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Filing # 144339419 E-Filed 02/22/2022 09:51:52 AM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
HODGES BROTHERS, INC.,
Plaintiff,
vs. Case No.: 2018-CA-004003
CLARDY A. MALUGEN, as Trustee of
The CLARDY A. MALUGEN FAMILY
TRUST, and CLARDY A. MALUGEN,
individually,
Defendants.
_____________________________________/
PLAINTIFF HODGES BROS. INC.’S MOTION FOR LEAVE TO AMEND ANSWER TO
COUNTERCLAIM OF GAIL S. BOVE, AS TRUSTEE
PLAINTIFF HODGES BROS. INC. serves this motion for leave to amend its answer to
the counterclaim of DEFENDANT, GAIL S. BOVE, AS TRUSTEE (“TRUSTEE”), and as
grounds therefor would show:
1. Since the filing of the previous answer to the counterclaim of TRUSTEE, new and
additional information has been produced and/or disclosed by TRUSTEE and DEFENDANT
CLARDY MALUGEN. The new and additional information gives rise to additional defenses.
2. The pleading attached hereto as Exhibit 1 sets for the additional defenses.
3. HODGES BROS. has not previously requested leave to amend its answer to
TRUSTEE’s counterclaim. Accordingly, the privilege to amend has not been abused.
4. The case is not presently set for trial.
5. This motion is not interposed for the purpose of delay, or any other improper purpose.
(To the contrary, HODGES BROS., as the plaintiff, wishes to move this case to trial).
6. There is no prejudice here to any other party. On or about February 2, 2022, counsel
for HODGES BROS. emailed all other counsel requesting leave to maned. No response was
received objecting to the request.
7. “Leave of court [to amend a pleading] shall be given freely when justice so requires.”
Fla. R. Civ. P. 1.190(a). “Public policy “favors the liberal granting of leave to amend” so that
cases may be resolved on their merits. …. (citing Gate Lands Co. v. Old Ponte Vedra Beach
Condo., 715 So.2d 1132, 1135 (Fla. 5th DCA 1998)). … “[A]ll doubts should be resolved in
favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion
unless it clearly appears that [1] allowing the amendment would prejudice the opposing party, [2]
the privilege to amend has been abused, or [3] amendment would be futile.” [cit.om.]” Saidi v.
Saqr, 207 So. 3d 991, 992 (Fla. 5th DCA 2016).
WHEREFORE, HODGES BROS. prays this Honorable Court will enter an order
granting this motion and allowing leave to serve an amended answer to the counterclaim of
TRUSTEE.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 22nd day of February, 2022, I electronically filed the
foregoing with the Clerk of the Courts by using the E-Portal System pursuant to Florida Rule of
Judicial Administration 2.516 (a), which E-Portal will provide service upon: Thomas F. Neal,
Esq., 332 N. Magnolia Ave., P.O. Box. 87, Orlando, FL 32802 at e-mails:
tneal@dsklawgroup.com and lnovak@dsklawgroup.com(Counsel for Plaintiff), Michael M.
Kest, Esq., Kest Law, PLLC, 236 S. Lucerne Circle East, Orlando, FL 32801, at e-
mails:Michael@KestLaw.com; KestLawFirm@Gmail.com (Counsel for Clardy Malugen), and
Juliane M. Brumbaugh, Esq., Nardella & Nardella, PLLC, 135 W Central Blvd Ste 300,
Orlando, FL 32801-2435, at e-mails: jbrumbaugh@nardellalaw.com; service@nardellalaw.com
(Counsel for Gail Stedronsky Bove).
HILL, RUGH, KELLER & MAIN, P.L.
_/s/ Andrew V. Showen_____________
ANDREW V. SHOWEN
Florida Bar No. 0476153
Board Certified Construction Lawyer
390 North Orange Avenue, Suite 1610
Orlando, FL 32801
(407) 926-7460
(407) 926-7461 (facsimile)
filings@hrkmlaw.com
Attorney for Plaintiff (only as to counterclaim)
EXHIBIT A
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR OSCEOLA COUNTY, FLORIDA
HODGES BROTHERS, INC.,
Plaintiff,
vs. Case No.: 2018-CA-004003
CLARDY A. MALUGEN, as Trustee of
The CLARDY A. MALUGEN FAMILY
TRUST, and CLARDY A. MALUGEN,
individually,
Defendants.
_____________________________________/
PLAINTIFF/COUNTERDEFENDANT HODGES BROS. INC.’S ANSWER TO AMENDED
COUNTERCLAIM OF DEFENDANT/COUNTERPLAINTIFF CLARDY A. MALUGEN
PLAINTIFF/COUNTERDEFENDANT HODGES BROS. INC. (“HODGES BROS.”)
withdraws HODGES BROS.’ motion (served June 17, 2019) to dismiss the amended
counterclaim of DEFENDANT/COUNTERPLAINTIFF CLARDY A. MALUGEN
(“MALUGEN”) (without prejudice to asserting the matters set forth in that motion), and answers
the amended counterclaim, served June 6, 2019, paragraph by paragraph, as follows.
GENERAL ALLEGATIONS
1. Admitted, but HODGES BROS. denies MALUGEN is entitled to any relief.
2. Admitted.
3. Admitted.
4. Without knowledge, and therefore denied.
5. Without knowledge, and therefore denied.
6. Without knowledge, and therefore denied.
7. Without knowledge, and therefore denied.
8. Admitted, but HODGES BROS. denies any implication that the CLARDY A.
MALUGEN FAMILY TRUST (“TRUST”) is not bound by that agreement.
9. Admitted, except that HODGES BROS. is without knowledge, and therefore denies, the
allegation that MALUGEN owned the personal property.
10. Denied.
11. Denied.
12. HODGES BROS. denies there was any Roof-Related Damage. HODGES BROS. admits
it has refused and failed to pay for any such damage, and denies that such damage
occurred or that HODGES BROS. caused it.
13. Admitted.
14. Without knowledge, and therefore denied. HODGES BROS. believes that attorneys of
Thompson, Jaglal & Sutton, P.A., have withdrawn from representing MALUGEN.
15. Denied.
COUNT I – BREACH OF CONTRACT
16. Admitted, but HODGES BROS. denies MALUGEN is entitled to any relief.
17. HODGES BROS. realleges its answers to ⁋⁋ 1-15 supra.
18. Denied.
19. Without knowledge, and therefore denied.
WHEREFORE, HODGES BROS. demands judgment in its favor and against the claims of
MALUGEN, plus costs and attorneys’ fees.
COUNT II – ACTION UNDER §553.84 FLA. STAT.
20. Admitted, but HODGES BROS. denies MALUGEN is entitled to any relief.
21. HODGES BROS. realleges its answers to ⁋⁋ 1-8 and 11-14 supra.
22. Admitted.
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
WHEREFORE, HODGES BROS. demands judgment in its favor and against the claims of
MALUGEN, plus costs and attorneys’ fees.
AFFIRMATIVE DEFENSES
First Affirmative Defense
Standing – The House
MALUGEN does not own the house, and therefore does not have standing to sue for
damage to the house. The house is owned by the TRUST, which has separately filed an action
for damage to the house based on the same events and allegations as set forth in this complaint.
Second Affirmative Defense
Standing – The Personal Property
MALUGEN does not own the personal property described in the counterclaim, and
therefore does not have standing to sue for damage to the personal property. The personal
property is owned by the TRUST, which has separately filed an action for damage to the house
based on the same events and allegations as set forth in this complaint.
Third Affirmative Defense
Estoppel
At the time of this answer, TRUST, through GAIL BOVE, TRUSTEE (“TRUSTEE”) has
filed a separate action for the same damages to the same house and personal property. This
action was filed with MALUGEN’s knowledge and consent. MALUGEN is judicially or
equitably estopped from continuing to prosecute this action.
Fourth Affirmative Defense
Standing -- Assignment
1. Between February 2018 and December 2018, MALUGEN submitted claims for
damage to the house and personal property – the same damage demanded in the counterclaim --
to her insurer, Universal Insurance Co. of North America (“Universal”), and Universal paid
MALUGEN $44,356.31 in settlement of her claims for the damage to the house and personal
property, alleged in the complaint.
2. By submitting the claims to Universal and receiving payment, MALUGEN assigned
those claims for those damages, pro tanto, to Universal, as a result of legal and/or equitable
subrogation. Upon taking effect of that assignment, MALUGEN ceased to own and ceased to
have standing to assert those claims (if she ever did have standing).
Fifth Affirmative Defense
Setoff
1. HODGES BROS. realleges ⁋ 1 of the Fourth Affirmative Defense here.
2. On or about July 17, 2018, Universal notified HODGES BROS.’ insurer, that
MALUGEN had assigned her claims against HODGES BROS. to Universal, and demanded
payment, as subrogee to MALUGEN, of $24,848.93. Pursuant to other and further demands and
negotiations, HODGES BROS.’ insurer paid Universal $29,313.09, in full settlement of all
claims of Universal as subrogee and assignee of MALUGEN.
3. In addition to this payment to Universal as subrogee and assignee of MALUGEN, on
May 31, 2018, MALUGEN directly contacted HODGES BROS.’ insurer, and confirmed that she
had agreed to accept $5,394.87 in settlement of her claim against HODGES BROS. for personal
property. On June 1, 2018, HODGES BROS.’ insurer paid MALUGEN the $5,394.87 in
settlement of MALUGEN’s claim for personal property damages, and HODGES BROS. is
discharged pro tanto by that payment.
4. In addition to these payments, on May 1, 2018, HODGES BROS.’ insurer paid three
vendors of repair services to MALUGEN, EMSL Management LLC, Servpro of South Brevard,
and Servpro of Osceola County, $5,332.90 for repairs and services to correct and replace the
Pipe-Related Damage.
5. With respect to count I (breach of contract) and count II (statutory cause of action),
MALUGEN’s recovery must be reduced by the amounts she has already been paid for the
damage.
Sixth Affirmative Defense
Release – Pipe-Related Damage
1. HODGES BROS. realleges ⁋ 1 of the Fourth Affirmative Defense here.
2. Following MALUGEN’s acceptance of the payments for her claims described in the
Fourth Affirmative Defense, Universal made demand on HODGES BROS., as subrogee of
MALUGEN, for payment for the damages claimed by MALUGEN which Universal had paid.
3. On or about February 7, 2019, Universal, as subrogee of MALUGEN, executed and
delivered a release of HODGES BROS. “from any and all claims, demands, and causes of action
that Releasor ever had, has or will have for property damage, known or unknown, arising from
the above described accident,” which was further identified as “suffered damage to his/ her
property as a result of an accident occurring on or about February 5, 2018, at or near 214
CELEBRATION BLVD, KISSIMMEE, FL 34747-5013 and involving HODGES BROTHERS,
INC.” A true and correct copy of this release is attached hereto as Exhibit 1. The release bars
MALUGEN’s claims in this action against HODGES BROS. and its insurer for the “Pipe-
Related Damage”.
Seventh Affirmative Defense
Release of Liability For Acts or Omissions of Third Parties
The HODGES BROS. contract disclaims and releases HODGES BROS. from damage or
loss “due to acts or omissions of third parties.” An unknown third party, not HODGES BROS.,
attached the water line to the vent stack. This was negligent and contrary to good construction
practice. MALUGEN is not entitled to recover the Pipe-Related Damages from HODGES
BROS. because this was an act of a third party.
Eighth Affirmative Defense
Unforeseeability
HODGES BROS. is not liable for the Pipe-Related Damage, because the location and
method of placement of the pipe that was damaged was not known to HODGES BROS.,
HODGES BROS. had no duty to discover it, and it was not reasonably foreseeable. It was not
reasonably foreseeable that a previous contractor or other person would have attached a water
line to a vent stack in a manner that would break the water line when the vent stack was
removed. Accordingly HODGES BROS. is not liable because the event and the damage were not
reasonably foreseeable.
Ninth Affirmative Defense
Count II -- Comparative Fault
MALUGEN’s recovery under Count II should be barred or reduced because she was
actively negligent, in that she failed to exercise reasonable care for her in own interests and the
property, by a) permitting or causing the installation of the pipe which was damaged in an
unreasonable, unsound and concealed manner, and b) for failing to notify and warn HODGES
BROS. that there was a water line attached to the vent stack, and which water line’s connection
to the vent stack was not visible, and c) failing to inspect the attic and ductwork for damage (the
water stains on the ceiling having been caused by water condensing on duct work because
animals entered the attic and chewed through the ducts), and d) failing to keep animals out of the
attic and duct work.
Tenth Affirmative Defense
Count II -- Apportionment of Fault
MALUGEN’s injuries, if any, were proximately caused by the acts and/or omissions of
third parties over which HODGES BROS. had no control. These include the persons who
decided to install the pipe that broke in the location that it was installed, and those who actually
performed the installation. Their names and addresses are unknown. Discovery is just beginning,
and HODGES BROS. reserves the right to amend this affirmative defense to more specifically
identify third parties who may be liable.
Eleventh Affirmative Defense
Failure to Mitigate Damages
To the extent that MALUGEN failed to take reasonable steps to attempt to mitigate her
damages, her recovery should be barred or limited accordingly. MALUGEN failed to act
reasonably to mitigate her damages by:
1. failing to promptly engage Serv Pro of South Brevard or its associates promptly after
the Pipe-Related Damage incident to dry out, repair and remediate the house. As a result of this
decision, a) corrective work was delayed as the sole result of her decision; b) MALUGEN lost
the use and rental value of the house while repairs were delayed; c) repair contractors were hired
piecemeal, resulting in delays, inefficiencies, and costs in excess of what was reasonably
necessary to repair the Pipe-Related Damage, and d) such other and further ways as may be
proven at trial.
2. Replacing the roof placed by HODGES BROS. in its entirety at a cost of
approximately $21,000. This replacement exceeded what was reasonably necessary and was
unreasonably expensive.
3. Refusing to allow HODGES BROS. to perform corrective work.
Twelfth Affirmative Defense
Spoliation of Evidence
MALUGEN failed to preserve evidence relevant to the case in that:
1. MALUGEN caused the entire roof constructed by HODGES BROS. to be removed
and replaced, without notice to HODGES BROS. that she intended to remove and replace the
entire roof. This action prevented HODGES BROS. from inspecting the rood for alleged leaks
and developing evidence to defend against the claim of Roof Related Damages.
2. MALUGEN’s agent, William St. Croix, failed to record and preserve data and
observations of the interior of the attic and bottom of the roof, and water tests, that would have
exonerated HODGES BROS. from the claim that the roof leaked. St. Croix was acting on behalf
of MALUGEN at the time of these omissions.
3. The actions of MALUGEN as set forth in paragraphs 1. and 2. above have
prejudiced HODGES BROS. in its prosecution of its claims and its defense of claims brought by
MALUGEN and as such this Court should sanction MALUGEN for such wrongful and
inappropriate conduct.
Thirteenth Affirmative Defense
Count II – Statutory Defense to Sec. 553.84 Claim
HODGES BROS. obtained the required building permits for the work described in the
counterclaim and alleged to not comply with the Florida Building Code. The building official of
the local government or public agency with authority to enforce the Florida Building Code
approved the plans; the work passed all required inspections under the code, and if there was no
personal injury to MALUGEN or damage to property of MALUGEN other than the property that
is the subject of the permits, plans, and inspections, and HODGES BROS. did not know or have
reason to know that the violation existed.
Fourteenth Affirmative Defense
Count II – Building Official’s Determination that HODGES’ Work Complied With The Building
Code Is Entitled To Deference
The building official having jurisdiction over the work inspected HODGES BROS.’ work
and found it to be in compliance with the Florida Building Code. The building official has
primary jurisdiction to determine whether HODGES BROS.’ work was in compliance with the
FBC. HODGES BROS. is entitled to a finding by the Court giving deference to that
determination unless clearly erroneous.
WHEREFORE, PLAINTIFF/COUNTERDEFENDANT HODGES BROTHERS, INC.
demands judgment in its favor and against the claims of DEFENDANT/COUNTERPLAINTIFF
TRUSTEE plus costs, interest and attorneys’ fees.
Fifteenth Affirmative Defense
Failure To State a Cause of Action
The amended counterclaim fails to state a cause of action with respect to damage to the
house, because MALUGEN does not allege she owns the house. Only the owner of property at
the time of the damage has standing to sue for damage to the property, and MALUGEN fails to
make the necessary allegation of ownership of the house.
In addition, the amended counterclaim fails to state a cause of action because
MALUGEN’s allegations that she is “responsible” to pay for maintenance and repairs of the
house is a bare legal conclusion unsupported by adequate allegations of ultimate fact.
In addition, MALUGEN fails to allege she is “legally” responsible (as opposed to
morally or socially responsible) to pay for repairs and maintenance of the house. Therefore, the
allegation that she is “responsible” is legally insufficient to confer standing on her to sue for
damage to the house.
Sixteenth Affirmative Defense
MALUGEN Cannot Recover Increased Cost to Perform A Contract
MALUGEN cannot recover the increased cost of performing a contractual obligation,
that is, maintenance and repairs to the house owned by TRUSTEE, in tort.
WHEREFORE, HODGES BROS. demands judgment in its favor and against the claims of
MALUGEN, plus costs and attorneys’ fees.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this _____ day of ____________, 2022, I electronically
filed the foregoing with the Clerk of the Courts by using the E-Portal System pursuant to Florida
Rule of Judicial Administration 2.516 (a), which E-Portal will provide service upon: Thomas F.
Neal, Esq., 332 N. Magnolia Ave., P.O. Box. 87, Orlando, FL 32802 at e-mails:
tneal@dsklawgroup.com and lnovak@dsklawgroup.com(Counsel for Plaintiff), Michael M.
Kest, Esq., Kest Law, PLLC, 236 S. Lucerne Circle East, Orlando, FL 32801, at e-
mails:Michael@KestLaw.com; KestLawFirm@Gmail.com (Counsel for Clardy Malugen), and
Juliane M. Brumbaugh, Esq., Nardella & Nardella, PLLC, 135 W Central Blvd Ste 300,
Orlando, FL 32801-2435, at e-mails: jbrumbaugh@nardellalaw.com; service@nardellalaw.com
(Counsel for Gail Stedronsky Bove).
HILL, RUGH, KELLER & MAIN, P.L.
__________________________________
ANDREW V. SHOWEN
Florida Bar No. 0476153
Board Certified Construction Lawyer
390 North Orange Avenue, Suite 1610
Orlando, FL 32801
(407) 926-7460
(407) 926-7461 (facsimile)
filings@hrkmlaw.com
Attorney for Plaintiff (only as to counterclaim)
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Filing # 144339419 E-Filed 02/22/2022 09:51:52 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA HODGES BROTHERS, INC., Plaintiff, vs. Case No.: 2018-CA-004003 CLARDY A. MALUGEN, as Trustee of The CLARDY A. MALUGEN FAMILY TRUST, and CLARDY A. MALUGEN, individually, Defendants. _____________________________________/ PLAINTIFF HODGES BROS. INC.’S MOTION FOR LEAVE TO AMEND ANSWER TO COUNTERCLAIM OF GAIL S. BOVE, AS TRUSTEE PLAINTIFF HODGES BROS. INC. serves this motion for leave to amend its answer to the counterclaim of DEFENDANT, GAIL S. BOVE, AS TRUSTEE (“TRUSTEE”), and as grounds therefor would show: 1. Since the filing of the previous answer to the counterclaim of TRUSTEE, new and additional information has been produced and/or disclosed by TRUSTEE and DEFENDANT CLARDY MALUGEN. The new and additional information gives rise to additional defenses. 2. The pleading attached hereto as Exhibit 1 sets for the additional defenses. 3. HODGES BROS. has not previously requested leave to amend its answer to TRUSTEE’s counterclaim. Accordingly, the privilege to amend has not been abused. 4. The case is not presently set for trial. 5. This motion is not interposed for the purpose of delay, or any other improper purpose. (To the contrary, HODGES BROS., as the plaintiff, wishes to move this case to trial). 6. There is no prejudice here to any other party. On or about February 2, 2022, counsel for HODGES BROS. emailed all other counsel requesting leave to maned. No response was received objecting to the request. 7. “Leave of court [to amend a pleading] shall be given freely when justice so requires.” Fla. R. Civ. P. 1.190(a). “Public policy “favors the liberal granting of leave to amend” so that cases may be resolved on their merits. …. (citing Gate Lands Co. v. Old Ponte Vedra Beach Condo., 715 So.2d 1132, 1135 (Fla. 5th DCA 1998)). … “[A]ll doubts should be resolved in favor of allowing the amendment and refusal to do so generally constitutes an abuse of discretion unless it clearly appears that [1] allowing the amendment would prejudice the opposing party, [2] the privilege to amend has been abused, or [3] amendment would be futile.” [cit.om.]” Saidi v. Saqr, 207 So. 3d 991, 992 (Fla. 5th DCA 2016). WHEREFORE, HODGES BROS. prays this Honorable Court will enter an order granting this motion and allowing leave to serve an amended answer to the counterclaim of TRUSTEE. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22nd day of February, 2022, I electronically filed the foregoing with the Clerk of the Courts by using the E-Portal System pursuant to Florida Rule of Judicial Administration 2.516 (a), which E-Portal will provide service upon: Thomas F. Neal, Esq., 332 N. Magnolia Ave., P.O. Box. 87, Orlando, FL 32802 at e-mails: tneal@dsklawgroup.com and lnovak@dsklawgroup.com(Counsel for Plaintiff), Michael M. Kest, Esq., Kest Law, PLLC, 236 S. Lucerne Circle East, Orlando, FL 32801, at e- mails:Michael@KestLaw.com; KestLawFirm@Gmail.com (Counsel for Clardy Malugen), and Juliane M. Brumbaugh, Esq., Nardella & Nardella, PLLC, 135 W Central Blvd Ste 300, Orlando, FL 32801-2435, at e-mails: jbrumbaugh@nardellalaw.com; service@nardellalaw.com (Counsel for Gail Stedronsky Bove). HILL, RUGH, KELLER & MAIN, P.L. _/s/ Andrew V. Showen_____________ ANDREW V. SHOWEN Florida Bar No. 0476153 Board Certified Construction Lawyer 390 North Orange Avenue, Suite 1610 Orlando, FL 32801 (407) 926-7460 (407) 926-7461 (facsimile) filings@hrkmlaw.com Attorney for Plaintiff (only as to counterclaim) EXHIBIT A IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA HODGES BROTHERS, INC., Plaintiff, vs. Case No.: 2018-CA-004003 CLARDY A. MALUGEN, as Trustee of The CLARDY A. MALUGEN FAMILY TRUST, and CLARDY A. MALUGEN, individually, Defendants. _____________________________________/ PLAINTIFF/COUNTERDEFENDANT HODGES BROS. INC.’S ANSWER TO AMENDED COUNTERCLAIM OF DEFENDANT/COUNTERPLAINTIFF CLARDY A. MALUGEN PLAINTIFF/COUNTERDEFENDANT HODGES BROS. INC. (“HODGES BROS.”) withdraws HODGES BROS.’ motion (served June 17, 2019) to dismiss the amended counterclaim of DEFENDANT/COUNTERPLAINTIFF CLARDY A. MALUGEN (“MALUGEN”) (without prejudice to asserting the matters set forth in that motion), and answers the amended counterclaim, served June 6, 2019, paragraph by paragraph, as follows. GENERAL ALLEGATIONS 1. Admitted, but HODGES BROS. denies MALUGEN is entitled to any relief. 2. Admitted. 3. Admitted. 4. Without knowledge, and therefore denied. 5. Without knowledge, and therefore denied. 6. Without knowledge, and therefore denied. 7. Without knowledge, and therefore denied. 8. Admitted, but HODGES BROS. denies any implication that the CLARDY A. MALUGEN FAMILY TRUST (“TRUST”) is not bound by that agreement. 9. Admitted, except that HODGES BROS. is without knowledge, and therefore denies, the allegation that MALUGEN owned the personal property. 10. Denied. 11. Denied. 12. HODGES BROS. denies there was any Roof-Related Damage. HODGES BROS. admits it has refused and failed to pay for any such damage, and denies that such damage occurred or that HODGES BROS. caused it. 13. Admitted. 14. Without knowledge, and therefore denied. HODGES BROS. believes that attorneys of Thompson, Jaglal & Sutton, P.A., have withdrawn from representing MALUGEN. 15. Denied. COUNT I – BREACH OF CONTRACT 16. Admitted, but HODGES BROS. denies MALUGEN is entitled to any relief. 17. HODGES BROS. realleges its answers to ⁋⁋ 1-15 supra. 18. Denied. 19. Without knowledge, and therefore denied. WHEREFORE, HODGES BROS. demands judgment in its favor and against the claims of MALUGEN, plus costs and attorneys’ fees. COUNT II – ACTION UNDER §553.84 FLA. STAT. 20. Admitted, but HODGES BROS. denies MALUGEN is entitled to any relief. 21. HODGES BROS. realleges its answers to ⁋⁋ 1-8 and 11-14 supra. 22. Admitted. 23. Denied. 24. Denied. 25. Denied. 26. Denied. 27. Denied. WHEREFORE, HODGES BROS. demands judgment in its favor and against the claims of MALUGEN, plus costs and attorneys’ fees. AFFIRMATIVE DEFENSES First Affirmative Defense Standing – The House MALUGEN does not own the house, and therefore does not have standing to sue for damage to the house. The house is owned by the TRUST, which has separately filed an action for damage to the house based on the same events and allegations as set forth in this complaint. Second Affirmative Defense Standing – The Personal Property MALUGEN does not own the personal property described in the counterclaim, and therefore does not have standing to sue for damage to the personal property. The personal property is owned by the TRUST, which has separately filed an action for damage to the house based on the same events and allegations as set forth in this complaint. Third Affirmative Defense Estoppel At the time of this answer, TRUST, through GAIL BOVE, TRUSTEE (“TRUSTEE”) has filed a separate action for the same damages to the same house and personal property. This action was filed with MALUGEN’s knowledge and consent. MALUGEN is judicially or equitably estopped from continuing to prosecute this action. Fourth Affirmative Defense Standing -- Assignment 1. Between February 2018 and December 2018, MALUGEN submitted claims for damage to the house and personal property – the same damage demanded in the counterclaim -- to her insurer, Universal Insurance Co. of North America (“Universal”), and Universal paid MALUGEN $44,356.31 in settlement of her claims for the damage to the house and personal property, alleged in the complaint. 2. By submitting the claims to Universal and receiving payment, MALUGEN assigned those claims for those damages, pro tanto, to Universal, as a result of legal and/or equitable subrogation. Upon taking effect of that assignment, MALUGEN ceased to own and ceased to have standing to assert those claims (if she ever did have standing). Fifth Affirmative Defense Setoff 1. HODGES BROS. realleges ⁋ 1 of the Fourth Affirmative Defense here. 2. On or about July 17, 2018, Universal notified HODGES BROS.’ insurer, that MALUGEN had assigned her claims against HODGES BROS. to Universal, and demanded payment, as subrogee to MALUGEN, of $24,848.93. Pursuant to other and further demands and negotiations, HODGES BROS.’ insurer paid Universal $29,313.09, in full settlement of all claims of Universal as subrogee and assignee of MALUGEN. 3. In addition to this payment to Universal as subrogee and assignee of MALUGEN, on May 31, 2018, MALUGEN directly contacted HODGES BROS.’ insurer, and confirmed that she had agreed to accept $5,394.87 in settlement of her claim against HODGES BROS. for personal property. On June 1, 2018, HODGES BROS.’ insurer paid MALUGEN the $5,394.87 in settlement of MALUGEN’s claim for personal property damages, and HODGES BROS. is discharged pro tanto by that payment. 4. In addition to these payments, on May 1, 2018, HODGES BROS.’ insurer paid three vendors of repair services to MALUGEN, EMSL Management LLC, Servpro of South Brevard, and Servpro of Osceola County, $5,332.90 for repairs and services to correct and replace the Pipe-Related Damage. 5. With respect to count I (breach of contract) and count II (statutory cause of action), MALUGEN’s recovery must be reduced by the amounts she has already been paid for the damage. Sixth Affirmative Defense Release – Pipe-Related Damage 1. HODGES BROS. realleges ⁋ 1 of the Fourth Affirmative Defense here. 2. Following MALUGEN’s acceptance of the payments for her claims described in the Fourth Affirmative Defense, Universal made demand on HODGES BROS., as subrogee of MALUGEN, for payment for the damages claimed by MALUGEN which Universal had paid. 3. On or about February 7, 2019, Universal, as subrogee of MALUGEN, executed and delivered a release of HODGES BROS. “from any and all claims, demands, and causes of action that Releasor ever had, has or will have for property damage, known or unknown, arising from the above described accident,” which was further identified as “suffered damage to his/ her property as a result of an accident occurring on or about February 5, 2018, at or near 214 CELEBRATION BLVD, KISSIMMEE, FL 34747-5013 and involving HODGES BROTHERS, INC.” A true and correct copy of this release is attached hereto as Exhibit 1. The release bars MALUGEN’s claims in this action against HODGES BROS. and its insurer for the “Pipe- Related Damage”. Seventh Affirmative Defense Release of Liability For Acts or Omissions of Third Parties The HODGES BROS. contract disclaims and releases HODGES BROS. from damage or loss “due to acts or omissions of third parties.” An unknown third party, not HODGES BROS., attached the water line to the vent stack. This was negligent and contrary to good construction practice. MALUGEN is not entitled to recover the Pipe-Related Damages from HODGES BROS. because this was an act of a third party. Eighth Affirmative Defense Unforeseeability HODGES BROS. is not liable for the Pipe-Related Damage, because the location and method of placement of the pipe that was damaged was not known to HODGES BROS., HODGES BROS. had no duty to discover it, and it was not reasonably foreseeable. It was not reasonably foreseeable that a previous contractor or other person would have attached a water line to a vent stack in a manner that would break the water line when the vent stack was removed. Accordingly HODGES BROS. is not liable because the event and the damage were not reasonably foreseeable. Ninth Affirmative Defense Count II -- Comparative Fault MALUGEN’s recovery under Count II should be barred or reduced because she was actively negligent, in that she failed to exercise reasonable care for her in own interests and the property, by a) permitting or causing the installation of the pipe which was damaged in an unreasonable, unsound and concealed manner, and b) for failing to notify and warn HODGES BROS. that there was a water line attached to the vent stack, and which water line’s connection to the vent stack was not visible, and c) failing to inspect the attic and ductwork for damage (the water stains on the ceiling having been caused by water condensing on duct work because animals entered the attic and chewed through the ducts), and d) failing to keep animals out of the attic and duct work. Tenth Affirmative Defense Count II -- Apportionment of Fault MALUGEN’s injuries, if any, were proximately caused by the acts and/or omissions of third parties over which HODGES BROS. had no control. These include the persons who decided to install the pipe that broke in the location that it was installed, and those who actually performed the installation. Their names and addresses are unknown. Discovery is just beginning, and HODGES BROS. reserves the right to amend this affirmative defense to more specifically identify third parties who may be liable. Eleventh Affirmative Defense Failure to Mitigate Damages To the extent that MALUGEN failed to take reasonable steps to attempt to mitigate her damages, her recovery should be barred or limited accordingly. MALUGEN failed to act reasonably to mitigate her damages by: 1. failing to promptly engage Serv Pro of South Brevard or its associates promptly after the Pipe-Related Damage incident to dry out, repair and remediate the house. As a result of this decision, a) corrective work was delayed as the sole result of her decision; b) MALUGEN lost the use and rental value of the house while repairs were delayed; c) repair contractors were hired piecemeal, resulting in delays, inefficiencies, and costs in excess of what was reasonably necessary to repair the Pipe-Related Damage, and d) such other and further ways as may be proven at trial. 2. Replacing the roof placed by HODGES BROS. in its entirety at a cost of approximately $21,000. This replacement exceeded what was reasonably necessary and was unreasonably expensive. 3. Refusing to allow HODGES BROS. to perform corrective work. Twelfth Affirmative Defense Spoliation of Evidence MALUGEN failed to preserve evidence relevant to the case in that: 1. MALUGEN caused the entire roof constructed by HODGES BROS. to be removed and replaced, without notice to HODGES BROS. that she intended to remove and replace the entire roof. This action prevented HODGES BROS. from inspecting the rood for alleged leaks and developing evidence to defend against the claim of Roof Related Damages. 2. MALUGEN’s agent, William St. Croix, failed to record and preserve data and observations of the interior of the attic and bottom of the roof, and water tests, that would have exonerated HODGES BROS. from the claim that the roof leaked. St. Croix was acting on behalf of MALUGEN at the time of these omissions. 3. The actions of MALUGEN as set forth in paragraphs 1. and 2. above have prejudiced HODGES BROS. in its prosecution of its claims and its defense of claims brought by MALUGEN and as such this Court should sanction MALUGEN for such wrongful and inappropriate conduct. Thirteenth Affirmative Defense Count II – Statutory Defense to Sec. 553.84 Claim HODGES BROS. obtained the required building permits for the work described in the counterclaim and alleged to not comply with the Florida Building Code. The building official of the local government or public agency with authority to enforce the Florida Building Code approved the plans; the work passed all required inspections under the code, and if there was no personal injury to MALUGEN or damage to property of MALUGEN other than the property that is the subject of the permits, plans, and inspections, and HODGES BROS. did not know or have reason to know that the violation existed. Fourteenth Affirmative Defense Count II – Building Official’s Determination that HODGES’ Work Complied With The Building Code Is Entitled To Deference The building official having jurisdiction over the work inspected HODGES BROS.’ work and found it to be in compliance with the Florida Building Code. The building official has primary jurisdiction to determine whether HODGES BROS.’ work was in compliance with the FBC. HODGES BROS. is entitled to a finding by the Court giving deference to that determination unless clearly erroneous. WHEREFORE, PLAINTIFF/COUNTERDEFENDANT HODGES BROTHERS, INC. demands judgment in its favor and against the claims of DEFENDANT/COUNTERPLAINTIFF TRUSTEE plus costs, interest and attorneys’ fees. Fifteenth Affirmative Defense Failure To State a Cause of Action The amended counterclaim fails to state a cause of action with respect to damage to the house, because MALUGEN does not allege she owns the house. Only the owner of property at the time of the damage has standing to sue for damage to the property, and MALUGEN fails to make the necessary allegation of ownership of the house. In addition, the amended counterclaim fails to state a cause of action because MALUGEN’s allegations that she is “responsible” to pay for maintenance and repairs of the house is a bare legal conclusion unsupported by adequate allegations of ultimate fact. In addition, MALUGEN fails to allege she is “legally” responsible (as opposed to morally or socially responsible) to pay for repairs and maintenance of the house. Therefore, the allegation that she is “responsible” is legally insufficient to confer standing on her to sue for damage to the house. Sixteenth Affirmative Defense MALUGEN Cannot Recover Increased Cost to Perform A Contract MALUGEN cannot recover the increased cost of performing a contractual obligation, that is, maintenance and repairs to the house owned by TRUSTEE, in tort. WHEREFORE, HODGES BROS. demands judgment in its favor and against the claims of MALUGEN, plus costs and attorneys’ fees. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this _____ day of ____________, 2022, I electronically filed the foregoing with the Clerk of the Courts by using the E-Portal System pursuant to Florida Rule of Judicial Administration 2.516 (a), which E-Portal will provide service upon: Thomas F. Neal, Esq., 332 N. Magnolia Ave., P.O. Box. 87, Orlando, FL 32802 at e-mails: tneal@dsklawgroup.com and lnovak@dsklawgroup.com(Counsel for Plaintiff), Michael M. Kest, Esq., Kest Law, PLLC, 236 S. Lucerne Circle East, Orlando, FL 32801, at e- mails:Michael@KestLaw.com; KestLawFirm@Gmail.com (Counsel for Clardy Malugen), and Juliane M. Brumbaugh, Esq., Nardella & Nardella, PLLC, 135 W Central Blvd Ste 300, Orlando, FL 32801-2435, at e-mails: jbrumbaugh@nardellalaw.com; service@nardellalaw.com (Counsel for Gail Stedronsky Bove). HILL, RUGH, KELLER & MAIN, P.L. __________________________________ ANDREW V. SHOWEN Florida Bar No. 0476153 Board Certified Construction Lawyer 390 North Orange Avenue, Suite 1610 Orlando, FL 32801 (407) 926-7460 (407) 926-7461 (facsimile) filings@hrkmlaw.com Attorney for Plaintiff (only as to counterclaim)