building Code and other local and national codes,
proper and approved construction plans and specifications and proper design, engineering and
construction practices.
21. Hodges had non-delegable duties to Trustee to exercise reasonable care in re-
roofing the Property in compliance with the Florida Building Code, industry standards, and
manufacturers’ recommendations and guidelines and in such a way so to not damage other
property.
22. Hodges was careless and negligent in constructing, supervising, inspecting and
approving re-roof of the Property because of their failure to comply with the requirements of the
Page 16 of 18
Florida Building Code and other local and national codes, failure to construct in accordance with
proper and approved specifications and failure to employ good design and construction practices,
as a direct and proximate result of which the Home has significant defects and deficiencies.
23. The defects and deficiencies are latent defects which include, but not limited to;
a. Defective/improper edge flashings at the dormers;
b. Missing kick-out flashing;
c. Failing to install the shingles per the manufacturer’s instructions;
d. Improper shingle installation as the valleys; and
e. Drip edge not flashed properly nor installed properly.
24. As a direct and proximate result of Hodges’ above-mentioned negligence, Trustee,
has been and will be required to expend large sums of money to remedy the defects and
deficiencies and damages caused thereby, including damages caused to the Property and
possessions in the Propertyand continued to be damaged including but not limited to, loss of use
of the Property, the cost of repairs and inspections.
WHEREFORE, Defendant/Counter-Plaintiff, Gail Stedronsky Bove (“Trustee”), as
Trustee of the Clardy A. Malugen Family Trust, request this Court enter judgment in its favor and
against Defendant, Hodges, for damages, including expert and consultant fees, lost rent,
prejudgment interest, costs and any other such relief as this Court deems just and proper.
CERTIFICATE OF SERVICE
I hereby certify that on this 19th day of June, 2023, the foregoing was electronically filed
with the Clerk of the Courts by using the ePortal System, which will provide an electronic copy to
all counsel of record.
Page 17 of 18
DANIEL M. GREENE, P.A.
_/s/ Daniel M. Greene___________
DANIEL M. GREENE, ESQ., B.C.S.
Florida Bar No.: 419710
Mailing Address: Post Office Box 3092
Orlando, Florida 32802-3092
Ph: (407) 448-5391
dan@dangreenelaw.com
dangreenelaw@gmail.com
Page 18 of 18
Preview
Filing # 175630871 E-Filed 06/19/2023 03:08:07 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA HODGES BROTHERS, INC., CASE NO.: 2018-CA-4003 Plaintiffs, vs. GAIL STEDRONSKY BOVE, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, and CLARDY A. MALUGEN, individually, Defendants. __________________________________/ ANSWER AND AFFIRMATIVE DEFENSES TO THIRD AMENDED COMPLAINT AND COUNTERCLAIM COMES NOW, Defendant, Gail Stedronsky Bove, as Trustee of the Clardy A. Malugen Family Trust, by and through its undersigned counsel, hereby files its Answer and Affirmative Defenses to the Third Amended Complaint and files its Counterclaim, and states in support thereof: ANSWER 1. Denied. 2. Admitted. 3. Without knowledge, therefore denied. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted. 9. Admitted that Malugen transferred the Property to the Trust. 10. Denied. 11. Denied. Page 1 of 18 12. Denied. 13. Without knowledge, therefore denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. 18. Denied. 19. Denied. 20. Admitted. 21. Without knowledge, therefore denied. 22. Without knowledge, therefore denied. 23. Denied. 24. Denied. 25. Denied. 26. Denied. 27. Denied. 28. Denied. 29. Without knowledge, therefore denied. 30. Without knowledge, therefore denied. 31. Denied. 32. Denied. 33. Denied. 34. Denied, Plaintiff failed to serve a Notice to Owner. Page 2 of 18 35. Without knowledge, therefore denied. Count I-Reformation and Foreclosure of Construction Lien Against Malugen As this Count not against the Trustee, the Trustee is not responding to this count 36. Not applicable-Denied. 37. Not applicable-Denied. 38. Not applicable-Denied. 39. Not applicable-Denied. 40. Not applicable-Denied. 41. Not applicable-Denied. 42. Not applicable-Denied. 43. Not applicable-Denied. 44. Not applicable-Denied. 45. Not applicable-Denied. 46. Not applicable-Denied. 47. Not applicable-Denied. 48. Not applicable-Denied. 49. Not applicable-Denied. 50. Not applicable-Denied. 51. Not applicable-Denied. 52. Not applicable-Denied. Count II- Foreclosure of Construction Lien Against the Trustee 53. Admitted the Plaintiff is pursuing a claim against Trustee, otherwise denied. 54. No response required, denied. Page 3 of 18 55. Trustee re-alleges its responses to paragraphs 1-35 above. 56. Denied and re-alleges responses to paragraphs 9-19, and 21-28. 57. Without knowledge, therefore denied. 58. Without knowledge, therefore denied. 59. Denied. 60. Denied. 61. Denied. 62. Admitted. 63. Denied. 64. Denied. 65. Denied, Plaintiff failed to serve a Notice to Owner and Contractor’s Final Payment Affidavit on Trustee. 66. Denied. 67. Denied. 68. Denied. Count III- Breach of the Agreement Against Malugen As this Count not against the Trustee, the Trustee is not responding to this Count 69. Not Applicable-Denied. 70. Not Applicable-Denied. 71. Not Applicable-Denied. 72. Not Applicable-Denied. 73. Not Applicable-Denied. Page 4 of 18 Count IV- Breach of the Implied-in-Fact Contract Against the Trust 74. Denied. 75. Trustee re-alleges its responses to paragraphs 1-35, 40, and 58. 76. Denied. 77. Denied. 78. Denied. 79. Denied. 80. Denied. 81. Denied. Count V-Account Stated Against Defendants 82. Denied 83. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58. 84. Denied. 85. Denied. 86. Denied. Count VI- Open Account Against Defendants 87. Denied. 88. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58. 89. Denied. Count VII - Quantum Meruit Against Defendants 90. Denied. 91. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58. 92. Denied. Page 5 of 18 93. Denied. 94. Denied. 95. Denied. Count VIII – Claim of Fraud or Collusion Against Defendants 96. Denied. 97. Defendant re-alleges its responses to paragraphs 1-35, 40 and 58. 98. Denied. 99. Denied. 100. Denied. 101. Denied. 102. Denied. Count IX – Claim for Declaratory Relief Against Defendants 103. Denied. 104. Defendant re-alleges its responses to paragraphs 1-35. 105. Admitted. 106. Admitted. 107. Denied that Plaintiff is entitled to foreclose the Claim of Lien and that Plaintiff was not required to Serve a Notice to Owner. 108. Denied. 109. Denied. 110. Denied. 111. Denied. 112. Admitted. Page 6 of 18 Count X – Quiet Title Action 113. Denied. 114. Admitted. 115. Defendant re-alleges its responses to paragraphs 1-35. 116. Denied. 117. Denied. 118. Denied. 119. Denied. 120. Denied. AFFIRMATIVE DEFENSES First Affirmative Defense Although Count I is not directly directed to Trustee, it directly affects Trustee as it seeks to foreclose a lien against Trustee’s real property. Plaintiff fails to state a cause of action for Reformation. Reformation is appropriate for contracts and agreements between parties. See Ayers v. Thompson, 536 So.2d 1151, 1154 (Fla. 1st DCA 1988)( reformation only corrects the defective written instrument so that it accurately reflects the true terms of the agreement actually reached). Plaintiff alone created the Claim of Lien and is solely liable for its creation. The general rule is that a court of equity will not undertake to reform an instrument which is merely voluntary and based upon no consideration. Burleson v. Brogdon, 364 So.2d 491, 493 (Fla. 1st DCA 1978), appeal after remand, 389 So.2d 11 (Fla. 1st DCA 1980). Further, Plaintiff combined it with the construction lien foreclosure action. These are two separate causes of action and must be pled individually. "'Claims are separate and distinct if ‘they could support an independent action and are not simply alternative theories of liability for the same wrong.’ '..." Household Fin. Corp. III Page 7 of 18 v. Williams, 290 So.3d 508, 511 (Fla. 4th DCA 2020). Also, Plaintiff cannot recover attorney’s fees for reformation. Id. Second Affirmative Defense As to Count II-Plaintiff fails to state a cause of action, as it failed to comply with Florida’s Construction Lien Law, Ch. 713, Fla. Stat. Plaintiff failed to serve a Notice to Owner on Trustee or any party per §713.18. The failure to serve the Notice to Owner is a complete defense to the action. The Notice to Owner attached to the Third Amended Complaint does not comply with Ch. 713. Also, Plaintiff acknowledges it did not enter into a contract with the Trustee and was told the Trust was the owner of the real property before commencing work. A valid contract is required to support a Claim of Lien. “Under Florida law, a construction lien can arise only when a valid contract exists between the parties.” Niehaus v. Big Ben's Tree Serv., Inc., 982 So.2d 1253, 1254 (Fla. 1st DCA 2008). Third Affirmative Defense As to Count II-Plaintiff’s own actions/inaction are the cause of Plaintiff’s damages for which Trustee is not liable. Plaintiff acknowledges it did not enter into a contract with the Trustee and was told the Trust was the owner of the real property before commencing work, yet Plaintiff continued without contacting the Trustee. Fourth Affirmative Defense As to Count IV, Plaintiff fails to state a cause of action for breach of implied-in-fact contract. Plaintiff includes allegations of the express contract thereby negating the implied-in-fact contract. “A contract implied in fact is one form of an enforceable contract; it is based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words. A contract implied in fact is not put into promissory words with sufficient clarity, so a fact Page 8 of 18 finder must examine and interpret the parties’ conduct to give definition to their unspoken agreement.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997). Plaintiff fails to allege any facts that would support the action. Fifth Affirmative Defense As to Counts V and VI, Plaintiff fails to state of cause of action. “Florida courts have long recognized a cause of action for account stated, which requires (1) an agreement between the parties as to the amount owed, (2) an agreement that the amount owed was due, and (3) an express or implicit promise to pay that amount. Everett v. Webb Furniture Co., 98 Fla. 780, 124 So. 278, 279 (1929).” Ham v. Portfolio Recovery Assocs., LLC, 260 So.3d 450, 454 (Fla. 1st DAC 2018). The elements of open account are: “(1) that a sales contract existed between the creditor and debtor; (2) that the amount claimed by the creditor represents either the agreed on sales price or the reasonable value of the goods delivered; and (3) that the goods were actually delivered." Evans v. Delro Industries, Inc., 509 So.2d 1262, 1263 (Fla. 1st DCA 1987). As stated in the Third Amended Complaint, there was no contract between the Trustee and Hodges. Hodges cannot satisfy any of the elements to establish a claim for account stated or open account. And as shown above, there was no contract between the Trustee and Hodges to meet the elements of open account or account stated. Sixth Affirmative Defense As to Count X- Quiet Title Action, Plaintiff as a third-party lacks standing to challenge the title to real property asking the Court to title real property in the name of another party who is not challenging title to the real property. Plaintiff is not even asking the Court to title the real property in its name because Plaintiff cannot demonstrate its right to title in the property. "Absent a default, a court will not quiet title to property unless the record clearly demonstrates the right to title in the Page 9 of 18 claimant and the invalidity of the contesting claim or potential claim. Atlantic Beach Improvement Corp. v. Hall, 143 Fla. 778, 197 So. 464, 466 (1940)." Hinton v. Gold, 813 So. 2d 1057, 1059 (Fla. 4th DCA 2002). "A proper party to a suit to quiet title is one who claims to be the real or beneficial owner of the property. See Chapter 65, Florida Statutes." Commodore Plaza at Century 21 Condominium Ass'n, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So.2d 783, 784 (Fla. 3rd DCA 1974). Seventh Affirmative Defense Plaintiff lacks standing to challenge the Trust documents and to challenge the deed. "Standing is a threshold inquiry that must be addressed before considering the merits of a cause of action. To have standing, a would-be litigant must show ‘a direct and articulable interest in the controversy, which will be affected by the outcome of the litigation.’ " Cruz v. Cmty. Bank & Tr. of Fla., 277 So. 3d 1095, 1097 (Fla. 5th DCA 2019) (quoting Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So. 3d 25, 28 (Fla. 5th DCA 2012) ) (internal citations omitted). Bivins v. Douglas, 335 So.3d 1214, 1218 (Fla. 3d DCA 2021). Plaintiff ”… is not a party to those Trust documents and therefore, lacks standing to challenge same. Castillo v. Deutsche Bank Nat'l Trust Co., 89 So.3d 1069 (Fla. 3d DCA 2012)..." Citibank, N.A. v. Olsak, 208 So.3d 227, 230 (Fla. 3d DCA 2016). Pursuant to §731.201(23), Fla. Sta., Plaintiff does not meet the definition of “Interest Person” and has no interest in the Trust. “To be entitled to recover in an ejectment suit, a plaintiff must show, among other things, that he has a present right to possession. See Demps v. Hogan, 57 Fla. 60, 48 So. 998 (1909); Byrd v. Culver, 376 So.2d 41, 42 (Fla. 4th DCA 1979). A present right to possession may be established in two ways: by demonstrating an enforceable legal title or by showing prior possession (actual or constructive) of the land. See Blitch v. Sapp, 142 Fla. 166, 194 So. 328, 329 (1940); Alford v. Sinclair, 55 So.2d 727, 729 (Fla.1951). When attempting to show enforceable legal title to a particular parcel, a plaintiff may recover only upon the strength of his own title, not the weaknesses of the defendant's title. See Blitch, 194 So. at 329. This means that Page 10 of 18 even if the defendant has no title to the property at all, a plaintiff cannot recover unless he can demonstrate he holds title and that it is valid. See Alford, 55 So.2d at 729; Blitch, 194 So. at 329–330.” Davis v. Hinson, 67 So.3d 1107, 1110 (Fla. 1st DAC 2011). "A proper party to a suit to quiet title is one who claims to be the real or beneficial owner of the property. See Chapter 65, Florida Statutes." Commodore Plaza at Century 21 Condominium Ass'n, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So.2d 783, 784 (Fla. 3rd DCA 1974). "Absent equitable title as opposed to a mere equitable claim or interest the appellees had no standing to maintain a suit to quiet title against the holder of the legal title. Atlantic Beach Improvement Corp. v. Hall, 143 Fla. 778, 197 So. 464 (1940)." Welch v. Point of Americas Condominium Apartments, Inc., 373 So.2d 60, 64 (Fla. 4th DCA 1979). Eighth Affirmative Defense Any recovery by Plaintiff must be setoff, reduced, abated, or apportioned to the extent any other parties’ actions caused or contributed to Plaintiff's damages, if any. Ninth Affirmative Defense This action is governed by Fla. Stat. §768.81, and Plaintiffs’ recovery is diminishable by that percentage of fault attributable to persons or entities other than Trustee. Thus, Trustee’s liability, if any, is limited to its percentage of responsibility for Plaintiff’s damages, if any, regardless of whether other persons or entities are named as co-defendants. Tenth Affirmative Defense Plaintiff’s claim is barred, or at least must be reduced, as a result of Plaintiff’s own material breaches of the contract, including defective construction and causing damages to the home. Page 11 of 18 Eleventh Affirmative Defense Plaintiff fails to state a cause of action for declaratory judgment. Plaintiff is only seeking legal advise for documents that speak for themselves and are not ambiguous or vague. Plaintiff is the only party questioning the documents. In fact, Plaintiff is the party that created the Agreement, the Notice to Owner, and the Claim of Lien and no other party is contesting the interpretation of those documents. With respect to the other documents (Deed and Trust documents), Plaintiff is not a party to those documents and lacks standing to challenge them. It has long been held that with respect to actions for declaratory relief: Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity. Ahearn v. Mayo Clinic, 180 So.3d 165, 174 (Fla. 1st DCA 2015) quoting May v. Holley, 59 So.2d 636, 639 (Fla. 1952) (courts are not going to entertain hypothetical facts or facts that are contingent in nature to address the possibility of a legal injury). Twelfth Affirmative Defense Plaintiff’s own actions/inaction are the cause of Plaintiff’s damages for which Trustee is not liable, including but not limited to, being informed by Co-Defendant that Trustee was the owner of the real property before Plaintiff commenced work. Plaintiff had the opportunity and notice to contact Trustee. Page 12 of 18 Thirteen Affirmative Defense Plaintiff fails to state a cause of action for fraud or collusion against the Trustee. There are no allegations against the Trustee. Plaintiff only alleges Co-Defendant Malugen committed all of the alleged fraudulent acts. Fourteenth Affirmative Defense Plaintiff fails to state a cause of action for Quantum Meruit as an express contract exists between Plaintiff and Co-Defendant Malugen. Fifteenth Affirmative Defense The Trust is entitled to set-off for the damages Plaintiff caused due to it defective construction and negligence in causing significant water damage to the home. Sixteenth Affirmative Defense Plaintiff failed to perform its work to the standards in the industry and failed to comply with the Florida Building Code resulting in damages. WHEREFORE, having answered the Third Amended Complaint, the Trustee, respectfully requests that this Court dismiss the Third Amended Complaint with prejudice, enter judgment in Trustee’s favor, including attorney’s fees, cost, and for such other and further relief as this Court deems just and proper. Page 13 of 18 COUNTERCLAIM Defendant/Counter-Plaintiff, Gail Stedronsky Bove (“Trustee”), as Trustee of the Clardy A. Malugen Family Trust, sues the Plaintiff/Counter-Defendant, Hodges Brothers, Inc. (“Hodges”), and states: 1. Gail Stedronsky Bove is Trustee of the Clardy A. Malugen Family Trust and resides in Orange County Florida. 2. The Trust is the owner of the real property located at 214 Celebration Boulevard, Celebration, Florida (the “Property”). 3. Hodges is a Florida corporation with its principal place of business in Volusia County, Florida. 4. This Court has jurisdiction as all cause of action occurred in Osceola County, Florida. 5. All conditions precedent to bringing this action have occurred, have been performed, or have been waived. 6. Trustee has retained the law firm of Daniel M. Greene, P.A. to represent it in this cause of action and is obligated to pay a reasonable attorneys’ fee therefore, Hodges is liable for said attorneys’ fees pursuant to Florida Statutes alleged in the Third Amended Complaint. Count I- Violation of the Florida Building Code 7. Trustee re-alleges paragraphs 1-6, as if fully set forth herein. 8. On or about December 29, 2017, Hodges entered into a contract with Clardy A. Malugen to re-roof the Property. A copy of the contract is attached to Hodges’ Third Amended Complaint. Page 14 of 18 9. Pursuant to Florida Statute §553.84, Plaintiff has a right of action for any damages resulting from a violation of the Florida Building Code applicable to the re-roof. 10. Hodges re-roofed the Property with defects and deficiencies in violation of the Florida Building Code and therefore in violation of §553.84, Fla. Stat. 11. The defects and deficiencies are latent defects which include, but not limited to; a. Defective/improper edge flashings at the dormers; b. Missing kick-out flashing; c. Failing to install the shingles per the manufacturer’s instructions; d. Improper shingle installation as the valleys; and e. Drip edge not flashed properly nor installed properly. 12. Hodges knew or should have known that the defects and deficiencies were violations of the Florida Building Code. 13. These defects and deficiencies caused water intrusion during rain storms. 14. As a direct and proximate result of the above violations of §553.84, Florida Statutes, Counter-Plaintiff has been and will be required to expend large sums of money to remedy the defects and deficiencies and damages caused thereby. WHEREFORE, Defendant/Counter-Plaintiff, Gail Stedronsky Bove (“Trustee”), as Trustee of the Clardy A. Malugen Family Trust, request this Court enter judgment in its favor and against Defendant, Hodges, for damages, including expert and consultant fees, lost rent, prejudgment interest, costs and any other such relief as this Court deems just and proper. Page 15 of 18 Count II- Negligence 15. Trustee re-alleges paragraphs 1-6, as if fully set forth herein 16. On or about December 29, 2017, Hodges entered into a contract with Clardy A. Malugen to re-roof the Property. A copy of the contract is attached to Hodges’ Third Amended Complaint. 17. During the re-roof of the Property Hodges damaged a water pipe within the attic space of the home resulting in significant damages. 18. Demand was placed on Hodges to repair the damages and/or compensate the Trust for the damages and Hodges refused to do so. 19. At all times material hereto, Hodges, by themselves and through their agents, servants and employees, constructed, supervised, inspected and approved for the re-roof and were under a duty to Trustee to use reasonable care in doing so. 20. At all times material hereto Hodges by themselves and through their agents, servants and employees, undertook and were under a duty to Trustee to re-roof the Property in accordance with the requirements of the Florida Building Code and other local and national codes, proper and approved construction plans and specifications and proper design, engineering and construction practices. 21. Hodges had non-delegable duties to Trustee to exercise reasonable care in re- roofing the Property in compliance with the Florida Building Code, industry standards, and manufacturers’ recommendations and guidelines and in such a way so to not damage other property. 22. Hodges was careless and negligent in constructing, supervising, inspecting and approving re-roof of the Property because of their failure to comply with the requirements of the Page 16 of 18 Florida Building Code and other local and national codes, failure to construct in accordance with proper and approved specifications and failure to employ good design and construction practices, as a direct and proximate result of which the Home has significant defects and deficiencies. 23. The defects and deficiencies are latent defects which include, but not limited to; a. Defective/improper edge flashings at the dormers; b. Missing kick-out flashing; c. Failing to install the shingles per the manufacturer’s instructions; d. Improper shingle installation as the valleys; and e. Drip edge not flashed properly nor installed properly. 24. As a direct and proximate result of Hodges’ above-mentioned negligence, Trustee, has been and will be required to expend large sums of money to remedy the defects and deficiencies and damages caused thereby, including damages caused to the Property and possessions in the Propertyand continued to be damaged including but not limited to, loss of use of the Property, the cost of repairs and inspections. WHEREFORE, Defendant/Counter-Plaintiff, Gail Stedronsky Bove (“Trustee”), as Trustee of the Clardy A. Malugen Family Trust, request this Court enter judgment in its favor and against Defendant, Hodges, for damages, including expert and consultant fees, lost rent, prejudgment interest, costs and any other such relief as this Court deems just and proper. CERTIFICATE OF SERVICE I hereby certify that on this 19th day of June, 2023, the foregoing was electronically filed with the Clerk of the Courts by using the ePortal System, which will provide an electronic copy to all counsel of record. Page 17 of 18 DANIEL M. GREENE, P.A. _/s/ Daniel M. Greene___________ DANIEL M. GREENE, ESQ., B.C.S. Florida Bar No.: 419710 Mailing Address: Post Office Box 3092 Orlando, Florida 32802-3092 Ph: (407) 448-5391 dan@dangreenelaw.com dangreenelaw@gmail.com Page 18 of 18