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Filing # 107980078 E-Filed 05/27/2020 10:37:44 AM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
Case No.: 2018-CA-4003
HODGES BROTHERS, INC.,
Plaintiff,
PATRICIA STELZNER, as Trustee of the CLARDY A.
MALUGEN FAMILY TRUST, and CLARDY A.
MALUGEN, individually,
Defendants.
a
CLARDY A. MALUGEN’S ANSWER AND AFFIRMATIVE DEFENSES
TO AMENDED COMPLAINT
Defendant, CLARDY A. MALUGEN (“Ms. Malugen’’), by and through her undersigned
attorneys, answers HODGES BROTHERS, INC.’s (“Hodges Brothers”) Amended Complaint for
Construction Lien Foreclosure and Other Relief (the “Complaint”) and states the following:
COMMON ALLEGATIONS
1. Ms. Malugen admits for jurisdictional purposes only. Otherwise, denied.
2. Ms. Malugen admits for purposes of venue only. Otherwise, denied.
3. Ms. Malugen is without knowledge and demands strict proof thereof.
4. Ms. Malugen admits that the Clardy A. Malugen Family Trust is the owner of the real
property located at 214 Celebration Blvd., Celebration, Florida 34747. Otherwise, denied.
5. Denied.
6. Ms. Malugen admits that she currently resides, at 214 Celebration Blvd., Celebration,
Florida 34747 on a temporary basis while her primary home is repaired. Otherwise, denied.
7. Ms. Malugen admits she entered into the Agreement; the terms of the Agreement speak
for themselves. Otherwise denied.
8. Ms. Malugen admits she had the actual or apparent authority to enter into the
Agreement; the terms of the Agreement speak for themselves. Otherwise denied.
9. Denied.
10. — Denied.
11. — Denied.
12. — Denied.
13. Ms. Malugen is without knowledge and demands strict proof thereof.
14. Denied.
15. Denied.
16. — Denied.
17. Denied.
18. — Denied.
COUNT
I
FORECLOSURE OF CONSTRUCTION LIEN
19. | Ms. Malugen admits that Hodges Brothers has brought a foreclosure count regarding the
real property located at 214 Celebration Blvd., Celebration, Florida 34747. Otherwise denied.
20. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 18 above.
21. | Ms. Malugen admits she entered into the Agreement on behalf of the Trust; the terms of
the Agreement speak for themselves. Otherwise denied.
22. Ms. Malugen is without knowledge and demands strict proof thereof.
23. Denied.
24. ~~ Denied.
25. Denied.
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26. Denied.
27. Ms. Malugen admits that a claim of lien was recorded and is attached to the Complaint
as Exhibit E. Otherwise, denied.
28. Ms. Malugen admits that a claim of lien was served upon Ms. Malugen attached to the
Complaint as Exhibit E. Otherwise, denied.
29. Ms. Malugen admits that a Contractor’s Final Affidavit was served upon Ms. Malugen.
Otherwise, denied.
30. = Denied.
31. — Denied.
32. — Denied.
COUNT
IH
BREACH OF THE AGREEMENT AGAINST THE TRUST
33. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied.
34. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 11 and 13 through 18 above.
35. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied.
36. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied.
37. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied.
COUNT IM
BREACH OF THE AGREEMENT AGAINST C. MALUGEN
38. | Ms. Malugen admits that Hodges Brothers has brought a breach of contract claim
against Malugen. Otherwise denied.
39. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 11, 13 through 18, and 20 through 22 above.
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40. Denied.
41. Denied.
42. Denied.
COUNT IV
ACCOUNT STATED AGAINST THE TRUST
43. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore
denied.
44. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 11, 13 through 18, and 21 through 23 above.
45. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore
denied.
46. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore
denied.
47. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore
denied.
COUNT V
ACCOUNT STATED AGAINST CLARDY A. MALUGEN
48. | Ms. Malugen admits that Hodges Brothers has brought a claim for account stated against
Ms. Malugen. Otherwise denied.
49. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 11, 13 through 18, and 39 through 40 above.
50. — Denied.
51. Denied.
52. Denied.
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COUNT
VI
OPEN ACCOUNT AGAINST THE TRUST
53. Ms. Malugen states that Count VI is not directed towards Ms. Malugen; therefore
denied.
54. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 10, 12 through 17, and 20 through 22 above.
55. Ms. Malugen states that Count VI is not directed towards Ms. Malugen; therefore
denied.
COUNT VII
OPEN ACCOUNT AGAINST CLARDY A. MALUGEN
56. | Ms. Malugen admits that Hodges Brothers has brought a claim for open account against
Ms. Malugen. Otherwise denied.
57. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 10, 12 through 17, and 40 through 42 above.
58. — Denied.
COUNT VIII
QUANTUM MERUIT AGAINST THE TRUST
59. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore
denied.
60. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 6, 13 through 18, and 21 through 23 above.
61. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore
denied.
62. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore
denied.
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63. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore
denied.
64. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore
denied.
COUNT IX
QUANTUM MERUIT AGAINST CLARDY A. MALUGEN
65. | Ms. Malugen admits Hodges Brothers attempts to allege a cause of action for quantum
meruit against Ms. Malugen. Otherwise, denied.
66. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in
paragraphs | through 6, 13 through 18, and 40 through 41 above.
67. Denied.
68. Denied.
69. Denied.
70. Denied.
AFFIRMATIVE DEFENSES
General Allegation to Be Incorporated Into Affirmative Defenses
While performing its work Hodges Brothers broke a pipe that caused water to damage the
interior of the home, including its components, its fixtures, its furnishings and personal property
located therein (““Pipe-Related Damage’’).
Hodges Brothers has not repaired, caused to be repaired, paid or caused to be paid the full
amount to rectify the Pipe-Related Damage. The Amount of the Pipe-Related Damage exceeds the
amount of the Agreement.
Hodges Brothers work was not done in a workmanlike manner and resulted in construction
defects, which have caused water to enter the home and cause damage to the interior of the home,
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including its components, its fixtures, its furnishings and personal property located therein, also
causing and continue to cause Malugen to suffer personal injury in addition to the property related
damages (“Roofing-Related Damage”).
Hodges Brothers has not repaired, caused to be repaired, paid or caused to be paid an amount to
rectify the Roofing-Related Damage. The Amount of the Roofing-Related Damage exceeds the
amount of the Agreement.
First Affirmative Defense
1. Hodges Brothers has not obtained jurisdiction over the Trust or its trustee. Hodges
Brothers has failed to assert a claim of law upon which relief may be granted.
Second Affirmative Defense
2. Hodges Brothers failed to serve a Notice to Owner. Hodges Brothers has failed to assert
a lien claim of law upon which relief may be granted. The lien claim is barred as a
matter of law.
Third Affirmative Defense
3. Ms. Malugen is entitled to a setoff from the Agreement for the damage caused by the
Pipe-Related Damage and Roofing-Related Damage, which completely offset the
balance of the Agreement.
Fourth Affirmative Defense
4. Ms. Malugen affirmatively states that no monies are owed to Hodges Brothers because it
committed a prior breach of the Agreement by failing to perform its work in a
workmanlike manner, install the materials in accordance with the Florida Building Code
and manufacturer’s installation specifications, as well as failed to use new roofing
and/or flashing accessories as required by the Agreement.
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Fifth Affirmative Defense
5. Ms. Malugen affirmatively states that Hodges Brothers has failed to assert a claim of
law upon which relief may be granted. Hodges Brothers cannot resort to equity here
because there is an Agreement.
Sixth Affirmative Defense
6. Ms. Malugen affirmatively states that Hodges Brothers is not entitled to assert an
attorney fee claim, because its lien claim is invalid; Hodges Brother committed a prior
breach of the Contract and the monies allegedly owed under the breached Agreement are
completely offset by monies Hodges Brothers owes for the Pipe-Related Damage and
Roofing-Related Damage. Additionally, there is no claim for damages pursuant to the
Agreement, so any claim for such relief based on the Agreement is improper.
7. Ms. Malugen reserves the right to amend, add or withdraw affirmative defenses as they
become available and/or evident.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 27" day of May 2020, I electronically filed the foregoing with
the Clerk of the Court via the Florida Courts’ e-Filing Portal, pursuant to and in compliance with Rule
2.516, Florida Rules of Judicial Administration, which will complete service by furnishing a true and
correct copy of the foregoing via electronic mail to all counsel of record.
THOMPSON, JAGLAL & SUTTON, P.A.
/s/_ Anthony Jaglal
Rouselle A. Sutton, I Esq.
Florida Bar No. 027092
Anthony Jaglal, Esq.
Florida Bar No. 030408
4767 New Broad Street
Orlando, FL 32814
Tel: (407) 601-6604
Fax: (407) 514-2604
Email: —_bo.sutton@thompsonjaglal.com
ajaglal(@thompsonjaglal.com
Attorneys for Clardy A. Malugen
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Preview
Filing # 107980078 E-Filed 05/27/2020 10:37:44 AM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA Case No.: 2018-CA-4003 HODGES BROTHERS, INC., Plaintiff, PATRICIA STELZNER, as Trustee of the CLARDY A. MALUGEN FAMILY TRUST, and CLARDY A. MALUGEN, individually, Defendants. a CLARDY A. MALUGEN’S ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT Defendant, CLARDY A. MALUGEN (“Ms. Malugen’’), by and through her undersigned attorneys, answers HODGES BROTHERS, INC.’s (“Hodges Brothers”) Amended Complaint for Construction Lien Foreclosure and Other Relief (the “Complaint”) and states the following: COMMON ALLEGATIONS 1. Ms. Malugen admits for jurisdictional purposes only. Otherwise, denied. 2. Ms. Malugen admits for purposes of venue only. Otherwise, denied. 3. Ms. Malugen is without knowledge and demands strict proof thereof. 4. Ms. Malugen admits that the Clardy A. Malugen Family Trust is the owner of the real property located at 214 Celebration Blvd., Celebration, Florida 34747. Otherwise, denied. 5. Denied. 6. Ms. Malugen admits that she currently resides, at 214 Celebration Blvd., Celebration, Florida 34747 on a temporary basis while her primary home is repaired. Otherwise, denied. 7. Ms. Malugen admits she entered into the Agreement; the terms of the Agreement speak for themselves. Otherwise denied. 8. Ms. Malugen admits she had the actual or apparent authority to enter into the Agreement; the terms of the Agreement speak for themselves. Otherwise denied. 9. Denied. 10. — Denied. 11. — Denied. 12. — Denied. 13. Ms. Malugen is without knowledge and demands strict proof thereof. 14. Denied. 15. Denied. 16. — Denied. 17. Denied. 18. — Denied. COUNT I FORECLOSURE OF CONSTRUCTION LIEN 19. | Ms. Malugen admits that Hodges Brothers has brought a foreclosure count regarding the real property located at 214 Celebration Blvd., Celebration, Florida 34747. Otherwise denied. 20. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 18 above. 21. | Ms. Malugen admits she entered into the Agreement on behalf of the Trust; the terms of the Agreement speak for themselves. Otherwise denied. 22. Ms. Malugen is without knowledge and demands strict proof thereof. 23. Denied. 24. ~~ Denied. 25. Denied. 2 26. Denied. 27. Ms. Malugen admits that a claim of lien was recorded and is attached to the Complaint as Exhibit E. Otherwise, denied. 28. Ms. Malugen admits that a claim of lien was served upon Ms. Malugen attached to the Complaint as Exhibit E. Otherwise, denied. 29. Ms. Malugen admits that a Contractor’s Final Affidavit was served upon Ms. Malugen. Otherwise, denied. 30. = Denied. 31. — Denied. 32. — Denied. COUNT IH BREACH OF THE AGREEMENT AGAINST THE TRUST 33. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied. 34. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 11 and 13 through 18 above. 35. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied. 36. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied. 37. Ms. Malugen states that Count II is not directed towards Ms. Malugen; therefore denied. COUNT IM BREACH OF THE AGREEMENT AGAINST C. MALUGEN 38. | Ms. Malugen admits that Hodges Brothers has brought a breach of contract claim against Malugen. Otherwise denied. 39. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 11, 13 through 18, and 20 through 22 above. 3 40. Denied. 41. Denied. 42. Denied. COUNT IV ACCOUNT STATED AGAINST THE TRUST 43. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore denied. 44. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 11, 13 through 18, and 21 through 23 above. 45. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore denied. 46. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore denied. 47. Ms. Malugen states that Count IV is not directed towards Ms. Malugen; therefore denied. COUNT V ACCOUNT STATED AGAINST CLARDY A. MALUGEN 48. | Ms. Malugen admits that Hodges Brothers has brought a claim for account stated against Ms. Malugen. Otherwise denied. 49. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 11, 13 through 18, and 39 through 40 above. 50. — Denied. 51. Denied. 52. Denied. 4 COUNT VI OPEN ACCOUNT AGAINST THE TRUST 53. Ms. Malugen states that Count VI is not directed towards Ms. Malugen; therefore denied. 54. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 10, 12 through 17, and 20 through 22 above. 55. Ms. Malugen states that Count VI is not directed towards Ms. Malugen; therefore denied. COUNT VII OPEN ACCOUNT AGAINST CLARDY A. MALUGEN 56. | Ms. Malugen admits that Hodges Brothers has brought a claim for open account against Ms. Malugen. Otherwise denied. 57. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 10, 12 through 17, and 40 through 42 above. 58. — Denied. COUNT VIII QUANTUM MERUIT AGAINST THE TRUST 59. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore denied. 60. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 6, 13 through 18, and 21 through 23 above. 61. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore denied. 62. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore denied. 5 63. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore denied. 64. Ms. Malugen states that Count VIII is not directed towards Ms. Malugen; therefore denied. COUNT IX QUANTUM MERUIT AGAINST CLARDY A. MALUGEN 65. | Ms. Malugen admits Hodges Brothers attempts to allege a cause of action for quantum meruit against Ms. Malugen. Otherwise, denied. 66. Ms. Malugen realleges, incorporates, and asserts by reference the allegations set forth in paragraphs | through 6, 13 through 18, and 40 through 41 above. 67. Denied. 68. Denied. 69. Denied. 70. Denied. AFFIRMATIVE DEFENSES General Allegation to Be Incorporated Into Affirmative Defenses While performing its work Hodges Brothers broke a pipe that caused water to damage the interior of the home, including its components, its fixtures, its furnishings and personal property located therein (““Pipe-Related Damage’’). Hodges Brothers has not repaired, caused to be repaired, paid or caused to be paid the full amount to rectify the Pipe-Related Damage. The Amount of the Pipe-Related Damage exceeds the amount of the Agreement. Hodges Brothers work was not done in a workmanlike manner and resulted in construction defects, which have caused water to enter the home and cause damage to the interior of the home, 6 including its components, its fixtures, its furnishings and personal property located therein, also causing and continue to cause Malugen to suffer personal injury in addition to the property related damages (“Roofing-Related Damage”). Hodges Brothers has not repaired, caused to be repaired, paid or caused to be paid an amount to rectify the Roofing-Related Damage. The Amount of the Roofing-Related Damage exceeds the amount of the Agreement. First Affirmative Defense 1. Hodges Brothers has not obtained jurisdiction over the Trust or its trustee. Hodges Brothers has failed to assert a claim of law upon which relief may be granted. Second Affirmative Defense 2. Hodges Brothers failed to serve a Notice to Owner. Hodges Brothers has failed to assert a lien claim of law upon which relief may be granted. The lien claim is barred as a matter of law. Third Affirmative Defense 3. Ms. Malugen is entitled to a setoff from the Agreement for the damage caused by the Pipe-Related Damage and Roofing-Related Damage, which completely offset the balance of the Agreement. Fourth Affirmative Defense 4. Ms. Malugen affirmatively states that no monies are owed to Hodges Brothers because it committed a prior breach of the Agreement by failing to perform its work in a workmanlike manner, install the materials in accordance with the Florida Building Code and manufacturer’s installation specifications, as well as failed to use new roofing and/or flashing accessories as required by the Agreement. 7 Fifth Affirmative Defense 5. Ms. Malugen affirmatively states that Hodges Brothers has failed to assert a claim of law upon which relief may be granted. Hodges Brothers cannot resort to equity here because there is an Agreement. Sixth Affirmative Defense 6. Ms. Malugen affirmatively states that Hodges Brothers is not entitled to assert an attorney fee claim, because its lien claim is invalid; Hodges Brother committed a prior breach of the Contract and the monies allegedly owed under the breached Agreement are completely offset by monies Hodges Brothers owes for the Pipe-Related Damage and Roofing-Related Damage. Additionally, there is no claim for damages pursuant to the Agreement, so any claim for such relief based on the Agreement is improper. 7. Ms. Malugen reserves the right to amend, add or withdraw affirmative defenses as they become available and/or evident. 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 27" day of May 2020, I electronically filed the foregoing with the Clerk of the Court via the Florida Courts’ e-Filing Portal, pursuant to and in compliance with Rule 2.516, Florida Rules of Judicial Administration, which will complete service by furnishing a true and correct copy of the foregoing via electronic mail to all counsel of record. THOMPSON, JAGLAL & SUTTON, P.A. /s/_ Anthony Jaglal Rouselle A. Sutton, I Esq. Florida Bar No. 027092 Anthony Jaglal, Esq. Florida Bar No. 030408 4767 New Broad Street Orlando, FL 32814 Tel: (407) 601-6604 Fax: (407) 514-2604 Email: —_bo.sutton@thompsonjaglal.com ajaglal(@thompsonjaglal.com Attorneys for Clardy A. Malugen 9