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Filing # 176962292 E-Filed 07/07/2023 07:04:44 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
HODGES BROTHERS, INC., Case No.: 2018 CA 004003 CI
plaintiffs,
v.
GAIL STEDRONSKY BOVE,
as Trustee of the CLARDY
FAMILY TRUST; and
CLARDY A. MALUGEN,
defendants.
_____________________________/
CLARDY A. MALUGEN’S
ANSWER AND AFFIRMATIVE DEFENSES TO
HODGES BROTHERS, INC.’S
THIRD AMENDED COMPLAINT
Defendant, Clardy A. Malugen (“Malugen”), by counsel, answers
plaintiff/counter-defendant, Hodges Brothers, Inc. (“Hodges
Brothers”), Third Amended Complaint filed June 9, 2023 (the
“Complaint”), as follows:
Common Allegations
1. Admitted only for jurisdictional purposes; otherwise
denied.
2. Admitted only for venue purposes; otherwise denied.
3. Without knowledge; therefore denied.
4. Admitted that defendant/counter-plaintiff, Gail
Stedronsky Bove, as Trustee of the Clardy A. Malugen Family Trust
(the “Trustee”), owns the real property commonly known as 214
Celebration Blvd., Celebration, FL 34747; otherwise denied.
5. Admitted.
Page 1 of 10
6. Admitted.
7. Admitted.
8. Admitted only that, on about January 4, 2010, Malugen
was the “Grantor” of the Clardy A. Malugen Family Trust (the
“Trust”).
9. Admitted that Malugen transferred the subject property to
the Trust.
10. Denied.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
20. Admitted.
21. Denied.
22. Admitted only that Malugen informed Hodges Brothers
that the Trust owned the subject property.
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
28. Denied.
29. Denied.
30. Denied.
31. Denied.
32. Denied.
33. Denied.
34. Denied; Hodges Brothers failed and/or refused to serve a
Notice to Owner, and fully comply with Chapter 713, Fla. Stat.
35. Without knowledge; therefore denied.
Count 1
36. Denied.
37. Responses to Paragraphs 1-35 are incorporated.
Page 2 of 10
38. Admitted.
39. Denied.
40. Denied.
41. Denied; Hodges Brothers failed and/or refused to serve a
Notice to Owner and fully comply with Chapter 713, Fla. Stat.
42. The exhibit speaks for itself; otherwise denied.
43. Denied.
44. Denied.
45. Denied.
46. The composite exhibit speaks for itself; otherwise denied.
47. The composite exhibit speaks for itself; otherwise denied.
48. Denied.; Hodges Brothers failed and/or refused to serve a
Notice to Owner.
49. Denied.
50. Denied.
51. Denied.
52. Denied.
Malugen denies the “wherefore” paragraph immediately
following Paragraph 52 in its entirety.
Count 2
53. – 68. These allegations are not against Malugen so no
response is necessary. To the extent a response is deemed necessary,
denied.
The “wherefore” paragraph immediately following Paragraph 68
is not alleged against Malugen so no response is necessary. To the
extent a response is deemed necessary, denied.
Count 3
69. Denied.
70. Responses to Paragraphs 1-35, 40, and 58 are
incorporated.
71. Denied.
72. Denied.
73. Denied.
Page 3 of 10
Malugen denies the “wherefore” paragraph immediately
following Paragraph 73 in its entirety.
Count 4
74. – 81. These allegations are not against Malugen so no
response is necessary. To the extent a response is deemed necessary,
denied.
The “wherefore” paragraph immediately following Paragraph 81
is not alleged against Malugen so no response is necessary. To the
extent a response is deemed necessary, denied.
Count 5
82. Denied.
83. Responses to Paragraphs 1-35, 40, and 58 are
incorporated.
84. Denied.
85. Denied.
86. Denied
Malugen denies the “wherefore” paragraph immediately
following Paragraph 86 in its entirety.
Count 6
87. Denied.
88. Responses to Paragraphs 1-35, 40, and 58 are
incorporated.
89. Denied.
Malugen denies the “wherefore” paragraph immediately
following Paragraph 89 in its entirety.
Count 7
90. Denied.
91. Responses to Paragraphs 1-35, 40, and 58 are
incorporated.
92. Denied.
93. Denied.
94. Denied.
Page 4 of 10
95. Denied.
Malugen denies the “wherefore” paragraph immediately
following Paragraph 95 in its entirety.
Count 8
96. Denied.
97. Responses to Paragraphs 1-35, 40, and 58 are
incorporated.
98. Denied.
99. Denied.
100. Denied.
101. Denied.
102. Denied.
Malugen denies the “wherefore” paragraph immediately
following Paragraph 102 in its entirety.
Count 9
103. Denied.
104. Responses to Paragraphs 1-35, 40, and 58 are
incorporated.
105. Admitted.
106. Admitted.
107. Denied.
108. Denied.
109. Denied.
110. Denied.
111. Denied.
112. Denied.
Malugen denies the “wherefore” paragraph immediately
following Paragraph 112 in its entirety.
Count 10
113. Denied.
114. Denied.
115. Responses to Paragraphs 1-35 are incorporated.
116. Denied.
117. Denied.
Page 5 of 10
118. Denied.
119. Denied.
120. Denied.
All allegations not specifically admitted in this answer are
denied.
Malugen has retained Bear Legal Solutions, PLLC, David R.
Bear, Dolney Law, PLLC, and Thomas S. Dolney to represent her in
this action, and has obligated herself to pay said firms and attorneys
reasonable fees for their services.
Malugen hereby demands payment of her reasonable attorneys’
fees from Hodges Brothers under contract (Exhibit C to the
Complaint) and statute (Chapter 713, Fla. Stat.).
AFFIRMATIVE DEFENSES
1. Failure to State a Cause of Action (no merger of
legal and equitable interests). The general law is that the same
person cannot be the same time trustee and beneficiary of the
same identical interest. The Fund T.N. 31.06.03 (Rev. 12/13).
Merger is not favored and equity will prevent merger if it will
defeat the intent of the settlor unless the intention is contrary to
the promotion of justice. Id. Indeed, complete merger applies
only when the legal and equitable interests are held by one
person and are coextensive and commensurate, i.e., the legal
and the equitable estate are the same. The Fund T.N. 31.06.04
(Rev. 12/01) citing Contella v. Contella, 559 So. 2d 1217 (Fla. 5th
DCA 1990). Here, Malugen was the Grantor of the Trust, but is
not a beneficiary. Therefore, Hodges Brothers fails to state a
cause of action. Notably, on about May 3, 2018, Hodges
Brothers, through counsel, recorded a Claim of Lien (Composite
Exhibit H to the Complaint) in which it acknowledges that the
subject property is “owned by Clardy A. Malugen Family
Trust.” Hodges Brothers therefore concedes that the legal and
equitable interests are separate.
Page 6 of 10
2. Estoppel. on about May 3, 2018, Hodges Brothers,
through counsel, recorded a Claim of Lien (Composite Exhibit H
to the Complaint) in which it acknowledges that the subject
property is “owned by Clardy A. Malugen Family Trust.”
Hodges Brothers therefore concedes that the legal and equitable
interests are separate.
3. Unclean Hands. The quit claim deed (attached as
Exhibit B to the Complaint) was and is part of the public records.
That as well as statements made to Hodges Brothers put Hodges
Brothers on notice that the owner of the subject property was
the Trust before work was commenced.
4. Failure to State a Cause of Action. Reformation is
appropriate for contracts and agreements between parties.
Ayers v. Thompson, 536 So. 2d 115 (Fla. 1st DCA 1998). Here,
Hodges Brothers is neither a grantor, trustee, nor beneficiary of
the Trust. And, therefore, has no standing to being the cause of
action.
5. Standing. Reformation is appropriate for contracts
and agreements between parties. Ayers v. Thompson, 536 So.
2d 115 (Fla. 1st DCA 1998). Here, Hodges Brothers is neither a
grantor, trustee, nor beneficiary of the Trust. And, therefore, has
no standing to being the cause of action.
6. Claims Mixing. The claims from reformation and
foreclosure are separate and distinct claims, yet they are
inappropriately combined.
7. Failure to Satisfy Condition Precedent. Hodge
Brothers failed to serve a Notice to Owner, and otherwise comply
with Chapter 713, Fla. Stat., which is a complete defense.
Page 7 of 10
8. Comparative/Contributory Cause. The actions of
Hodges Brothers caused its own damages, in particular by
commencing work after being notified and acknowledging that it
did not enter into a contract with the owner of the subject
property – the Trust.
9. Failure to State a Cause of Action. The implied-in-
fact contract claim fails because of the existence of an express
written contract.
10. Failure to State a Cause of Action. Hodges Brothers
fails to set forth a cause of action for account stated, open
account, and quantum meruit.
11. Failure to State a Cause of Action. Hodges Brothers
fails to state a cause of action for declaratory judgment. Hodges
Brothers created the documents and no other party is
questioning the interpretation of them. There is no controversy
which is properly addressed by the Court under Chapter 86,
Hodges Brothers is only seeking legal advise from the Court.
12. Standing. “A proper party to a suit to quiet title is the
one who claims to be the real or beneficial owner of the property.
See Chapter 65, Florida Statutes.” Commodore Plaza at Century
21 Condo. Ass’n, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So.
2d 783 (Fla. 3rd DCA 1974). Hodges Brothers does not claim to
be the real or beneficial owner of the subject property, so
therefore has no standing.
13. Standing. Hodges Brothers lacks standing to
challenge the Trust’s documents because it is not a party to
same. Castillo v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1069
(Fla. 3rd DCA 2012).
Page 8 of 10
14. Standing. The claim for declaratory relief fails because
Hodges Brothers lack standing vis-à-vis the deed and Trust
documents.
15. Setoff. Any claim by Hodges Brothers must be set off
by consequences and damages from its material breach, its
building code violations, its negligence, and its defective
construction, as outlined in Malugen’s and The Trust’s
counterclaims. These setoffs completely offset the balance of any
amounts which would have been owed under the Agreement.
16. Prior Breach. Hodges Brothers committed a prior
breach of the Agreement by failing to perform the job in a
workmanlike manner, perform its work in accordance with the
Florida Building Code, perform its work in accordance with the
manufacturer’s installation specification, and failed to use the
materials required by the Agreement.
17. Reservation. Malugen affirmatively states that she is
entitled to assert other defenses and affirmative defenses,
and/or counterclaims which may become known upon further
discovery in this action, and reserves the right to amend.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy has been furnished
via e-portal to the following: Thomas F. Neal, Esquire, 332 N. Magnolia
Avenue, Orlando, FL 32802, tneal@dsklawgroup.com and
lnovak@dsklawgroup.com, Daniel M. Greene, Esquire, P.O. Box 3092,
Orlando, FL 32802, dangreenelaw@gmail.com, and Andrew V. Showen,
Esquire, Hill, Rugh, Keller & Main, P.L., 390 North Orange Avenue, Suite
1610, Orlando, FL 32801, filings@hrkmlaw.com, on this 7th day of July 17,
2023.
/s/ David R. Bear ____ /s/ Thomas S. Dolney .
Page 9 of 10
David R. Bear Thomas S. Dolney
Florida Bar No: 43269 Florida Bar No.: 34968
Bear Legal Solutions Dolney Law, PLLC
111 North Orange Avenue, Suite 800 Primary: tom@dolneylaw.com
Orlando, FL 32801 Secondary: dolneylaw@gmail.com
Telephone: (321) 888-3955 (352) 359-3606
Facsimile: (407) 891-8730
David@BearLegalSolutions.com Co-counsel for Defendant Malugen
Liz@BearLegalSolutions.com
Co-Counsel for Defendant Malugen
Page 10 of 10
Preview
Filing # 176962292 E-Filed 07/07/2023 07:04:44 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA HODGES BROTHERS, INC., Case No.: 2018 CA 004003 CI plaintiffs, v. GAIL STEDRONSKY BOVE, as Trustee of the CLARDY FAMILY TRUST; and CLARDY A. MALUGEN, defendants. _____________________________/ CLARDY A. MALUGEN’S ANSWER AND AFFIRMATIVE DEFENSES TO HODGES BROTHERS, INC.’S THIRD AMENDED COMPLAINT Defendant, Clardy A. Malugen (“Malugen”), by counsel, answers plaintiff/counter-defendant, Hodges Brothers, Inc. (“Hodges Brothers”), Third Amended Complaint filed June 9, 2023 (the “Complaint”), as follows: Common Allegations 1. Admitted only for jurisdictional purposes; otherwise denied. 2. Admitted only for venue purposes; otherwise denied. 3. Without knowledge; therefore denied. 4. Admitted that defendant/counter-plaintiff, Gail Stedronsky Bove, as Trustee of the Clardy A. Malugen Family Trust (the “Trustee”), owns the real property commonly known as 214 Celebration Blvd., Celebration, FL 34747; otherwise denied. 5. Admitted. Page 1 of 10 6. Admitted. 7. Admitted. 8. Admitted only that, on about January 4, 2010, Malugen was the “Grantor” of the Clardy A. Malugen Family Trust (the “Trust”). 9. Admitted that Malugen transferred the subject property to the Trust. 10. Denied. 11. Denied. 12. Denied. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. 18. Denied. 19. Denied. 20. Admitted. 21. Denied. 22. Admitted only that Malugen informed Hodges Brothers that the Trust owned the subject property. 23. Denied. 24. Denied. 25. Denied. 26. Denied. 27. Denied. 28. Denied. 29. Denied. 30. Denied. 31. Denied. 32. Denied. 33. Denied. 34. Denied; Hodges Brothers failed and/or refused to serve a Notice to Owner, and fully comply with Chapter 713, Fla. Stat. 35. Without knowledge; therefore denied. Count 1 36. Denied. 37. Responses to Paragraphs 1-35 are incorporated. Page 2 of 10 38. Admitted. 39. Denied. 40. Denied. 41. Denied; Hodges Brothers failed and/or refused to serve a Notice to Owner and fully comply with Chapter 713, Fla. Stat. 42. The exhibit speaks for itself; otherwise denied. 43. Denied. 44. Denied. 45. Denied. 46. The composite exhibit speaks for itself; otherwise denied. 47. The composite exhibit speaks for itself; otherwise denied. 48. Denied.; Hodges Brothers failed and/or refused to serve a Notice to Owner. 49. Denied. 50. Denied. 51. Denied. 52. Denied. Malugen denies the “wherefore” paragraph immediately following Paragraph 52 in its entirety. Count 2 53. – 68. These allegations are not against Malugen so no response is necessary. To the extent a response is deemed necessary, denied. The “wherefore” paragraph immediately following Paragraph 68 is not alleged against Malugen so no response is necessary. To the extent a response is deemed necessary, denied. Count 3 69. Denied. 70. Responses to Paragraphs 1-35, 40, and 58 are incorporated. 71. Denied. 72. Denied. 73. Denied. Page 3 of 10 Malugen denies the “wherefore” paragraph immediately following Paragraph 73 in its entirety. Count 4 74. – 81. These allegations are not against Malugen so no response is necessary. To the extent a response is deemed necessary, denied. The “wherefore” paragraph immediately following Paragraph 81 is not alleged against Malugen so no response is necessary. To the extent a response is deemed necessary, denied. Count 5 82. Denied. 83. Responses to Paragraphs 1-35, 40, and 58 are incorporated. 84. Denied. 85. Denied. 86. Denied Malugen denies the “wherefore” paragraph immediately following Paragraph 86 in its entirety. Count 6 87. Denied. 88. Responses to Paragraphs 1-35, 40, and 58 are incorporated. 89. Denied. Malugen denies the “wherefore” paragraph immediately following Paragraph 89 in its entirety. Count 7 90. Denied. 91. Responses to Paragraphs 1-35, 40, and 58 are incorporated. 92. Denied. 93. Denied. 94. Denied. Page 4 of 10 95. Denied. Malugen denies the “wherefore” paragraph immediately following Paragraph 95 in its entirety. Count 8 96. Denied. 97. Responses to Paragraphs 1-35, 40, and 58 are incorporated. 98. Denied. 99. Denied. 100. Denied. 101. Denied. 102. Denied. Malugen denies the “wherefore” paragraph immediately following Paragraph 102 in its entirety. Count 9 103. Denied. 104. Responses to Paragraphs 1-35, 40, and 58 are incorporated. 105. Admitted. 106. Admitted. 107. Denied. 108. Denied. 109. Denied. 110. Denied. 111. Denied. 112. Denied. Malugen denies the “wherefore” paragraph immediately following Paragraph 112 in its entirety. Count 10 113. Denied. 114. Denied. 115. Responses to Paragraphs 1-35 are incorporated. 116. Denied. 117. Denied. Page 5 of 10 118. Denied. 119. Denied. 120. Denied. All allegations not specifically admitted in this answer are denied. Malugen has retained Bear Legal Solutions, PLLC, David R. Bear, Dolney Law, PLLC, and Thomas S. Dolney to represent her in this action, and has obligated herself to pay said firms and attorneys reasonable fees for their services. Malugen hereby demands payment of her reasonable attorneys’ fees from Hodges Brothers under contract (Exhibit C to the Complaint) and statute (Chapter 713, Fla. Stat.). AFFIRMATIVE DEFENSES 1. Failure to State a Cause of Action (no merger of legal and equitable interests). The general law is that the same person cannot be the same time trustee and beneficiary of the same identical interest. The Fund T.N. 31.06.03 (Rev. 12/13). Merger is not favored and equity will prevent merger if it will defeat the intent of the settlor unless the intention is contrary to the promotion of justice. Id. Indeed, complete merger applies only when the legal and equitable interests are held by one person and are coextensive and commensurate, i.e., the legal and the equitable estate are the same. The Fund T.N. 31.06.04 (Rev. 12/01) citing Contella v. Contella, 559 So. 2d 1217 (Fla. 5th DCA 1990). Here, Malugen was the Grantor of the Trust, but is not a beneficiary. Therefore, Hodges Brothers fails to state a cause of action. Notably, on about May 3, 2018, Hodges Brothers, through counsel, recorded a Claim of Lien (Composite Exhibit H to the Complaint) in which it acknowledges that the subject property is “owned by Clardy A. Malugen Family Trust.” Hodges Brothers therefore concedes that the legal and equitable interests are separate. Page 6 of 10 2. Estoppel. on about May 3, 2018, Hodges Brothers, through counsel, recorded a Claim of Lien (Composite Exhibit H to the Complaint) in which it acknowledges that the subject property is “owned by Clardy A. Malugen Family Trust.” Hodges Brothers therefore concedes that the legal and equitable interests are separate. 3. Unclean Hands. The quit claim deed (attached as Exhibit B to the Complaint) was and is part of the public records. That as well as statements made to Hodges Brothers put Hodges Brothers on notice that the owner of the subject property was the Trust before work was commenced. 4. Failure to State a Cause of Action. Reformation is appropriate for contracts and agreements between parties. Ayers v. Thompson, 536 So. 2d 115 (Fla. 1st DCA 1998). Here, Hodges Brothers is neither a grantor, trustee, nor beneficiary of the Trust. And, therefore, has no standing to being the cause of action. 5. Standing. Reformation is appropriate for contracts and agreements between parties. Ayers v. Thompson, 536 So. 2d 115 (Fla. 1st DCA 1998). Here, Hodges Brothers is neither a grantor, trustee, nor beneficiary of the Trust. And, therefore, has no standing to being the cause of action. 6. Claims Mixing. The claims from reformation and foreclosure are separate and distinct claims, yet they are inappropriately combined. 7. Failure to Satisfy Condition Precedent. Hodge Brothers failed to serve a Notice to Owner, and otherwise comply with Chapter 713, Fla. Stat., which is a complete defense. Page 7 of 10 8. Comparative/Contributory Cause. The actions of Hodges Brothers caused its own damages, in particular by commencing work after being notified and acknowledging that it did not enter into a contract with the owner of the subject property – the Trust. 9. Failure to State a Cause of Action. The implied-in- fact contract claim fails because of the existence of an express written contract. 10. Failure to State a Cause of Action. Hodges Brothers fails to set forth a cause of action for account stated, open account, and quantum meruit. 11. Failure to State a Cause of Action. Hodges Brothers fails to state a cause of action for declaratory judgment. Hodges Brothers created the documents and no other party is questioning the interpretation of them. There is no controversy which is properly addressed by the Court under Chapter 86, Hodges Brothers is only seeking legal advise from the Court. 12. Standing. “A proper party to a suit to quiet title is the one who claims to be the real or beneficial owner of the property. See Chapter 65, Florida Statutes.” Commodore Plaza at Century 21 Condo. Ass’n, Inc. v. Saul J. Morgan Enterprises, Inc., 301 So. 2d 783 (Fla. 3rd DCA 1974). Hodges Brothers does not claim to be the real or beneficial owner of the subject property, so therefore has no standing. 13. Standing. Hodges Brothers lacks standing to challenge the Trust’s documents because it is not a party to same. Castillo v. Deutsche Bank Nat’l Trust Co., 89 So. 3d 1069 (Fla. 3rd DCA 2012). Page 8 of 10 14. Standing. The claim for declaratory relief fails because Hodges Brothers lack standing vis-à-vis the deed and Trust documents. 15. Setoff. Any claim by Hodges Brothers must be set off by consequences and damages from its material breach, its building code violations, its negligence, and its defective construction, as outlined in Malugen’s and The Trust’s counterclaims. These setoffs completely offset the balance of any amounts which would have been owed under the Agreement. 16. Prior Breach. Hodges Brothers committed a prior breach of the Agreement by failing to perform the job in a workmanlike manner, perform its work in accordance with the Florida Building Code, perform its work in accordance with the manufacturer’s installation specification, and failed to use the materials required by the Agreement. 17. Reservation. Malugen affirmatively states that she is entitled to assert other defenses and affirmative defenses, and/or counterclaims which may become known upon further discovery in this action, and reserves the right to amend. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy has been furnished via e-portal to the following: Thomas F. Neal, Esquire, 332 N. Magnolia Avenue, Orlando, FL 32802, tneal@dsklawgroup.com and lnovak@dsklawgroup.com, Daniel M. Greene, Esquire, P.O. Box 3092, Orlando, FL 32802, dangreenelaw@gmail.com, and Andrew V. Showen, Esquire, Hill, Rugh, Keller & Main, P.L., 390 North Orange Avenue, Suite 1610, Orlando, FL 32801, filings@hrkmlaw.com, on this 7th day of July 17, 2023. /s/ David R. Bear ____ /s/ Thomas S. Dolney . Page 9 of 10 David R. Bear Thomas S. Dolney Florida Bar No: 43269 Florida Bar No.: 34968 Bear Legal Solutions Dolney Law, PLLC 111 North Orange Avenue, Suite 800 Primary: tom@dolneylaw.com Orlando, FL 32801 Secondary: dolneylaw@gmail.com Telephone: (321) 888-3955 (352) 359-3606 Facsimile: (407) 891-8730 David@BearLegalSolutions.com Co-counsel for Defendant Malugen Liz@BearLegalSolutions.com Co-Counsel for Defendant Malugen Page 10 of 10