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Filing # 110653962 E-Filed 07/22/2020 05:41:24 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO. 2018-CA-4003
HODGES BROTHERS, INC.,
Plaintiff,
v.
PATRICIA STELZNER, as Trustee of the
CLARDY A. MALUGEN FAMILY TRUST,
and CLARDY A. MALUGEN, individually,
Defendants.
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PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT
TO SUBSTITUTE PROPER PARTY DEFENDANT
Plaintiff, HODGES BROTHERS, INC. (“HODGES BROTHERS”), by and through its
undersigned attorneys, pursuant to Florida Rule of Civil Procedure 1.190, files this Motion for
Leave to File Second Amended Complaint to Substitute Proper Party Defendant, and states as
follows:
1. The original action in this matter was filed on or about December 7, 2018, against
CLARDY A. MALUGEN, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST,
(“TRUST”) and CLARDY A. MALUGEN, (“MALUGEN”) individually.
2. The initial Complaint set forth causes of action for Foreclosure of Construction
Lien, Breach of Agreement, Account Stated, Open Account, and Quantum Meruit.
3. Based upon the fact that Clardy A. Malugen had signed a Notice of
Commencement on behalf of the TRUST, and at all times material hereto conducted herself as in
control of the TRUST, HODGES BROTHERS believed that MALUGEN was the trustee of the
TRUST.
4, Afier service of the Complaint upon MALUGEN, as Trustee of the TRUST, and
individually, counsel for MALUGEN advised the undersigned that MALUGEN was not the
trustee of the TRUST but refused, despite several requests, to reveal the name of the trustee.
5. Prior to filing the Amended Complaint, counsel for HODGES BROTHERS sent a
proposed Amended Complaint for Construction Lien Foreclosure and Other Relief to counsel for
MALUGEN, and again requested counsel to provide the name of the trustee of the TRUST.
(True and correct copies of e-mails dated February 13, 21 and 24, 2019, between Thomas F. Neal
and Rouselle “Bo” Sutton are attached hereto as Composite Exhibit “A”).
6. On or about September 27, 2019, HODGES BROTHERS served its Second
Request to Produce to MALUGEN.
7. In response to the Second Request to Produce, MALUGEN produced, inter alia,
a) a copy of the Clardy A. Malugen Family Trust Agreement; and b) copies of an unexecuted
Appointment of Successor Trustee and unexecuted Acceptance of Appointment of Successor
Trustee.
8. The Clardy A. Malugen Family Trust Agreement named Patricia Stelzner as the
trustee.
9. Due to the production of the Appointment of Successor Trustee and the
Acceptance of Successor Trustee (albeit both unexecuted) on or about November 18, 2019,
counsel for HODGES BROTHERS requested counsel for MALUGEN to confirm whether
Patricia Stelzner remained the trustee of the TRUST, and, if not, to confirm that Sarah Stelzner
had been appointed successor trustee. (A true and correct copy of an e-mail dated November 18,
2019, from Andrew V. Showen to Anthony Jaglal is attached hereto as Exhibit “B”).
10. Counsel for MALUGEN did not respond to the request as set forth in paragraph
nine (9) above.
11. After receiving no response from counsel for MALUGEN, HODGES
BROTHERS filed its Amended Complaint for Lien Foreclosure and Other Relief, based upon the
fact that Patricia Stelzner was named in the trust document as trustee of the Clardy A. Malugen
Family Trust, and both the Appointment of Successor Trustee and Acceptance of Appointment
of Successor Trustee were not executed.
12. After service of the Amended Complaint upon Patricia Stelzner as trustee, Scott
A. Smothers, counsel for trustee, advised that Patricia Stelzner had resigned as Trustee of the
TRUST, and appointed her daughter, Sarah Stelzner, as successor trustee. In addition, Mr.
Smothers provided copies of the executed trust documents that MALUGEN failed and refused to
provide. (True and correct copies of the executed Appointment of Successor Trustee and
executed Acceptance of Appointment of Successor Trustee dated December 30, 2016, are
attached hereto as Composite Exhibit “C”).
13. Pursuant to the Acceptance of Appointment of Successor Trustee executed on
December 30, 2016, Sarah Stelzner is the proper party defendant in this action. (A copy of the
proposed Second Amended Complaint for Construction Lien Foreclosure and Other Relief is
attached hereto as Exhibit “D”)
14. No party will be prejudiced by the granting of this Motion, this matter is not set
forth trial, discovery is ongoing, and the granting of this Motion for Leave to File Second
Amended Complaint to Substitute Proper Party Defendant will serve the interests ofjustice.
15. This motion is not filed for the purposes of delay. Further, it is the public policy
of the state to freely allow amendments to pleadings so that cases may be resolved upon their
merits. Adams v Knabb Turpentine Co., Inc., 435 So.2d 944 (Fla. 1 DCA 1983).
WHEREFORE, Defendant, HODGES BROTHERS, INC., requests that this court grant
the leave requested herein for filing a Second Amended Complaint for Construction Lien
Foreclosure and Other Relief, and for such further and other relief as this Court deems just and
proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing was furnished by electronic mail on July 22, 2020,
to: ROUSELLE A. SUTTON, III, ESQ., ANTHONY JAGLAL, ESQ., BRIAN CHRISTOPHER
WALKER, ESQ., Thompson, Jaglal & Sutton, P.A., 4767 New Broad Street, Orlando, FL 328714
bo.suttonthompsonjaelal.com; ajaglal@thompsonjaglal.com; brian,walker«thompsonjaglal.com,
ANDREW V. SHOWEN, ESQ., Hill, Rugh, Keller & Main, P.L., 390 North Orange Avenue, Suite
1610, Orlando, FL 32801 filings?hrkmlaw.com; and SCOTT A. SMOTHERS, ESQ., Smothers
Law Firm, P.A., 523 Wekiva Commons Circle, Apopka, FL 32712 service(usmotherslawfirm.com.
(sl Thomas F. Neal
THOMAS F, NEAL
Florida Bar Number 603368
tneal@dsklawgroup.com
Inovak@dsklawgroup.com
de Beaubien, Simmons, Knight,
Mantzaris & Neal, L.L.P.
332 North Magnolia Avenue
Post Office Box 87
Orlando, Florida 32802-0087
Telephone: (407) 422-2454
Facsimile: (407) 849-1845
Attorneys for Plaintiff
COMPOSITE EXHIBIT “A”
From: Bo Sutton
Sent: Sunday, February 24, 2019 12:35 PM
To: Neal, Thornas F.
Ce: Anthony Jaglal; Novak, Lynn A.
Subject: Re: Clardy Malugen adv. Hodges Brothers, Inc.
Tom,
We will circle back around with you on this after we speak with your client about your
558 Response.
Rouselle “Bo” Sutton III, Esq.
Florida Bar Certified in Construction Law
Thompson, Jaglal & Sutton, P.A.
4767 New Broad Street
Orlando, FL. 32814
Office (407) 601-6604
Cell (407) 373-5973
Fax (407) 514-2604
bo.sutton@thompsonjaglal.com
PRIVILEGE AND CONFIDENTIALITY NOTICE: This email is covered by the This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally
privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and
all attachments, if any, are intended to be and to remain confidential, and it may be subject to the applicable attorney - client and or work product privileges. If you are not the
intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and
its attachments, Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclase the contents or take any action in
reliance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to be free of any virus or other
defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is
accepted by Thompson, Jagial & Suttan, P.A., for damage arising in any way from its use.
On Thu, Feb 21, 2019 at 2:09 PM Neal, Thomas F. wrote:
Bo-
Please find attached a draft of our proposed Amended Complaint for Construction Lien Foreclosure and Other Relief
(“Amended Complaint”) in the above matter. | need the name of the Trustee of the Clardy A. Malugen Family Trust to
finalize the Amended Complaint for attachment to our Motion for Leave to File Amended Complaint.
As you can tell, a copy of the Notice to Owner is attached as Exhibit “D” to the draft Amended Complaint. The Notice to
Owner was properly and timely served, however, even if it was not (and it was) the Construction Lien litigation will go
forward because of the allegations of privity of contract in the Amended Complaint. Obviously, you have the right to
raise any defenses you deem appropriate on behalf of your clients, and likewise, we clearly have the right to amend our
complaint to set forth our allegations.
Once again, if you will provide me the name of the Trustee of the Clardy A. Malugen Family Trust, it will alleviate the
need for costly and unnecessary discovery directed to this issue.
Thanks, Tom
1
Thomas F. Neal
Partner
g@ Beaunion Smmearns Kright Mantzaris Neg!
FAT. IG6
Orlando, Florida 32801
P 407.422.2454 | F 407.992.3551
http://www.dsklawgroup.coms
ar AV\CREEMINENT:
From: Bo Sutton [mailto:bo.sutton@!thompsonijaglal.com]
Sent: Wednesday, February 13, 2019 3:00 PM
To: Neal, Thomas F.
Cc: Anthony Jagial; Novak, Lynn A.
Subject: Re: Clardy Malugen adv. Hodges Brothers, Inc.
Tom,
First, would you provide us with a copy of the Notice to Owner? If properly and timely served,
then the Trustee might be a proper party. If the Notice to Owner was not properly and timely
served then there is no lien and the Trustee would not be a proper party.
Rouselle “Bo” Sutton ITI, Esq.
Florida Bar Certified in Construction Law
Thompson, Jaglal & Sutton, P.A.
4767 New Broad Street
Orlando, FL. 32814
Office (407) 601-6604
Cell (407) 373-5973
Fax (407) 514-2604
bo.sutton@thompsonjaglal.com
PRIVILEGE AND CONFIDENTIALITY NOTICE: This email is covered by the This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally
privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication
2
and all attachments, if any, are intended ta be and to rernain confidential, and it may be subject to the applicable attorney - client and ar work product privileges. if you are not
the intended recipient of this message, cr if this message has been addressed to you In error, please immediately alert the sender by reply e-mail and then delete this message
and its attachments. Do not deliver, distribute, or copy this massage and or any attachments if you are not the intended recipient. Do not disclose the contents or take any
action in rellance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to be free of any virus or
other defect that might affect any computer system into which if is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no
responsibility ls accepted by Thompson, Jaglal & Sutton, PA, for darnage arising in any way from its use.
On Wed, Feb 13, 2019 at 2:41 PM Neal, Thomas F. wrote:
Anthony-
We will check with our client and get back with you on the proposed dates.
Also, please provide us with the name of the correct Trustee of the Clardy A. Malugen Family Trust so that we may
amend our complaint accordingly.
We look forward to the receipt of this information.
Thanks, Tom
Thomas F, Neal
Partner
de Seaunlen Gmuenens Kaght-Mantzarig Nea:
FST. 1976
Orlando, Florida 32801
P 407.422.2454 | F 407.992.3551
http://www.dsklawgroup.com/
Adurtinduke
Pub beelt
oy y/\PREEMINENT,
From: Anthony Jaglal [mailto:ajagial@thompsonjaglal.com]
Sent: Tuesday, February 12, 2019 11:44 AM
To: Neal, Thomas F.
€c: Novak, Lynn A.; Bo Sutton
Subject: RE: Clardy Malugen adv. Hodges Brothers, Inc.
Dear Mr. Neal,
Regarding the dates and times to inspect the residence, please note that the following dates and times are available:
Thursday (February 14, 2019) morning before noon and Friday (February 15, 2019) after 2:30 p.m.
3 i
Please advise as to which of those dates and times works best for you. If you have any questions or comments, please
do not hesitate to so advise.
Sincerely,
Anthony Jagial
Anthony Jaglal, Esquire
Board Certified Construction Attorney
Thompson, Jaglal & Sutton, P.A.
4767 New Broad Street
Orlando, FL 32814
Telephone |407}601-6604
Fax (4071514-2604
ajagial@thompsonjagiai.com
www.thompsoniagial.com
PRIVILEGE AND CONFIDENTIALITY NOTICE ; This ¢-mail is covered by the Electronic Communications Privacy Act, 18 U.S C. Sections 2510-2521 and is legally privileged.
The contents of this e-mail message and any allachments are intended solely for the party or pariles addressed and named in this message. This communication and all
attachments. if any. are intended to be and to remain confidential, and if may be subject to the applicable attorney - cient and or work product priviegas. ff you are not the
intended recipient of this message. or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then deiete is message
and its atfachments. Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclose the contents or take any
action in reliance upon the information contained in this communication or any atlachments. Although this E-mail and any attachments are beleved to be free of any virus or
other defect that might effect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure thal it is virus free and no responsibility
ig accepted by Thompson. Jaglal & Sutton P_A., for damage arising in any way fromm ils use.
This message contains confidential information and is intended only for the individual or entity named. If you are not
the named addressee in this e-mail, you are hereby notified that any review, dissemination, distribution, copying,
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Please note: This law firm may be deemed a "debt collector" under the Fair Debt Collection Practices Act. Any and all
information obtained during and from communications may be used for the purpose of collecting debt. Warning:
Although the company has taken reasonable precautions to ensure no viruses are present in this email, the law firm
cannot accept responsibility for any loss or damage arising from the use of this email or attachments.
This message contains confidential information and is intended only for the individual or entity named. If you are not
the named addressee in this e-mail, you are hereby notified that any review, dissemination, distribution, copying,
forwarding of this e-mail is prohibited. Please notify the sender immediately by e-mail if you have received this e-mail
by mistake and delete this e-mail from your system. If verification is required please request a hard-copy version.
Please note: This law firm may be deemed a "debt collector" under the Fair Debt Collection Practices Act. Any and all
information obtained during and from communications may be used for the purpose of collecting debt. Warning:
Although the company has taken reasonable precautions to ensure no viruses are present in this email, the law firm
cannot accept responsibility for any loss or damage arising from the use of this email or attachments.
4
EXHIBIT “B”
From: Andy Showen
Sent: Monday, November 18, 2019 5:29 PM
Ta: Anthony Jaglal
Ce: Neal, Thomas F.; Novak, Lynn A.
Subject: Hodges Bros. v Malugen et al -- document production status
Dear Anthony,
In reviewing the documents provided with the production of documents in response to the second request to produce
from Hodges Bros., | am not finding documents responsive to 4 1, 7, 8, 9, 10, 11, 13, 14, 15, 16, or 17 of the second
request to produce. The response of October 28 stated these would be produced if they exist. As to each paragraph,
please either a) advise whether or not the request documents exist, and b) if they do, produce them by November 28, or
c) advise if there is good cause for a request for more time to produce them, so we can discuss an extension to
a definite date.
Also, the documents produced included an appointment of successor trustee with a signature block for Patricia
Stelzner, but which was not signed and not attested. Please advise if Patricia Stelzner currently remains the trustee of
the Clardy A. Malugen Family Trust, or if not, who is.
Very truly yours,
Andrew V. Showen
Board Certified Construction Lawyer
Hill Rugh Keller & Main
390 North Orange Avenue, Suite 1610
Orlando Florida 32801
Phone 407-926-7460
Fax 407-926-7461
Direct 407-447-4528
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COMPOSITE EXHIBIT “C”
APPOINTMENT OF SUCCESSOR TRUSTEE
I, Patricia Stelzner, am the Trustee named in the Declaration ofTrust of the Clardy A. Malugen
Family Trust, dated January 4, 2010, for the benefit of Dylan A. Malugen and Jameson T.
Malugen.
Pursuant to the power and authority contained in such instrument, I hereby resign as Trustee
effective January 1, 2017 and appoint that my successor Sarah Stelzner, whose address is 5745
Washington Blvd., Indianapolis, IN 46220, administer the aforementioned trust, from and after
January 1, 2017. . .
IN WITNESS THEREOE, I, Patricia Stelzner, hereby cause this instrament to be executed.
, 5
PATRICIA STELZNER |
fafa Date |
Signed in the presence of as to Trustee:
Barua Stophiasin ob Ausutueteutt, MEA MXC
City or County and State
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PRINT: GARPARA GO. STELHEASAA)
~Peecreene“ie“Ap bone of_Albvsvergue Ned Abe gi 0a.
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City or County and State |
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print: Mavesey A. Sawnees
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|
:
L, Sarah Stelzner, was appointed as Successor Trustee in the Declaration of Trust of the Clardy
A. Malugen Family Trust, dated January 4, 2010, for the benefit of Dylan A. Malugen and
Jameson T. Malugen.
Upon the resignation of the original Trustee, Patricia Stelzner, on January 1. 2017, I do hereby
accept the terms and conditions of said Trust and agree to perform the duties and obligations of
Trustee from that day forward.
IN WITNESS WHEREOF, I, Sarah Stelzner, hereby cause this instrument to be executed.
ek!Mba SARAH STELANER
Date
Signed in the presence of as to Successor Trustee:
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City or County an State
EXHIBIT “D”
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CASE NO: 2018-CA-4003
HODGES BROTHERS, INC.,
Plaintiff,
v.
SARAH STELZNER, as Trustee of the
CLARDY A. MALUGEN FAMILY TRUST,
and CLARDY A. MALUGEN, individually,
Defendants.
intl
SECOND AMENDED COMPLAINT FOR CONSTRUCTIONLIEN FORECLOSURE
AND OTHER RELIEF
Plaintiff, HODGES BROTHERS, INC., (“HODGES BROTHERS”) by and through its
undersigned attorney, files its Second Amended Complaint for Construction Lien Foreclosure and
Other Relief against the Defendants, SARAH STELZNER (“S. STELZNER”), as Trustee of the
Clardy A. Malugen Family Trust (the “TRUST”), and CLARDY A. MALUGEN, (“C.
MALUGEN”) individually, and shows as follows:
COMMON ALLEGATIONS
1. This is an action for damages in excess of $15,000.00, exclusive of costs, interest
and attorneys’ fees.
2. Venue is properly laid in Osceola County, Florida, pursuant to Chapter 47, Florida
Statutes.
3. At all times material hereto, HODGES BROTHERS is and was a Florida
corporation, with its principal place of business located at 620 S. Riverside Drive, New Smyrna
Beach, Volusia County, Florida.
4, The TRUST is the owner of the real property located at 214 Celebration Blvd.,
Celebration, Osceola County, Florida, and more particularly described in paragraph seven (7)
below.
5. S. STELZNER is the Trustee of the Trust.
6. C. MALUGEN is an individual who resides at 214 Celebration Blvd., Celebration,
Osceola County, Florida.
7. On or about December 29, 2017, HODGES BROTHERS and the TRUST entered
into a written agreement ("the Agreement") pursuant to which HODGES BROTHERS was to
provide services and furnish materials to install and replace the roof at the real property located at
214 Celebration Blvd., Celebration, Osceola County, Florida, more particularly described as:
Lot 15 CELEBRATION NORTH VILLAGE UNIT 6, according to the map or plat
thereof as recorded in Plat Book 9, Page 195, Public Records of Osceola County
(‘the Property”).
(A true and correct copy of the Agreement is attached hereto as Exhibit “A” and incorporated herein
by reference.)
8. At all times material hereto, C.MALUGEN had the actual or apparent authority to
act on behalf of the TRUST.
9, At all times material hereto, C.MALUGEN had the actual or apparent authority to
contractually bind the TRUST and to act as agent for the TRUST for the following reasons,
including but not limited to:
a) by signing the Agreement with HODGES BROTHERS;
b) by signing the Notice of Commencement on behalf ofthe TRUST; and
Cc) by negotiating with, directing and dealing with HODGES BROTHERS with regard
to the work performed pursuant to the Agreement.
2
10. If it is determined that there was not a direct contract between HODGES
BROTHERS and the TRUST, then at all times material hereto, there was privity of contract by and
between HODGES BROTHERS and the TRUST, as a common identity existed between C.
MALUGEN, and the TRUST.
11. If it is determined that there was not a direct contract between HODGES
BROTHERS and the TRUST, then at all times material hereto, there was privity of contract by and
between HODGES BROTHERS and the TRUST, as the TRUST knew HODGES BROTHERS was
working on the Property and the TRUST assumed the contractual obligation for the work performed
by HODGES BROTHERS.
12. In the alternative to paragraph eight (8) above, if it is determined that C.
MALUGEN did not act with actual or apparent authority with regard to HODGES BROTHERS,
then a fraud was committed by C. MALUGEN pursuant to Section 713.21(1), Florida Statutes, by
falsely signing the Agreement and the Notice of Commencement, to the detriment of HODGES
BROTHERS, and to deprive HODGES BROTHERS of the benefits or rights of Chapter 713,
Florida Statutes.
13. On or about January 30, 2018, HODGES BROTHERS began to furnish the services
and materials for the improvement of the Property.
14, HODGES BROTHERS performed the services in a workmanlike manner and fully
and completely discharged its obligations pursuant to the terms and conditions of the Agreement
between the parties.
15, On or about February 14, 2018, HODGES BROTHERS forwarded to the
TRUSTEE and C. MALUGEN its Invoice in the amount of $ 17,375.00. (A true and correct copy
of the Invoice dated February 14, 2018, is attached hereto as Exhibit “B” and incorporated herein by
reference.)
3
16. Despite the Agreement between the parties, and despite the repeated demands of
HODGES BROTHERS, the TRUST and C. MALUGEN have refused to pay the outstanding sums
due and owing to HODGES BROTHERS. (A true and correct copy of a demand letter from
counsel for HODGES BROTHERS to C. MALUGEN dated March 16, 2018, [with attached copies
of the Agreement, Invoice, draft Claim of Lien and Certified Return Receipt] is attached hereto as
Exhibit “C” and incorporated herein by reference.)
17. |HODGES BROTHERS has performed all conditions precedent to the bringing of
this action or such conditions have been excused or waived.
18. | HODGES BROTHERS has retained the undersigned law firm to represent it in this
action and is entitled to an award of attorneys’ fees and costs pursuant to the Agreement between the
parties, and pursuant to Sections 713.29 and 57.105, Florida Statutes, and as set forth in each count
below.
COUNT
I
FORECLOSURE OF CONSTRUCTION LIEN
19. This is an action against the TRUST to foreclose a construction lien on the Property
pursuant to Chapter 713, Florida Statutes.
20. Paragraphs one (1) through eighteen (18) are realleged and incorporated by
reference, as if set forth herein.
2i. At all times material to this action, HODGES BROTHERS and the TRUST were
parties to the Agreement for HODGES BROTHERS to provide improvements to the Property.
22. Beginning on or about January 30, 2018, HODGES BROTHERS delivered the
materials and labor for use and incorporation into the Property, for the improvement of the Property.
23. | The TRUST has failed to make payment to HODGES BROTHERS for the labor,
services and materials provided for the improvement to the Property.
4
24. HODGES BROTHERS furnished the first of the items under the Agreement on
January 30, 2018, and the last of the items on February 7, 2018; the work or materials having a total
value of Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00, of
which there remains unpaid Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars
($17,375.00); although HODGES BROTHERS has made repeated demands, the TRUST has failed
and refused to pay the unpaid balance.
25. HODGES BROTHERS was not required to serve a Notice to Owner upon the
TRUST, as it had a direct contract with the TRUST. In the alternative, HODGES BROTHERS was
not required to serve a Notice to Owner upon the TRUST for the reasons set forth in paragraphs
nine (9) and ten (10) above.
26. Although not required, in an abundance of caution, on or about February 16, 2018,
HODGES BROTHERS caused a Notice to Owner to be served upon the TRUST, in accordance
with Section 713.06, Florida Statutes. (A true and correct copy of the Notice to Owner is attached
hereto as Exhibit “D” and incorporated herein by reference).
27. On or about May 3, 2018, HODGES BROTHERS recorded, in the office of the
Clerk of the Circuit Court in and for Osceola County, Florida, at O.R. Book 5327, Page 2626, a
Claim of Lien against the Property. (A true and correct copy of the Claim of Lien is attached hereto
as Exhibit “E” and incorporated herein by reference).
28. Onor about May 17, 2018, HODGES BROTHERS causeda true and correct copy
of the recorded Claim of Lien to be served upon the TRUST, via Certified Mail, Return Receipt
Requested. (True and correct copies of the transmittal letter and Certified Return Receipt are
attached hereto as Composite Exhibit “F” and incorporated herein by reference).
29. On or about November 29, 2018, HODGES BROTHERS caused a Contractor’s
Final Payment Affidavit to be served upon the TRUST, via Certified Mail, Return Receipt
Ss)
Requested. (True and correct copies of the transmittal letter and Certified Return Receipt are
attached hereto as Composite Exhibit “G” and incorporated herein by reference).
30. HODGES BROTHERS has substantially performed all conditions precedent
required pursuant to the Agreement and all statutory prerequisites under the Florida Construction
Lien law, or such prerequisites have been waived or excused. HODGES BROTHERS has brought
this action within the time specified in Section 713.22, Florida Statutes.
31. There remains due and unpaid to HODGES BROTHERS the total sum of Seventeen
Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00). Despite HODGES
BROTHERS' demand for payment, the TRUST has refused and failed to pay same.
32. HODGES BROTHERS is entitled to an award of attorneys’ fees pursuant to Section
713.29, Florida Statutes.
WHEREFORE, HODGES BROTHERS demands judgment confirming, enforcing and
foreclosing the construction lien, setting the subject real property for sale, damages in the amount of
$17,375.00, against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY
TRUST, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-
judgment interest, court costs, attorneys’ fees pursuant to Section 713.29, Florida Statutes, and such
further and other relief as this Court may deem just and proper.
COUNT TT
BREACH OF THE AGREEMENT AGAINST THE TRUST
33. This is a cause of action for breach of the Agreement between HODGES
BROTHERS and the TRUST.
34. Paragraphs one (1) through eleven (11) and thirteen (13) through eighteen (18) are
realleged and incorporated by reference, as if set forth herein.
6
35. The TRUST breached the Agreement with HODGES BROTHERS by failing to pay
to HODGES BROTHERS the sums due and owing to it.
36, By virtue of the breach of the Agreement by the TRUST, HODGES BROTHERS
has been damaged, and continues to suffer damages.
37. HODGES BROTHERS is entitled to an award of attorneys’ fees pursuant to the
terms of the Agreement between the parties.
WHEREFORE, HODGES BROTHERS demands judgment in the amount of $17,375.00,
against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST,
together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment
interest, court costs, attorneys’ fees pursuant to Section 713.29, Florida Statutes, and such further
and other relief as this Court may deem just and proper.
COUNT IU
BREACH OF THE AGREEMENT AGAINST C. MALUGEN
38. In the alternative to Count IJ, this is a cause of action for breach of the Agreement
between HODGES BROTHERS and C. MALUGEN.
39, Paragraphs one (1) through eleven (11), thirteen (13) through eighteen (18), and
twenty (20) through twenty-two (22) are realleged and incorporated by reference, as if set forth
herein.
40. C. MALUGEN breached the Agreement with HODGES BROTHERS by failing to
pay to HODGES BROTHERS the sums due and owing to it.
Al, By virtue of the breach of the Agreement by C. MALUGEN, HODGES
BROTHERS has been damaged, and continues to suffer damages.
42. HODGES BROTHERS is entitled to an award of attorneys’ fees pursuant to the
terms of the Agreement between the parties.
7
WHEREFORE, HODGES BROTHERS demands judgment in the amount of $17,375.00,
against CLARDY A. MALUGEN, together with pre-judgment interest at the rate of eighteen
percent (18%) per annum, post-judgment interest, court costs, attorneys’ fees pursuant to Section
713.29, Florida Statutes, and such further and other relief as this Court may deem just and proper.
COUNT IV
ACCOUNT STATED AGAINST THE TRUST
43. This is a cause of action for account stated against the TRUST.
44. Paragraphs one (1) through eleven (11), thirteen (13) through eighteen (18), and
twenty-one (21) through twenty-three (23) are realleged and incorporated by reference, as if set
forth herein.
45. Before the institution of this action, HODGES BROTHERS and the TRUST had
business transactions between them and on or about February 7, 2018, they agreed to the resulting
balance.
46. HODGES BROTHERS rendered statements of it to the TRUST, and the TRUST
did not object to the statements. A true and correct copy of the final statement dated February 14,
2018, is attached hereto as Exhibit "B" and incorporated herein by reference.
47. The TRUST owes HODGES BROTHERS $17,375.00 that is due with interest thirty
(30) days after receipt of each invoice on the account.
WHEREFORE, HODGES BROTHERS demands judgment for damages in the amount of
$17,375.00 against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY
TRUST, together with court costs, pre-judgment interest at the rate of eighteen percent (18%) per
annum, post-judgment interest, court costs and such further and other relief as this Court may deem
just and proper.
8
COUNTY.
ACCOUNT STATED AGAINST CLARDY A. MALUGEN
48. In the alternative to Count IV, this is a cause of action for account stated against C.
MALUGEN.
49, Paragraphs one (1) through eleven (11), thirteen (13) through eighteen (18), and
thirty-nine (39) through forty (40) are realleged and incorporated by reference, as if set forth herein.
50. Before the institution of this action, HODGES BROTHERS and C. MALUGEN had
business transactions between them and on or about February 7, 2018, they agreed to the resulting
balance.
51. HODGES BROTHERS rendered statements of it to C. MALUGEN, and C.
MALUGEN did not object to the statements. A true and correct copy of the final statement dated
February 14, 2018, is attached hereto as Exhibit "B" and incorporated herein by reference.
$2. C, MALUGEN owes HODGES BROTHERS $17,375.00 that is due with interest
thirty (30) days after receipt of each invoice on the account.
WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00
against CLARDY A. MALUGEN, together with court costs, pre-judgment interest at the rate of
eighteen percent (18%) per annum, post-judgment interest, court costs, and such further and other
relief as this Court may deem just and proper.
COUNT VI
OPEN ACCOUNT AGAINST THE TRUST
53. This is a cause of action for open account against the TRUST.
54. Paragraphs one (1) through ten (10), twelve (12) through seventeen (17), and twenty
(20) through twenty-two (22) are realleged and incorporated by reference, as if set forth herein.
55. The TRUST owes HODGES BROTHERS $17,375.00 that is due with interest since
thirty days (30) after receipt of invoice #5862 on the account. (A true and correct copy of the final
9
statement dated February 14, 2018, is attached hereto as Exhibit "B" and incorporated herein by
reference.)
WHEREFORE, HODGES BROTHERS demands judgment for damages in the amount of
$17,375.00 against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY
TRUST, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-
judgment interest, court costs, and such further and other relief as this Court may deem just and
proper.
COUNT Vil
OPEN ACCOUNT AGAINST CLARDY A. MALUGEN
56. In the alternative to Count VI, this is a cause of action for open account against C.
MALUGEN.
37. Paragraphs one (1) through ten (10), twelve (12) through seventeen (17), and forty
(40) through forty-two (42) are realleged and incorporated by reference, as if set forth herein.
38. C. MALUGEN owes HODGES BROTHERS $17,375.00 that is due with interest
since thirty days (30) after receipt of invoice #5862 on the account. (A true and correct copy of the
final statement dated February 14, 2018, is attached hereto as Exhibit "B" and incorporated herein
by reference.)
WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00
against CLARDY A. MALUGEN, together with pre-judgment interest at the rate of eighteen
percent (18%) per annum, post-judgment interest, court costs, and such further and other relief as
this Court may deem just and proper.
COUNT Vill
QUANTUM MERUIT AGAINST THE TRUST
59. This is acause of action for quantum meruit against the TRUST.
10
60. Paragraphs one (1) through six (6), thirteen (13) through eighteen (18) and twenty-
one (21) through twenty-three (23) are realleged and incorporated by reference, as if set forth
herein.
61. HODGES BROTHERS provided materials and performed services for the
improvement and renovation of the Property owned by the TRUST and for the use and benefit of
the TRUST.
62. HODGES BROTHERS provided the materials and performed the services for the
TRUST with the expectation of being compensated and did not act as a volunteer in performing the
work,
63. The reasonable value of the labor, services and materials for which HODGES
BROTHERS has not been paid by the TRUST is Seventeen Thousand Three Hundred Seventy-Five
and 00/100 Dollars ($17,375.00).
64. HODGES BROTHERS has suffered damages in the amount of Seventeen Thousand
Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00), and continues to suffer damages.
WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00,
against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST,
together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment
interest, court costs, and such further and other relief as this Court may deem just and proper.
COUNT IX
65. In the alternative to Count VIL, this is a cause of action for quantum meruit against
C. MALUGEN.
66. Paragraphs one (1) through six (6), thirteen (13) through eighteen (18) and forty (40)
through forty-one (41) are realleged and incorporated by reference, as if set forth herein.
11
67. HODGES BROTHERS provided materials and performed services for the
improvement and renovation of the Property occupied by CLARDY A. MALUGEN and for the use
and benefit C. MALUGEN.
68. | HODGES BROTHERS provided the materials and performed the services for C.
MALUGEN with the expectation of being compensated and did not act as a volunteer in performing
the work.
69. The reasonable value of the labor, services and materials for which HODGES
BROTHERS has not been paid by C. MALUGEN is Seventeen Thousand Three Hundred Seventy-
Five and 00/100 Dollars ($17,375.00).
70. | HODGES BROTHERS has suffered damages in the amount of Seventeen Thousand
Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00) and continues to suffer damages.
WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00,
CLARDY A. MALUGEN, jointly and severally, together with pre-judgment interest at the rate of
eighteen percent (18%) per annum, post-judgment interest, court costs, and such further and other
relief as this Court may deem just and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing was furnished by electronic mail on
_, 2020, to: ROUSELLE A. SUTTON, Ill, ESQ., BRIAN CHRISTOPHER
WALKER, ESQ., Thompson, Jaglal & Sutton, P.A., 4767 New Broad Street, Orlando, FL 328714
bo.sutton thompsonjaglal.com; brian.walker(@thompsonjaglal.com: and ANDREW V. SHOWEN,
ESQ., Hill, Rugh, Keller & Main, P.L., 390 North Orange Avenue, Suite 1610, Orlando, FL 32801
filings‘ hrkmlaw.com.
THOMASF.NEALt™”
Florida Bar Number 603368
tneal@dsklawgroup.com
Inovak@dsklawgroup.com
de Beaubien, Simmons, Knight,
Mantzaris & Neal, L.L.P.
12
332 North Magnolia Avenue
Post Office Box 87
Orlando, Florida 32802-0087
Telephone: (407) 422-2454
Facsimile: (407) 849-1845
Attorneys for Plaintiff
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Filing # 110653962 E-Filed 07/22/2020 05:41:24 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO. 2018-CA-4003 HODGES BROTHERS, INC., Plaintiff, v. PATRICIA STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, and CLARDY A. MALUGEN, individually, Defendants. nner rneninnininnntnnmnid PLAINTIFF’S MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT TO SUBSTITUTE PROPER PARTY DEFENDANT Plaintiff, HODGES BROTHERS, INC. (“HODGES BROTHERS”), by and through its undersigned attorneys, pursuant to Florida Rule of Civil Procedure 1.190, files this Motion for Leave to File Second Amended Complaint to Substitute Proper Party Defendant, and states as follows: 1. The original action in this matter was filed on or about December 7, 2018, against CLARDY A. MALUGEN, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, (“TRUST”) and CLARDY A. MALUGEN, (“MALUGEN”) individually. 2. The initial Complaint set forth causes of action for Foreclosure of Construction Lien, Breach of Agreement, Account Stated, Open Account, and Quantum Meruit. 3. Based upon the fact that Clardy A. Malugen had signed a Notice of Commencement on behalf of the TRUST, and at all times material hereto conducted herself as in control of the TRUST, HODGES BROTHERS believed that MALUGEN was the trustee of the TRUST. 4, Afier service of the Complaint upon MALUGEN, as Trustee of the TRUST, and individually, counsel for MALUGEN advised the undersigned that MALUGEN was not the trustee of the TRUST but refused, despite several requests, to reveal the name of the trustee. 5. Prior to filing the Amended Complaint, counsel for HODGES BROTHERS sent a proposed Amended Complaint for Construction Lien Foreclosure and Other Relief to counsel for MALUGEN, and again requested counsel to provide the name of the trustee of the TRUST. (True and correct copies of e-mails dated February 13, 21 and 24, 2019, between Thomas F. Neal and Rouselle “Bo” Sutton are attached hereto as Composite Exhibit “A”). 6. On or about September 27, 2019, HODGES BROTHERS served its Second Request to Produce to MALUGEN. 7. In response to the Second Request to Produce, MALUGEN produced, inter alia, a) a copy of the Clardy A. Malugen Family Trust Agreement; and b) copies of an unexecuted Appointment of Successor Trustee and unexecuted Acceptance of Appointment of Successor Trustee. 8. The Clardy A. Malugen Family Trust Agreement named Patricia Stelzner as the trustee. 9. Due to the production of the Appointment of Successor Trustee and the Acceptance of Successor Trustee (albeit both unexecuted) on or about November 18, 2019, counsel for HODGES BROTHERS requested counsel for MALUGEN to confirm whether Patricia Stelzner remained the trustee of the TRUST, and, if not, to confirm that Sarah Stelzner had been appointed successor trustee. (A true and correct copy of an e-mail dated November 18, 2019, from Andrew V. Showen to Anthony Jaglal is attached hereto as Exhibit “B”). 10. Counsel for MALUGEN did not respond to the request as set forth in paragraph nine (9) above. 11. After receiving no response from counsel for MALUGEN, HODGES BROTHERS filed its Amended Complaint for Lien Foreclosure and Other Relief, based upon the fact that Patricia Stelzner was named in the trust document as trustee of the Clardy A. Malugen Family Trust, and both the Appointment of Successor Trustee and Acceptance of Appointment of Successor Trustee were not executed. 12. After service of the Amended Complaint upon Patricia Stelzner as trustee, Scott A. Smothers, counsel for trustee, advised that Patricia Stelzner had resigned as Trustee of the TRUST, and appointed her daughter, Sarah Stelzner, as successor trustee. In addition, Mr. Smothers provided copies of the executed trust documents that MALUGEN failed and refused to provide. (True and correct copies of the executed Appointment of Successor Trustee and executed Acceptance of Appointment of Successor Trustee dated December 30, 2016, are attached hereto as Composite Exhibit “C”). 13. Pursuant to the Acceptance of Appointment of Successor Trustee executed on December 30, 2016, Sarah Stelzner is the proper party defendant in this action. (A copy of the proposed Second Amended Complaint for Construction Lien Foreclosure and Other Relief is attached hereto as Exhibit “D”) 14. No party will be prejudiced by the granting of this Motion, this matter is not set forth trial, discovery is ongoing, and the granting of this Motion for Leave to File Second Amended Complaint to Substitute Proper Party Defendant will serve the interests ofjustice. 15. This motion is not filed for the purposes of delay. Further, it is the public policy of the state to freely allow amendments to pleadings so that cases may be resolved upon their merits. Adams v Knabb Turpentine Co., Inc., 435 So.2d 944 (Fla. 1 DCA 1983). WHEREFORE, Defendant, HODGES BROTHERS, INC., requests that this court grant the leave requested herein for filing a Second Amended Complaint for Construction Lien Foreclosure and Other Relief, and for such further and other relief as this Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was furnished by electronic mail on July 22, 2020, to: ROUSELLE A. SUTTON, III, ESQ., ANTHONY JAGLAL, ESQ., BRIAN CHRISTOPHER WALKER, ESQ., Thompson, Jaglal & Sutton, P.A., 4767 New Broad Street, Orlando, FL 328714 bo.suttonthompsonjaelal.com; ajaglal@thompsonjaglal.com; brian,walker«thompsonjaglal.com, ANDREW V. SHOWEN, ESQ., Hill, Rugh, Keller & Main, P.L., 390 North Orange Avenue, Suite 1610, Orlando, FL 32801 filings?hrkmlaw.com; and SCOTT A. SMOTHERS, ESQ., Smothers Law Firm, P.A., 523 Wekiva Commons Circle, Apopka, FL 32712 service(usmotherslawfirm.com. (sl Thomas F. Neal THOMAS F, NEAL Florida Bar Number 603368 tneal@dsklawgroup.com Inovak@dsklawgroup.com de Beaubien, Simmons, Knight, Mantzaris & Neal, L.L.P. 332 North Magnolia Avenue Post Office Box 87 Orlando, Florida 32802-0087 Telephone: (407) 422-2454 Facsimile: (407) 849-1845 Attorneys for Plaintiff COMPOSITE EXHIBIT “A” From: Bo Sutton Sent: Sunday, February 24, 2019 12:35 PM To: Neal, Thornas F. Ce: Anthony Jaglal; Novak, Lynn A. Subject: Re: Clardy Malugen adv. Hodges Brothers, Inc. Tom, We will circle back around with you on this after we speak with your client about your 558 Response. Rouselle “Bo” Sutton III, Esq. Florida Bar Certified in Construction Law Thompson, Jaglal & Sutton, P.A. 4767 New Broad Street Orlando, FL. 32814 Office (407) 601-6604 Cell (407) 373-5973 Fax (407) 514-2604 bo.sutton@thompsonjaglal.com PRIVILEGE AND CONFIDENTIALITY NOTICE: This email is covered by the This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication and all attachments, if any, are intended to be and to remain confidential, and it may be subject to the applicable attorney - client and or work product privileges. If you are not the intended recipient of this message, or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then delete this message and its attachments, Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclase the contents or take any action in reliance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility is accepted by Thompson, Jagial & Suttan, P.A., for damage arising in any way from its use. On Thu, Feb 21, 2019 at 2:09 PM Neal, Thomas F. wrote: Bo- Please find attached a draft of our proposed Amended Complaint for Construction Lien Foreclosure and Other Relief (“Amended Complaint”) in the above matter. | need the name of the Trustee of the Clardy A. Malugen Family Trust to finalize the Amended Complaint for attachment to our Motion for Leave to File Amended Complaint. As you can tell, a copy of the Notice to Owner is attached as Exhibit “D” to the draft Amended Complaint. The Notice to Owner was properly and timely served, however, even if it was not (and it was) the Construction Lien litigation will go forward because of the allegations of privity of contract in the Amended Complaint. Obviously, you have the right to raise any defenses you deem appropriate on behalf of your clients, and likewise, we clearly have the right to amend our complaint to set forth our allegations. Once again, if you will provide me the name of the Trustee of the Clardy A. Malugen Family Trust, it will alleviate the need for costly and unnecessary discovery directed to this issue. Thanks, Tom 1 Thomas F. Neal Partner g@ Beaunion Smmearns Kright Mantzaris Neg! FAT. IG6 Orlando, Florida 32801 P 407.422.2454 | F 407.992.3551 http://www.dsklawgroup.coms ar AV\CREEMINENT: From: Bo Sutton [mailto:bo.sutton@!thompsonijaglal.com] Sent: Wednesday, February 13, 2019 3:00 PM To: Neal, Thomas F. Cc: Anthony Jagial; Novak, Lynn A. Subject: Re: Clardy Malugen adv. Hodges Brothers, Inc. Tom, First, would you provide us with a copy of the Notice to Owner? If properly and timely served, then the Trustee might be a proper party. If the Notice to Owner was not properly and timely served then there is no lien and the Trustee would not be a proper party. Rouselle “Bo” Sutton ITI, Esq. Florida Bar Certified in Construction Law Thompson, Jaglal & Sutton, P.A. 4767 New Broad Street Orlando, FL. 32814 Office (407) 601-6604 Cell (407) 373-5973 Fax (407) 514-2604 bo.sutton@thompsonjaglal.com PRIVILEGE AND CONFIDENTIALITY NOTICE: This email is covered by the This e-mail is covered by the Electronic Communications Privacy Act, 18 U.S.C. 2510-2521 and is legally privileged. The contents of this e-mail message and any attachments are intended solely for the party or parties addressed and named in this message. This communication 2 and all attachments, if any, are intended ta be and to rernain confidential, and it may be subject to the applicable attorney - client and ar work product privileges. if you are not the intended recipient of this message, cr if this message has been addressed to you In error, please immediately alert the sender by reply e-mail and then delete this message and its attachments. Do not deliver, distribute, or copy this massage and or any attachments if you are not the intended recipient. Do not disclose the contents or take any action in rellance upon the information contained in this communication or any attachments. Although this E-mail and any attachments are believed to be free of any virus or other defect that might affect any computer system into which if is received and opened, it is the responsibility of the recipient to ensure that it is virus free and no responsibility ls accepted by Thompson, Jaglal & Sutton, PA, for darnage arising in any way from its use. On Wed, Feb 13, 2019 at 2:41 PM Neal, Thomas F. wrote: Anthony- We will check with our client and get back with you on the proposed dates. Also, please provide us with the name of the correct Trustee of the Clardy A. Malugen Family Trust so that we may amend our complaint accordingly. We look forward to the receipt of this information. Thanks, Tom Thomas F, Neal Partner de Seaunlen Gmuenens Kaght-Mantzarig Nea: FST. 1976 Orlando, Florida 32801 P 407.422.2454 | F 407.992.3551 http://www.dsklawgroup.com/ Adurtinduke Pub beelt oy y/\PREEMINENT, From: Anthony Jaglal [mailto:ajagial@thompsonjaglal.com] Sent: Tuesday, February 12, 2019 11:44 AM To: Neal, Thomas F. €c: Novak, Lynn A.; Bo Sutton Subject: RE: Clardy Malugen adv. Hodges Brothers, Inc. Dear Mr. Neal, Regarding the dates and times to inspect the residence, please note that the following dates and times are available: Thursday (February 14, 2019) morning before noon and Friday (February 15, 2019) after 2:30 p.m. 3 i Please advise as to which of those dates and times works best for you. If you have any questions or comments, please do not hesitate to so advise. Sincerely, Anthony Jagial Anthony Jaglal, Esquire Board Certified Construction Attorney Thompson, Jaglal & Sutton, P.A. 4767 New Broad Street Orlando, FL 32814 Telephone |407}601-6604 Fax (4071514-2604 ajagial@thompsonjagiai.com www.thompsoniagial.com PRIVILEGE AND CONFIDENTIALITY NOTICE ; This ¢-mail is covered by the Electronic Communications Privacy Act, 18 U.S C. Sections 2510-2521 and is legally privileged. The contents of this e-mail message and any allachments are intended solely for the party or pariles addressed and named in this message. This communication and all attachments. if any. are intended to be and to remain confidential, and if may be subject to the applicable attorney - cient and or work product priviegas. ff you are not the intended recipient of this message. or if this message has been addressed to you in error, please immediately alert the sender by reply e-mail and then deiete is message and its atfachments. Do not deliver, distribute, or copy this message and or any attachments if you are not the intended recipient. Do not disclose the contents or take any action in reliance upon the information contained in this communication or any atlachments. Although this E-mail and any attachments are beleved to be free of any virus or other defect that might effect any computer system into which it is received and opened, it is the responsibility of the recipient to ensure thal it is virus free and no responsibility ig accepted by Thompson. Jaglal & Sutton P_A., for damage arising in any way fromm ils use. This message contains confidential information and is intended only for the individual or entity named. If you are not the named addressee in this e-mail, you are hereby notified that any review, dissemination, distribution, copying, forwarding of this e-mail is prohibited. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If verification is required please request a hard-copy version. Please note: This law firm may be deemed a "debt collector" under the Fair Debt Collection Practices Act. Any and all information obtained during and from communications may be used for the purpose of collecting debt. Warning: Although the company has taken reasonable precautions to ensure no viruses are present in this email, the law firm cannot accept responsibility for any loss or damage arising from the use of this email or attachments. This message contains confidential information and is intended only for the individual or entity named. If you are not the named addressee in this e-mail, you are hereby notified that any review, dissemination, distribution, copying, forwarding of this e-mail is prohibited. Please notify the sender immediately by e-mail if you have received this e-mail by mistake and delete this e-mail from your system. If verification is required please request a hard-copy version. Please note: This law firm may be deemed a "debt collector" under the Fair Debt Collection Practices Act. Any and all information obtained during and from communications may be used for the purpose of collecting debt. Warning: Although the company has taken reasonable precautions to ensure no viruses are present in this email, the law firm cannot accept responsibility for any loss or damage arising from the use of this email or attachments. 4 EXHIBIT “B” From: Andy Showen Sent: Monday, November 18, 2019 5:29 PM Ta: Anthony Jaglal Ce: Neal, Thomas F.; Novak, Lynn A. Subject: Hodges Bros. v Malugen et al -- document production status Dear Anthony, In reviewing the documents provided with the production of documents in response to the second request to produce from Hodges Bros., | am not finding documents responsive to 4 1, 7, 8, 9, 10, 11, 13, 14, 15, 16, or 17 of the second request to produce. The response of October 28 stated these would be produced if they exist. As to each paragraph, please either a) advise whether or not the request documents exist, and b) if they do, produce them by November 28, or c) advise if there is good cause for a request for more time to produce them, so we can discuss an extension to a definite date. Also, the documents produced included an appointment of successor trustee with a signature block for Patricia Stelzner, but which was not signed and not attested. Please advise if Patricia Stelzner currently remains the trustee of the Clardy A. Malugen Family Trust, or if not, who is. Very truly yours, Andrew V. Showen Board Certified Construction Lawyer Hill Rugh Keller & Main 390 North Orange Avenue, Suite 1610 Orlando Florida 32801 Phone 407-926-7460 Fax 407-926-7461 Direct 407-447-4528 aoa, ie aoe kof = fa) YP 2 =+N f- heeI ON. OS MEER i COMPOSITE EXHIBIT “C” APPOINTMENT OF SUCCESSOR TRUSTEE I, Patricia Stelzner, am the Trustee named in the Declaration ofTrust of the Clardy A. Malugen Family Trust, dated January 4, 2010, for the benefit of Dylan A. Malugen and Jameson T. Malugen. Pursuant to the power and authority contained in such instrument, I hereby resign as Trustee effective January 1, 2017 and appoint that my successor Sarah Stelzner, whose address is 5745 Washington Blvd., Indianapolis, IN 46220, administer the aforementioned trust, from and after January 1, 2017. . . IN WITNESS THEREOE, I, Patricia Stelzner, hereby cause this instrament to be executed. , 5 PATRICIA STELZNER | fafa Date | Signed in the presence of as to Trustee: Barua Stophiasin ob Ausutueteutt, MEA MXC City or County and State | PRINT: GARPARA GO. STELHEASAA) ~Peecreene“ie“Ap bone of_Albvsvergue Ned Abe gi 0a. ; f City or County and State | | | print: Mavesey A. Sawnees a | : L, Sarah Stelzner, was appointed as Successor Trustee in the Declaration of Trust of the Clardy A. Malugen Family Trust, dated January 4, 2010, for the benefit of Dylan A. Malugen and Jameson T. Malugen. Upon the resignation of the original Trustee, Patricia Stelzner, on January 1. 2017, I do hereby accept the terms and conditions of said Trust and agree to perform the duties and obligations of Trustee from that day forward. IN WITNESS WHEREOF, I, Sarah Stelzner, hereby cause this instrument to be executed. ek!Mba SARAH STELANER Date Signed in the presence of as to Successor Trustee: Mable f 4 / vo fo f op City Tmrmoarery va Py _ or County and State PRINT: 12/30/7600 fo g 4 —— fiaateen, Wh oYos4.epie! ofCvettencei Paik ‘Alearin City or County an State EXHIBIT “D” IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CASE NO: 2018-CA-4003 HODGES BROTHERS, INC., Plaintiff, v. SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, and CLARDY A. MALUGEN, individually, Defendants. intl SECOND AMENDED COMPLAINT FOR CONSTRUCTIONLIEN FORECLOSURE AND OTHER RELIEF Plaintiff, HODGES BROTHERS, INC., (“HODGES BROTHERS”) by and through its undersigned attorney, files its Second Amended Complaint for Construction Lien Foreclosure and Other Relief against the Defendants, SARAH STELZNER (“S. STELZNER”), as Trustee of the Clardy A. Malugen Family Trust (the “TRUST”), and CLARDY A. MALUGEN, (“C. MALUGEN”) individually, and shows as follows: COMMON ALLEGATIONS 1. This is an action for damages in excess of $15,000.00, exclusive of costs, interest and attorneys’ fees. 2. Venue is properly laid in Osceola County, Florida, pursuant to Chapter 47, Florida Statutes. 3. At all times material hereto, HODGES BROTHERS is and was a Florida corporation, with its principal place of business located at 620 S. Riverside Drive, New Smyrna Beach, Volusia County, Florida. 4, The TRUST is the owner of the real property located at 214 Celebration Blvd., Celebration, Osceola County, Florida, and more particularly described in paragraph seven (7) below. 5. S. STELZNER is the Trustee of the Trust. 6. C. MALUGEN is an individual who resides at 214 Celebration Blvd., Celebration, Osceola County, Florida. 7. On or about December 29, 2017, HODGES BROTHERS and the TRUST entered into a written agreement ("the Agreement") pursuant to which HODGES BROTHERS was to provide services and furnish materials to install and replace the roof at the real property located at 214 Celebration Blvd., Celebration, Osceola County, Florida, more particularly described as: Lot 15 CELEBRATION NORTH VILLAGE UNIT 6, according to the map or plat thereof as recorded in Plat Book 9, Page 195, Public Records of Osceola County (‘the Property”). (A true and correct copy of the Agreement is attached hereto as Exhibit “A” and incorporated herein by reference.) 8. At all times material hereto, C.MALUGEN had the actual or apparent authority to act on behalf of the TRUST. 9, At all times material hereto, C.MALUGEN had the actual or apparent authority to contractually bind the TRUST and to act as agent for the TRUST for the following reasons, including but not limited to: a) by signing the Agreement with HODGES BROTHERS; b) by signing the Notice of Commencement on behalf ofthe TRUST; and Cc) by negotiating with, directing and dealing with HODGES BROTHERS with regard to the work performed pursuant to the Agreement. 2 10. If it is determined that there was not a direct contract between HODGES BROTHERS and the TRUST, then at all times material hereto, there was privity of contract by and between HODGES BROTHERS and the TRUST, as a common identity existed between C. MALUGEN, and the TRUST. 11. If it is determined that there was not a direct contract between HODGES BROTHERS and the TRUST, then at all times material hereto, there was privity of contract by and between HODGES BROTHERS and the TRUST, as the TRUST knew HODGES BROTHERS was working on the Property and the TRUST assumed the contractual obligation for the work performed by HODGES BROTHERS. 12. In the alternative to paragraph eight (8) above, if it is determined that C. MALUGEN did not act with actual or apparent authority with regard to HODGES BROTHERS, then a fraud was committed by C. MALUGEN pursuant to Section 713.21(1), Florida Statutes, by falsely signing the Agreement and the Notice of Commencement, to the detriment of HODGES BROTHERS, and to deprive HODGES BROTHERS of the benefits or rights of Chapter 713, Florida Statutes. 13. On or about January 30, 2018, HODGES BROTHERS began to furnish the services and materials for the improvement of the Property. 14, HODGES BROTHERS performed the services in a workmanlike manner and fully and completely discharged its obligations pursuant to the terms and conditions of the Agreement between the parties. 15, On or about February 14, 2018, HODGES BROTHERS forwarded to the TRUSTEE and C. MALUGEN its Invoice in the amount of $ 17,375.00. (A true and correct copy of the Invoice dated February 14, 2018, is attached hereto as Exhibit “B” and incorporated herein by reference.) 3 16. Despite the Agreement between the parties, and despite the repeated demands of HODGES BROTHERS, the TRUST and C. MALUGEN have refused to pay the outstanding sums due and owing to HODGES BROTHERS. (A true and correct copy of a demand letter from counsel for HODGES BROTHERS to C. MALUGEN dated March 16, 2018, [with attached copies of the Agreement, Invoice, draft Claim of Lien and Certified Return Receipt] is attached hereto as Exhibit “C” and incorporated herein by reference.) 17. |HODGES BROTHERS has performed all conditions precedent to the bringing of this action or such conditions have been excused or waived. 18. | HODGES BROTHERS has retained the undersigned law firm to represent it in this action and is entitled to an award of attorneys’ fees and costs pursuant to the Agreement between the parties, and pursuant to Sections 713.29 and 57.105, Florida Statutes, and as set forth in each count below. COUNT I FORECLOSURE OF CONSTRUCTION LIEN 19. This is an action against the TRUST to foreclose a construction lien on the Property pursuant to Chapter 713, Florida Statutes. 20. Paragraphs one (1) through eighteen (18) are realleged and incorporated by reference, as if set forth herein. 2i. At all times material to this action, HODGES BROTHERS and the TRUST were parties to the Agreement for HODGES BROTHERS to provide improvements to the Property. 22. Beginning on or about January 30, 2018, HODGES BROTHERS delivered the materials and labor for use and incorporation into the Property, for the improvement of the Property. 23. | The TRUST has failed to make payment to HODGES BROTHERS for the labor, services and materials provided for the improvement to the Property. 4 24. HODGES BROTHERS furnished the first of the items under the Agreement on January 30, 2018, and the last of the items on February 7, 2018; the work or materials having a total value of Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00, of which there remains unpaid Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00); although HODGES BROTHERS has made repeated demands, the TRUST has failed and refused to pay the unpaid balance. 25. HODGES BROTHERS was not required to serve a Notice to Owner upon the TRUST, as it had a direct contract with the TRUST. In the alternative, HODGES BROTHERS was not required to serve a Notice to Owner upon the TRUST for the reasons set forth in paragraphs nine (9) and ten (10) above. 26. Although not required, in an abundance of caution, on or about February 16, 2018, HODGES BROTHERS caused a Notice to Owner to be served upon the TRUST, in accordance with Section 713.06, Florida Statutes. (A true and correct copy of the Notice to Owner is attached hereto as Exhibit “D” and incorporated herein by reference). 27. On or about May 3, 2018, HODGES BROTHERS recorded, in the office of the Clerk of the Circuit Court in and for Osceola County, Florida, at O.R. Book 5327, Page 2626, a Claim of Lien against the Property. (A true and correct copy of the Claim of Lien is attached hereto as Exhibit “E” and incorporated herein by reference). 28. Onor about May 17, 2018, HODGES BROTHERS causeda true and correct copy of the recorded Claim of Lien to be served upon the TRUST, via Certified Mail, Return Receipt Requested. (True and correct copies of the transmittal letter and Certified Return Receipt are attached hereto as Composite Exhibit “F” and incorporated herein by reference). 29. On or about November 29, 2018, HODGES BROTHERS caused a Contractor’s Final Payment Affidavit to be served upon the TRUST, via Certified Mail, Return Receipt Ss) Requested. (True and correct copies of the transmittal letter and Certified Return Receipt are attached hereto as Composite Exhibit “G” and incorporated herein by reference). 30. HODGES BROTHERS has substantially performed all conditions precedent required pursuant to the Agreement and all statutory prerequisites under the Florida Construction Lien law, or such prerequisites have been waived or excused. HODGES BROTHERS has brought this action within the time specified in Section 713.22, Florida Statutes. 31. There remains due and unpaid to HODGES BROTHERS the total sum of Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00). Despite HODGES BROTHERS' demand for payment, the TRUST has refused and failed to pay same. 32. HODGES BROTHERS is entitled to an award of attorneys’ fees pursuant to Section 713.29, Florida Statutes. WHEREFORE, HODGES BROTHERS demands judgment confirming, enforcing and foreclosing the construction lien, setting the subject real property for sale, damages in the amount of $17,375.00, against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post- judgment interest, court costs, attorneys’ fees pursuant to Section 713.29, Florida Statutes, and such further and other relief as this Court may deem just and proper. COUNT TT BREACH OF THE AGREEMENT AGAINST THE TRUST 33. This is a cause of action for breach of the Agreement between HODGES BROTHERS and the TRUST. 34. Paragraphs one (1) through eleven (11) and thirteen (13) through eighteen (18) are realleged and incorporated by reference, as if set forth herein. 6 35. The TRUST breached the Agreement with HODGES BROTHERS by failing to pay to HODGES BROTHERS the sums due and owing to it. 36, By virtue of the breach of the Agreement by the TRUST, HODGES BROTHERS has been damaged, and continues to suffer damages. 37. HODGES BROTHERS is entitled to an award of attorneys’ fees pursuant to the terms of the Agreement between the parties. WHEREFORE, HODGES BROTHERS demands judgment in the amount of $17,375.00, against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment interest, court costs, attorneys’ fees pursuant to Section 713.29, Florida Statutes, and such further and other relief as this Court may deem just and proper. COUNT IU BREACH OF THE AGREEMENT AGAINST C. MALUGEN 38. In the alternative to Count IJ, this is a cause of action for breach of the Agreement between HODGES BROTHERS and C. MALUGEN. 39, Paragraphs one (1) through eleven (11), thirteen (13) through eighteen (18), and twenty (20) through twenty-two (22) are realleged and incorporated by reference, as if set forth herein. 40. C. MALUGEN breached the Agreement with HODGES BROTHERS by failing to pay to HODGES BROTHERS the sums due and owing to it. Al, By virtue of the breach of the Agreement by C. MALUGEN, HODGES BROTHERS has been damaged, and continues to suffer damages. 42. HODGES BROTHERS is entitled to an award of attorneys’ fees pursuant to the terms of the Agreement between the parties. 7 WHEREFORE, HODGES BROTHERS demands judgment in the amount of $17,375.00, against CLARDY A. MALUGEN, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment interest, court costs, attorneys’ fees pursuant to Section 713.29, Florida Statutes, and such further and other relief as this Court may deem just and proper. COUNT IV ACCOUNT STATED AGAINST THE TRUST 43. This is a cause of action for account stated against the TRUST. 44. Paragraphs one (1) through eleven (11), thirteen (13) through eighteen (18), and twenty-one (21) through twenty-three (23) are realleged and incorporated by reference, as if set forth herein. 45. Before the institution of this action, HODGES BROTHERS and the TRUST had business transactions between them and on or about February 7, 2018, they agreed to the resulting balance. 46. HODGES BROTHERS rendered statements of it to the TRUST, and the TRUST did not object to the statements. A true and correct copy of the final statement dated February 14, 2018, is attached hereto as Exhibit "B" and incorporated herein by reference. 47. The TRUST owes HODGES BROTHERS $17,375.00 that is due with interest thirty (30) days after receipt of each invoice on the account. WHEREFORE, HODGES BROTHERS demands judgment for damages in the amount of $17,375.00 against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, together with court costs, pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment interest, court costs and such further and other relief as this Court may deem just and proper. 8 COUNTY. ACCOUNT STATED AGAINST CLARDY A. MALUGEN 48. In the alternative to Count IV, this is a cause of action for account stated against C. MALUGEN. 49, Paragraphs one (1) through eleven (11), thirteen (13) through eighteen (18), and thirty-nine (39) through forty (40) are realleged and incorporated by reference, as if set forth herein. 50. Before the institution of this action, HODGES BROTHERS and C. MALUGEN had business transactions between them and on or about February 7, 2018, they agreed to the resulting balance. 51. HODGES BROTHERS rendered statements of it to C. MALUGEN, and C. MALUGEN did not object to the statements. A true and correct copy of the final statement dated February 14, 2018, is attached hereto as Exhibit "B" and incorporated herein by reference. $2. C, MALUGEN owes HODGES BROTHERS $17,375.00 that is due with interest thirty (30) days after receipt of each invoice on the account. WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00 against CLARDY A. MALUGEN, together with court costs, pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment interest, court costs, and such further and other relief as this Court may deem just and proper. COUNT VI OPEN ACCOUNT AGAINST THE TRUST 53. This is a cause of action for open account against the TRUST. 54. Paragraphs one (1) through ten (10), twelve (12) through seventeen (17), and twenty (20) through twenty-two (22) are realleged and incorporated by reference, as if set forth herein. 55. The TRUST owes HODGES BROTHERS $17,375.00 that is due with interest since thirty days (30) after receipt of invoice #5862 on the account. (A true and correct copy of the final 9 statement dated February 14, 2018, is attached hereto as Exhibit "B" and incorporated herein by reference.) WHEREFORE, HODGES BROTHERS demands judgment for damages in the amount of $17,375.00 against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post- judgment interest, court costs, and such further and other relief as this Court may deem just and proper. COUNT Vil OPEN ACCOUNT AGAINST CLARDY A. MALUGEN 56. In the alternative to Count VI, this is a cause of action for open account against C. MALUGEN. 37. Paragraphs one (1) through ten (10), twelve (12) through seventeen (17), and forty (40) through forty-two (42) are realleged and incorporated by reference, as if set forth herein. 38. C. MALUGEN owes HODGES BROTHERS $17,375.00 that is due with interest since thirty days (30) after receipt of invoice #5862 on the account. (A true and correct copy of the final statement dated February 14, 2018, is attached hereto as Exhibit "B" and incorporated herein by reference.) WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00 against CLARDY A. MALUGEN, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment interest, court costs, and such further and other relief as this Court may deem just and proper. COUNT Vill QUANTUM MERUIT AGAINST THE TRUST 59. This is acause of action for quantum meruit against the TRUST. 10 60. Paragraphs one (1) through six (6), thirteen (13) through eighteen (18) and twenty- one (21) through twenty-three (23) are realleged and incorporated by reference, as if set forth herein. 61. HODGES BROTHERS provided materials and performed services for the improvement and renovation of the Property owned by the TRUST and for the use and benefit of the TRUST. 62. HODGES BROTHERS provided the materials and performed the services for the TRUST with the expectation of being compensated and did not act as a volunteer in performing the work, 63. The reasonable value of the labor, services and materials for which HODGES BROTHERS has not been paid by the TRUST is Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00). 64. HODGES BROTHERS has suffered damages in the amount of Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00), and continues to suffer damages. WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00, against SARAH STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment interest, court costs, and such further and other relief as this Court may deem just and proper. COUNT IX 65. In the alternative to Count VIL, this is a cause of action for quantum meruit against C. MALUGEN. 66. Paragraphs one (1) through six (6), thirteen (13) through eighteen (18) and forty (40) through forty-one (41) are realleged and incorporated by reference, as if set forth herein. 11 67. HODGES BROTHERS provided materials and performed services for the improvement and renovation of the Property occupied by CLARDY A. MALUGEN and for the use and benefit C. MALUGEN. 68. | HODGES BROTHERS provided the materials and performed the services for C. MALUGEN with the expectation of being compensated and did not act as a volunteer in performing the work. 69. The reasonable value of the labor, services and materials for which HODGES BROTHERS has not been paid by C. MALUGEN is Seventeen Thousand Three Hundred Seventy- Five and 00/100 Dollars ($17,375.00). 70. | HODGES BROTHERS has suffered damages in the amount of Seventeen Thousand Three Hundred Seventy-Five and 00/100 Dollars ($17,375.00) and continues to suffer damages. WHEREFORE, HODGES BROTHERS demands judgment for damages of $17,375.00, CLARDY A. MALUGEN, jointly and severally, together with pre-judgment interest at the rate of eighteen percent (18%) per annum, post-judgment interest, court costs, and such further and other relief as this Court may deem just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was furnished by electronic mail on _, 2020, to: ROUSELLE A. SUTTON, Ill, ESQ., BRIAN CHRISTOPHER WALKER, ESQ., Thompson, Jaglal & Sutton, P.A., 4767 New Broad Street, Orlando, FL 328714 bo.sutton thompsonjaglal.com; brian.walker(@thompsonjaglal.com: and ANDREW V. SHOWEN, ESQ., Hill, Rugh, Keller & Main, P.L., 390 North Orange Avenue, Suite 1610, Orlando, FL 32801 filings‘ hrkmlaw.com. THOMASF.NEALt™” Florida Bar Number 603368 tneal@dsklawgroup.com Inovak@dsklawgroup.com de Beaubien, Simmons, Knight, Mantzaris & Neal, L.L.P. 12 332 North Magnolia Avenue Post Office Box 87 Orlando, Florida 32802-0087 Telephone: (407) 422-2454 Facsimile: (407) 849-1845 Attorneys for Plaintiff 13 ; i t | . : i i | | | |i 3 __ EXHIBIT “A” | i. 3 | | L- ; | shy Bopens miormnae ne. eee, 5ia ; §88.Bonita Averiuée : : yo : pre shat core conn © ane ncres ametuen gansnt . & aot |, New Smyrna.Beach, #L.32169 ncataie aaa NO| Wocnaiadsy CocEsisies = i. 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