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Filing # 106474275 E-Filed 04/20/2020 05:19:58 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
HARRY BIEBERSTEIN,
Plaintiff,
Vv. Case No. 17-CA-917
GABRIEL KIRCHBERGER, CAROL DEVILLE,
SOUTHERN SHORES ENTERPRISES, LLC,
a Florida limited liability company, and
MOONSTONE HOLDINGS, LLC, a Nevada
limited liability company,
Defendants.
/
PLAINTIFF’S REPLY TO AND MOTION TO STRIKE
MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER,
AND NICLAS KIRCHBERGER’S AFFIRMATIVE DEFENSES
Plaintiff, HARRY BIEBERSTEIN, by and through undersigned counsel and pursuant to
Rules 1.100(a), 1.140(b), and 1.140(f) of the Florida Rules of Civil Procedure, replies to and moves
to strike the affirmative defenses of Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE
FRAZER, and NICLAS KIRCHBERGER and states:
1 Florida Rule of Civil Procedure 1.140(b) mandates that “[e]very defense in law or
fact to a claim for relief in a pleading shall be asserted in the responsive pleading,” and “[t]he
grounds upon which the enumerated defenses are based and the substantial matters of law intended
to be argued shall be stated specifically and with particularity in the responsive pleading or
motion.” /d.
2 Case law further provides that all affirmative defenses must be pled “with enough
specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being
advanced.” Woodfield v. Bowman, 193 F.3d 354, 361 (Sth Cir. 1999). Simply stated, a bare legal
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conclusion or conclusory statement is, as a matter of law, legally insufficient. See, e.g., Bliss v.
Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982)(delineating that “[c]ertainty is required
when pleading defenses ., and pleading conclusions of law unsupported by allegations of
ultimate fact is legally insufficient.”); accord Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d
136, 138 (Fla. 4th DCA 1988).
3 As the court emphasized in Zito v. Washington Fed. Sav. & Loan Assoc. of Miami
Beach, Inc., 318 So. 2d 175, 176 (Fla. 3d DCA 1975), “the requirement of certainty will be insisted
upon in the pleading of a defense; and the certainty required is that the pleader must set forth facts
in such a manner as to reasonably inform his adversary of what is proposed to be proved in order
to provide the latter with a fair opportunity to meet it and prepare evidence.”
4 Pursuant to the aforementioned case law and the Florida Rules of Civil Procedure,
Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS
KIRCHBERGER’S affirmative defenses should be stricken because they are not pled with
sufficient specificity and factual particularity to comply with the legal standard.
5 The First Affirmative Defenses states:
Statute of Limitations — All claims as to Moonstone Holdings, LLC, Christine
Frazer, and Niclas Kirchberger are barred by Section 95.11(20(a) (sic), of
Florida Statutes.
6. Section 95.11(2)(a), Fla. Stat. only governs an “action on a judgment,” which
denotes a specific common law cause of action whereby the plaintiff obtains a new judgment to
facilitate the ultimate goal of securing satisfaction of the original cause of action. Burshan v. Nat.
Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835, 840-41 (Fla. 4th DCA 2001). It is used
when the limitation period on the judgment has nearly expired in order to start the limitation period
anew by obtaining a new judgment. /d. Plaintiff has not alleged a common law action on a
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judgment claim against Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER,
and NICLAS KIRCHBERGER. As a result, this defense is immaterial and impertinent which
renders it subject to being stricken under Rule 1.140(f).
7
Moreover, because the First Affirmative Defense is merely a legal conclusion and
fails to state any ultimate facts, it is subject to being stricken under Rule 1.140(b).
8 The Second Affirmative Defense states:
Laches — Any and all claims as to Moonstone Holdings, LLC and Niclas
Kirchberger are barred by laches as Plaintiffs failure to pursue any allegations in a
timely and expedient fashion was detrimental to Moonstone and Niclas Kirchberger.
9 Defendants, MOONSTONE HOLDINGS, LLC, and NICLAS KIRCHBERGER
fail to allege the proper elements to assert a defense for laches. In order for a defendant to avail
himself of the defense of laches, the necessary elements are: (a) conduct on the part of the
defendant, or on the part of one under whom he claims, giving rise to the situation of which the
complaint is made; (b) the plaintiff, having had knowledge of the defendant's conduct, and having
been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit; (c) lack
of knowledge on the defendant's part that the plaintiff will assert the right on which he bases his
suit; and (d) injury or prejudice to the defendant in the event relief is accorded to the plaintiff or
the suit is held not to be barred. Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956). Reliance by the
party claiming estoppel must be reasonable and justifiable under the circumstances. W.R. Grace
& Co. v. Geodata Sves., 547 So. 2d 919, 924 (Fla. 1989).
10. In the instant matter, the Defendants do not attempt to show that the foregoing
elements are satisfied allege merely a legal conclusion and fail to state any ultimate facts,
accordingly, the Second Affirmative defense is subject to being stricken under Rule 1.140(b).
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11. The Third Affirmative Defense states:
Statute of Frauds — All claims as to Moonstone Holdings, LLC, Christine Frazer, and
Niclas Kirchberger, in particular as to as to (sic) Plaintiff's Exhibits 6-B, 6-C, 6-F, and 6-G
are barred by Fla Statute 725.01 of the Florida Statute of Frauds.
12. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and
NICLAS KIRCHBERGER do not have standing to attack the underlying debt acknowledgments,
as they are not defendants upon Count I and the defense is personal to GABRIEL
KIRCHBERBER. Of course, by virtue of the Judgment attached to the Revised Second Amended
Complaint as Exhibit 8, GABRIEL KIRCHBERGER is judicially estopped from raising this claim.
Accordingly, the raising of this defense by Defendants, MOONSTONE HOLDINGS, LLC,
CHRISTINE FRAZER, and NICLAS KIRCHBERGER is nothing more than an attempt to avoid
the estoppel that prevents GABRIEL KIRCHBERGER from denying personal liability under the
debt acknowledgments. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER,
and NICLAS KIRCHBERGER also fail to allege any ultimate facts and merely cite a legal
conclusion. Accordingly, this defense is subject to being stricken under Rule 1.140(b).
13. The Fourth Affirmative Defense states:
Lack of Standing — Plaintiff, Harry Biberstein (sic) holds no valid assignments
authorizing ownership of the debt acknowledgments and as such lacks standing to
pursue the allege causes of action.
14. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and
NICLAS KIRCHBERGER are not parties to the underlying Debt Acknowledgments or
Declaration of Assignment and therefore do not have standing to attack or challenge the Debt
Acknowledgments themselves or Plaintiff's standing as it relates to the Debt Acknowledgments.
See Clay County Land Tr. No. 08-04-25-0078-014-27, Orange Park Tr. Services, LLC v.
JPMorgan Chase Bank, Nat. Ass'n, 152 So. 3d 83, 84 (Fla. Ist DCA 2014) (holding that because
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appellant was not a party to the mortgage, appellee correctly asserts that appellant does not have
standing to challenge any violation of the mortgage terms. The borrower was the only party who
could plead nonperformance of these conditions precedent as required by Florida Rule of Civil
Procedure 1.120(c)) and Rouffe v. CitiMortgage, Inc., 241 So. 3d 870, 873 (Fla. 4th DCA 2018)
(finding that because legal heirs were not parties to the note and mortgage in this case, they lack
standing to challenge the borrower's rights and liabilities under the contract as opposed to
challenging only the amount of damages).
1S. Moreover, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE
FRAZER, and NICLAS KIRCHBERGER are not defendants to Count I which seeks to recover
the indebtedness from Gabriel Kirchberger, therefore the defenses available to Defendants,
MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER
should be limited to the causes of actions pled in Counts III, V, and VII. As a result, this defense
is immaterial and impertinent which renders it subject to being stricken under Rule 1.140(f). This
defense is also refuted by the Declaration of Assignment attached to the Revised Second Amended
Complaint as Exhibit “7” and fails to allege any ultimate facts and is merely a legal conclusion.
Accordingly, this defense is subject to being stricken under Rule 1.140(b).
16. The Fifth and Seventh Affirmative Defenses state:
Merger- Plaintiff previously sought relief on the alleged debt acknowledgments
in Ontario Canada and obtained a judgment as exhibited in Exhibit 8 of the
Plaintiff's complaint. Said are not enforceable in a separate action as they have
been extinguished by this merger into the previously entered Canadian
Judgment.
Election of Remedies - Plaintiff has previously obtained a judgment judgment
(sic) in Ontario, Canada limiting collection to assets held in Ontario, Canada.
17. As stated above, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE
FRAZER, and NICLAS KIRCHBERGER do not have standing to attack the underlying debt
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acknowledgments or “Canadian Judgment.” Moreover, Defendants, MOONSTONE HOLDINGS,
LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER are barred from asserting that the
debt acknowledgments have merged into the Canadian Judgment based upon res judicata.
GABRIEL KIRCHBERGER successfully maintained that the Canadian Judgment is not a money
judgment and is not enforceable as a money judgment outside of Ontario, Canada. It would be
inconsistent for Defendants to now maintain that the Debt Acknowledgments merged into the
Canadian Judgment on a world-wide basis.
18. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and
NICLAS KIRCHBERGER also misapply the election of remedies defense. The doctrine of the
election of remedies is an application of the doctrine of estoppel on the theory that the one electing
should not later be permitted to avail himself of an inconsistent course. Williams v. Robineau, 168
So. 644, 646 (Fla. 1936). Additionally, Florida has adopted the liberal rule interpreting the election
of remedies holding to be effective and raise an estoppel the remedies must be both coexistent and
inconsistent. /d. If the remedies are several and consistent, the election of one does not operate to
waive the others. /d. Only full satisfaction of the right asserted will raise an estoppel to the pursuit
of consistent remedies. An attempted exercise of an assumed remedy which turns out to be abortive
will not preclude one from resorting to another. /d.
19, In the present action, Plaintiff attempted to collect a debt owed to him in Canada
and while he did procure a judgment against Gabriel Kirchberger, he was ultimately unsuccessful
in collecting on the judgment and is now attempting to collect the same debt owed in Florida. The
remedies available to Plaintiff are consistent with his ultimate purpose and because he was unable
to recover on his Canadian Judgment, that does not preclude him from ever collecting the debt
owed to him in any other jurisdiction outside of Ontario, Canada.
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20. The arguments made from Defendants, MOONSTONE HOLDINGS, LLC,
CHRISTINE FRAZER, and NICLAS KIRCHBERGER should be disregarded as immaterial and
impertinent, rendering both defenses subject to striking under Rule 1.140(f).
21. The Sixth Affirmative Defense states:
Bona Fide Purchaser for Value — Niclas Kirchberger provided adequate and
reasonable consideration for the transfer of Moonstone Holdings, in May of
2019.
22. This affirmative defense fails to plead the elements of any legal defense recognized
under Florida Law and should be stricken. It is nothing more than a denial. Paragraphs 45-46 of
the Plaintiff's Revised Second Amended Complaint allege the transfer of Moonstone Holdings,
LLC to Niclas Kirchberger, the Judgment Debtors son, was made with the actual intent to hinder,
delay, or defraud creditors, without receiving reasonably equivalent value. The Sixth
Affirmative Defense as pled does not offer any ultimate facts concerning the transfer of Moonstone
Holding, LLC, nor does it offer any theory for avoidance. An affirmative defense is a defense
which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse,
justification, or other matter negating or limiting liability. St. Paul Mercury Ins. Co. v. Coucher,
837 So. 2d 483, 487 (Fla. Sth DCA 2002). Accordingly, this defense is subject to being stricken
under Rule 1.140(b).
23. The Eight Affirmative Defense states:
Good Faith Transfer — Any and all transfer of property between Kirchberger
and Moonstone were at a time when no judgment lien existed and as such were
made in good faith.
24. This affirmative defense fails to plead the elements of any legal defense recognized
under Florida Law and should be stricken. It is nothing more than a denial. The Eighth Affirmative
Defense as pled does not offer any ultimate facts concerning the transfer of property from
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Judgment Debtor, Gabriel Kirchberger and Moonstone Holding, LLC, nor does it offer any theory
for avoidance. An affirmative defense is a defense which admits the cause of action, but avoids
liability, in whole or in part, by alleging an excuse, justification, or other matter negating or
limiting liability. St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002).
25. Moreover, MOONSTONE HOLDINGS, LLC is estopped from claiming that it
paid more than $100.00 consideration for the properties further described in Paragraph 29 of the
Plaintiff's Revised Second Amended Complaint as a result of its failure to pay documentary stamp
taxes of more than $0.70 as shown by Exhibits 41, 43, and 45 of the Revised Second Amended
Complaint. The basic elements of estoppel include a false representation or concealment of
material facts. Rinker Materials Corp. v. Palmer First Nat'l Bank, 361 So. 2d 156, 157 (Fla.1978).
26. Here, MOONSTONE HOLDINGS, LLC had an obligation to pay a documentary
stamp tax of $0.70 for each $100 of consideration for the transfer of the property upon the
recording of the deed. § 201.02(1)(a), Fla. Stat. Because they failed to pay more than $0.70 in
documentary stamp taxes, MOONSTONE HOLDINGS, LLC is now estopped from claiming that
additional, good-faith consideration was paid.
27. Additionally, while no “judgment lien” existed at the time of the alleged transfers
in 2012, this fact is irrelevant. The Fraudulent Transfer Act does not even require that the creditor
first obtain a judgment against the debtor for the underlying claim. Bedwell v. Rucks, 127 So. 3d
533, 535 (Fla. 4th DCA 2012).
28. The Judgment Debtor, Gabriel Kirchberger was being sued by the Plaintiff in
Ontario, Canada. Pursuant to § 726.105(2)(d), a badge of fraud includes that before the transfer
was made, the debtor had been sued or threatened with suit. Accordingly, the Eighth Affirmative
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Defense should be disregarded as immaterial and impertinent, rendering both defense subject to
striking under Rule 1.140(f).
29. The Ninth Affirmative Defense states:
Indispensable Party — Plaintiff has failed to join and (sic) indispensable party,
Berlin HypoBank that maintains an interest in the alleged assignments
enumerated in the Plaintiff's revised Complaint.
30. As outlined previously, Defendants, MOONSTONE HOLDINGS, LLC,
CHRISTINE FRAZER, and NICLAS KIRCHBERGER lack standing to attack the Declaration of
Assignment and the Debt Acknowledgments attached to the Revised Second Amended Complaint.
Additionally, this affirmative defense fails to plead ultimate facts necessary to show how failure
to have Berlin Hypo Bank as parties result in Plaintiff's lack of standing to bring its claims against
Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS
KIRCHBERGER.
31. Additionally, “indispensable parties” are necessary parties so essential to a suit that
no final decision can be rendered without their joinder. Hertz Corp. v. Piccolo, 453 So. 2d 12 (Fla.
1984). Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS
KIRCHBERGER fail to state the alleged interest of Berlin Hypo Bank in the assignments is
essential that no final decision can be rendered without their joinder. Even assuming if Berlin Hypo
Bank had an interest, it does not automatically make it an indispensable party. As a result, this
defense is immaterial and impertinent which renders it subject to being stricken under Rule
1.140(f).
32. The Tenth Affirmative Defense states:
Declaratory Relief fails to State a Cause of Action — Plaintiff's Revised Complaint fails
to properly allege a justiciable controversy that is necessary to create a cause of action for
Declaratory Relief.
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33. This affirmative defense fails to state any ultimate facts as to why Count V of the
Revised Second Amended Complaint fails to properly allege a justiciable controversy and is
merely a legal conclusion. These failures render the defense subject to being stricken under Rule
1.140(b).
34. Plaintiff's declaratory action is not barred for failure to state a cause of action
because all required elements are alleged in Plaintiff's Revised Second Amended Complaint.
Specifically, in § 61-63 of the Revised Second Amended Complaint, Plaintiff alleges that
Moonstone Holdings, LLC is the alter-ego of Judgment Debtor, Gabriel Kirchberger, that
Moonstone Holdings, LLC, Gabriel Kirchberger and Niclas Kirchberger may contend that
Moonstone Holdings, LLC is not Gabriel Kirchberger’s alter ego (which was admitted in the
Answer of Moonstone Holdings, LLC, and Niclas Kirchberger further evidencing the justiciable
controversy), and the Plaintiff is in doubt as to the existence or non-existence of his rights and
privileges as to whether the assets of Moonstone Holdings, LLC are available in order to satisfy
the debt owed to the Plaintiff. Accordingly, this defense is immaterial and impertinent. On this
basis, the defense should be stricken pursuant to Rule 1.140(f).
35. The Eleventh Affirmative Defense states:
Fictional Entity — Moonstone Holdings, LLC operated lawfully and
independently at all times pertinent to the Revised Complaint which voids any
attempts to pierce the corporate veil or suggest and (sic) alter ego.
36. This affirmative defense fails to state: (1) which cause of action it is attempting to
avoid; (2) any ultimate facts; and (3) is merely a legal conclusion. These failures render the defense
subject to being stricken under Rule 1.140(b). Additionally, this affirmative defense fails to plead
the elements of any legal defense recognized under Florida Law and should be stricken as
immaterial and impertinent.
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37. The Twelfth Affirmative Defense states:
Mitigation of Damages - Plaintiff has failed to attache (sic) a statement of
Claim as alleged in the Revised Complaint. Any damages of Plaintiff should be
mitigated as a result of by (sic) Betterment to the properties in question.
38. As outlined above, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE
FRAZER, and NICLAS KIRCHBERGER do not have standing to attack the underlying debt
obligation owed by Judgment Debtor, Gabriel Kirchberger as it is immaterial to the causes of
action they are defending. Accordingly, this defense is immaterial and impertinent. On this basis,
the defense should be stricken pursuant to Rule 1.140(f).
39. This affirmative defense is also refuted by the Revised Second Amended Complaint
and accompanying Exhibits which attach the appropriate debt acknowledgments as well as
assignment to the Plaintiff. Moreover, the purpose of rule 1.130(a) is to apprise the defendant of
the nature and extent of the cause of action so that the defendant may plead with greater certainty.
Natl. Collegiate Student Loan Tr. 2006-4 v. Meyer, 265 So. 3d 715, 719 (Fla. 2nd DCA 2019).
The Exhibits attached to the Revised Second Amended Complaint apprise Defendants,
MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER of the
cause of action it is asserting so that the Defendants may plead with certainty.
40. Concerning the affirmative defense of “Betterment” Defendants, MOONSTONE
HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER have failed to allege
(1) which cause of action it is attempting to avoid or mitigate; (2) any ultimate facts; and (3) is
merely a legal conclusion. These failures render the defense subject to being stricken under Rule
1.140(b).
41. Additionally, betterment is not an affirmative defense to any of the alleged causes
of action against Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and
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NICLAS KIRCHBERGER. Accordingly, this defense is immaterial and impertinent. On this
basis, the defense should be stricken pursuant to Rule 1.140(f).
42. The Thirteenth Affirmative Defense states:
Failure to Attach Exhibit - Plaintiff has failed to attach a statement of claim
as alleged in the revised Complaint.
43. This affirmative defense is repetitive of the Twelfth Affirmative Defense and
accordingly, this defense is immaterial and impertinent. On this basis, the defense should be
stricken pursuant to Rule 1.140(f).
WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, requests entry of an Order striking the
affirmative defenses pled by Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE
FRAZER, and NICLAS KIRCHBERGER, replies to said affirmative defenses, and requests entry
of such other relief as the Court may deem appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I electronically filed the foregoing document on April 20, 2020
with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of
electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle,
Suite A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel
Kirchberger; David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101,
Punta Gorda, Florida 33950, at doaksesg@comeast.net, Counsel for Carol DeVille and Southern
Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road
PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings,
LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein,
P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at
60194005-2 12
Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants
Andreas Kirchberger and Golden Key Properties, LLC.
ADAMS AND REESE LLP
1515 Ringling Boulevard, Suite 700
Sarasota, Florida 34236
Primary: ryan.owen@arlaw.com
Secondary: drew.chesanek@arlaw.com
Secondary: deborah.woodson@arlaw.com
Phone: (941) 316-7600
Counsel for Harry Bieberstein
By:_/s/ Ryan W. Owen
Ryan W. Owen
Florida Bar No. 029355
Drew F. Chesanek
Florida Bar No. 115933
60194005-2 13
Preview
Filing # 106474275 E-Filed 04/20/2020 05:19:58 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION HARRY BIEBERSTEIN, Plaintiff, Vv. Case No. 17-CA-917 GABRIEL KIRCHBERGER, CAROL DEVILLE, SOUTHERN SHORES ENTERPRISES, LLC, a Florida limited liability company, and MOONSTONE HOLDINGS, LLC, a Nevada limited liability company, Defendants. / PLAINTIFF’S REPLY TO AND MOTION TO STRIKE MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, AND NICLAS KIRCHBERGER’S AFFIRMATIVE DEFENSES Plaintiff, HARRY BIEBERSTEIN, by and through undersigned counsel and pursuant to Rules 1.100(a), 1.140(b), and 1.140(f) of the Florida Rules of Civil Procedure, replies to and moves to strike the affirmative defenses of Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER and states: 1 Florida Rule of Civil Procedure 1.140(b) mandates that “[e]very defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading,” and “[t]he grounds upon which the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion.” /d. 2 Case law further provides that all affirmative defenses must be pled “with enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.” Woodfield v. Bowman, 193 F.3d 354, 361 (Sth Cir. 1999). Simply stated, a bare legal 60194005-2 conclusion or conclusory statement is, as a matter of law, legally insufficient. See, e.g., Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982)(delineating that “[c]ertainty is required when pleading defenses ., and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.”); accord Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 138 (Fla. 4th DCA 1988). 3 As the court emphasized in Zito v. Washington Fed. Sav. & Loan Assoc. of Miami Beach, Inc., 318 So. 2d 175, 176 (Fla. 3d DCA 1975), “the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare evidence.” 4 Pursuant to the aforementioned case law and the Florida Rules of Civil Procedure, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER’S affirmative defenses should be stricken because they are not pled with sufficient specificity and factual particularity to comply with the legal standard. 5 The First Affirmative Defenses states: Statute of Limitations — All claims as to Moonstone Holdings, LLC, Christine Frazer, and Niclas Kirchberger are barred by Section 95.11(20(a) (sic), of Florida Statutes. 6. Section 95.11(2)(a), Fla. Stat. only governs an “action on a judgment,” which denotes a specific common law cause of action whereby the plaintiff obtains a new judgment to facilitate the ultimate goal of securing satisfaction of the original cause of action. Burshan v. Nat. Union Fire Ins. Co. of Pittsburgh, PA, 805 So. 2d 835, 840-41 (Fla. 4th DCA 2001). It is used when the limitation period on the judgment has nearly expired in order to start the limitation period anew by obtaining a new judgment. /d. Plaintiff has not alleged a common law action on a 60194005-2 judgment claim against Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER. As a result, this defense is immaterial and impertinent which renders it subject to being stricken under Rule 1.140(f). 7 Moreover, because the First Affirmative Defense is merely a legal conclusion and fails to state any ultimate facts, it is subject to being stricken under Rule 1.140(b). 8 The Second Affirmative Defense states: Laches — Any and all claims as to Moonstone Holdings, LLC and Niclas Kirchberger are barred by laches as Plaintiffs failure to pursue any allegations in a timely and expedient fashion was detrimental to Moonstone and Niclas Kirchberger. 9 Defendants, MOONSTONE HOLDINGS, LLC, and NICLAS KIRCHBERGER fail to allege the proper elements to assert a defense for laches. In order for a defendant to avail himself of the defense of laches, the necessary elements are: (a) conduct on the part of the defendant, or on the part of one under whom he claims, giving rise to the situation of which the complaint is made; (b) the plaintiff, having had knowledge of the defendant's conduct, and having been afforded the opportunity to institute suit, is guilty of not asserting his rights by suit; (c) lack of knowledge on the defendant's part that the plaintiff will assert the right on which he bases his suit; and (d) injury or prejudice to the defendant in the event relief is accorded to the plaintiff or the suit is held not to be barred. Van Meter v. Kelsey, 91 So.2d 327 (Fla.1956). Reliance by the party claiming estoppel must be reasonable and justifiable under the circumstances. W.R. Grace & Co. v. Geodata Sves., 547 So. 2d 919, 924 (Fla. 1989). 10. In the instant matter, the Defendants do not attempt to show that the foregoing elements are satisfied allege merely a legal conclusion and fail to state any ultimate facts, accordingly, the Second Affirmative defense is subject to being stricken under Rule 1.140(b). 60194005-2 11. The Third Affirmative Defense states: Statute of Frauds — All claims as to Moonstone Holdings, LLC, Christine Frazer, and Niclas Kirchberger, in particular as to as to (sic) Plaintiff's Exhibits 6-B, 6-C, 6-F, and 6-G are barred by Fla Statute 725.01 of the Florida Statute of Frauds. 12. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER do not have standing to attack the underlying debt acknowledgments, as they are not defendants upon Count I and the defense is personal to GABRIEL KIRCHBERBER. Of course, by virtue of the Judgment attached to the Revised Second Amended Complaint as Exhibit 8, GABRIEL KIRCHBERGER is judicially estopped from raising this claim. Accordingly, the raising of this defense by Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER is nothing more than an attempt to avoid the estoppel that prevents GABRIEL KIRCHBERGER from denying personal liability under the debt acknowledgments. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER also fail to allege any ultimate facts and merely cite a legal conclusion. Accordingly, this defense is subject to being stricken under Rule 1.140(b). 13. The Fourth Affirmative Defense states: Lack of Standing — Plaintiff, Harry Biberstein (sic) holds no valid assignments authorizing ownership of the debt acknowledgments and as such lacks standing to pursue the allege causes of action. 14. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER are not parties to the underlying Debt Acknowledgments or Declaration of Assignment and therefore do not have standing to attack or challenge the Debt Acknowledgments themselves or Plaintiff's standing as it relates to the Debt Acknowledgments. See Clay County Land Tr. No. 08-04-25-0078-014-27, Orange Park Tr. Services, LLC v. JPMorgan Chase Bank, Nat. Ass'n, 152 So. 3d 83, 84 (Fla. Ist DCA 2014) (holding that because 60194005-2 appellant was not a party to the mortgage, appellee correctly asserts that appellant does not have standing to challenge any violation of the mortgage terms. The borrower was the only party who could plead nonperformance of these conditions precedent as required by Florida Rule of Civil Procedure 1.120(c)) and Rouffe v. CitiMortgage, Inc., 241 So. 3d 870, 873 (Fla. 4th DCA 2018) (finding that because legal heirs were not parties to the note and mortgage in this case, they lack standing to challenge the borrower's rights and liabilities under the contract as opposed to challenging only the amount of damages). 1S. Moreover, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER are not defendants to Count I which seeks to recover the indebtedness from Gabriel Kirchberger, therefore the defenses available to Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER should be limited to the causes of actions pled in Counts III, V, and VII. As a result, this defense is immaterial and impertinent which renders it subject to being stricken under Rule 1.140(f). This defense is also refuted by the Declaration of Assignment attached to the Revised Second Amended Complaint as Exhibit “7” and fails to allege any ultimate facts and is merely a legal conclusion. Accordingly, this defense is subject to being stricken under Rule 1.140(b). 16. The Fifth and Seventh Affirmative Defenses state: Merger- Plaintiff previously sought relief on the alleged debt acknowledgments in Ontario Canada and obtained a judgment as exhibited in Exhibit 8 of the Plaintiff's complaint. Said are not enforceable in a separate action as they have been extinguished by this merger into the previously entered Canadian Judgment. Election of Remedies - Plaintiff has previously obtained a judgment judgment (sic) in Ontario, Canada limiting collection to assets held in Ontario, Canada. 17. As stated above, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER do not have standing to attack the underlying debt 60194005-2 acknowledgments or “Canadian Judgment.” Moreover, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER are barred from asserting that the debt acknowledgments have merged into the Canadian Judgment based upon res judicata. GABRIEL KIRCHBERGER successfully maintained that the Canadian Judgment is not a money judgment and is not enforceable as a money judgment outside of Ontario, Canada. It would be inconsistent for Defendants to now maintain that the Debt Acknowledgments merged into the Canadian Judgment on a world-wide basis. 18. Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER also misapply the election of remedies defense. The doctrine of the election of remedies is an application of the doctrine of estoppel on the theory that the one electing should not later be permitted to avail himself of an inconsistent course. Williams v. Robineau, 168 So. 644, 646 (Fla. 1936). Additionally, Florida has adopted the liberal rule interpreting the election of remedies holding to be effective and raise an estoppel the remedies must be both coexistent and inconsistent. /d. If the remedies are several and consistent, the election of one does not operate to waive the others. /d. Only full satisfaction of the right asserted will raise an estoppel to the pursuit of consistent remedies. An attempted exercise of an assumed remedy which turns out to be abortive will not preclude one from resorting to another. /d. 19, In the present action, Plaintiff attempted to collect a debt owed to him in Canada and while he did procure a judgment against Gabriel Kirchberger, he was ultimately unsuccessful in collecting on the judgment and is now attempting to collect the same debt owed in Florida. The remedies available to Plaintiff are consistent with his ultimate purpose and because he was unable to recover on his Canadian Judgment, that does not preclude him from ever collecting the debt owed to him in any other jurisdiction outside of Ontario, Canada. 60194005-2 20. The arguments made from Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER should be disregarded as immaterial and impertinent, rendering both defenses subject to striking under Rule 1.140(f). 21. The Sixth Affirmative Defense states: Bona Fide Purchaser for Value — Niclas Kirchberger provided adequate and reasonable consideration for the transfer of Moonstone Holdings, in May of 2019. 22. This affirmative defense fails to plead the elements of any legal defense recognized under Florida Law and should be stricken. It is nothing more than a denial. Paragraphs 45-46 of the Plaintiff's Revised Second Amended Complaint allege the transfer of Moonstone Holdings, LLC to Niclas Kirchberger, the Judgment Debtors son, was made with the actual intent to hinder, delay, or defraud creditors, without receiving reasonably equivalent value. The Sixth Affirmative Defense as pled does not offer any ultimate facts concerning the transfer of Moonstone Holding, LLC, nor does it offer any theory for avoidance. An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability. St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. Sth DCA 2002). Accordingly, this defense is subject to being stricken under Rule 1.140(b). 23. The Eight Affirmative Defense states: Good Faith Transfer — Any and all transfer of property between Kirchberger and Moonstone were at a time when no judgment lien existed and as such were made in good faith. 24. This affirmative defense fails to plead the elements of any legal defense recognized under Florida Law and should be stricken. It is nothing more than a denial. The Eighth Affirmative Defense as pled does not offer any ultimate facts concerning the transfer of property from 60194005-2 Judgment Debtor, Gabriel Kirchberger and Moonstone Holding, LLC, nor does it offer any theory for avoidance. An affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability. St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002). 25. Moreover, MOONSTONE HOLDINGS, LLC is estopped from claiming that it paid more than $100.00 consideration for the properties further described in Paragraph 29 of the Plaintiff's Revised Second Amended Complaint as a result of its failure to pay documentary stamp taxes of more than $0.70 as shown by Exhibits 41, 43, and 45 of the Revised Second Amended Complaint. The basic elements of estoppel include a false representation or concealment of material facts. Rinker Materials Corp. v. Palmer First Nat'l Bank, 361 So. 2d 156, 157 (Fla.1978). 26. Here, MOONSTONE HOLDINGS, LLC had an obligation to pay a documentary stamp tax of $0.70 for each $100 of consideration for the transfer of the property upon the recording of the deed. § 201.02(1)(a), Fla. Stat. Because they failed to pay more than $0.70 in documentary stamp taxes, MOONSTONE HOLDINGS, LLC is now estopped from claiming that additional, good-faith consideration was paid. 27. Additionally, while no “judgment lien” existed at the time of the alleged transfers in 2012, this fact is irrelevant. The Fraudulent Transfer Act does not even require that the creditor first obtain a judgment against the debtor for the underlying claim. Bedwell v. Rucks, 127 So. 3d 533, 535 (Fla. 4th DCA 2012). 28. The Judgment Debtor, Gabriel Kirchberger was being sued by the Plaintiff in Ontario, Canada. Pursuant to § 726.105(2)(d), a badge of fraud includes that before the transfer was made, the debtor had been sued or threatened with suit. Accordingly, the Eighth Affirmative 60194005-2 Defense should be disregarded as immaterial and impertinent, rendering both defense subject to striking under Rule 1.140(f). 29. The Ninth Affirmative Defense states: Indispensable Party — Plaintiff has failed to join and (sic) indispensable party, Berlin HypoBank that maintains an interest in the alleged assignments enumerated in the Plaintiff's revised Complaint. 30. As outlined previously, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER lack standing to attack the Declaration of Assignment and the Debt Acknowledgments attached to the Revised Second Amended Complaint. Additionally, this affirmative defense fails to plead ultimate facts necessary to show how failure to have Berlin Hypo Bank as parties result in Plaintiff's lack of standing to bring its claims against Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER. 31. Additionally, “indispensable parties” are necessary parties so essential to a suit that no final decision can be rendered without their joinder. Hertz Corp. v. Piccolo, 453 So. 2d 12 (Fla. 1984). Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER fail to state the alleged interest of Berlin Hypo Bank in the assignments is essential that no final decision can be rendered without their joinder. Even assuming if Berlin Hypo Bank had an interest, it does not automatically make it an indispensable party. As a result, this defense is immaterial and impertinent which renders it subject to being stricken under Rule 1.140(f). 32. The Tenth Affirmative Defense states: Declaratory Relief fails to State a Cause of Action — Plaintiff's Revised Complaint fails to properly allege a justiciable controversy that is necessary to create a cause of action for Declaratory Relief. 60194005-2 33. This affirmative defense fails to state any ultimate facts as to why Count V of the Revised Second Amended Complaint fails to properly allege a justiciable controversy and is merely a legal conclusion. These failures render the defense subject to being stricken under Rule 1.140(b). 34. Plaintiff's declaratory action is not barred for failure to state a cause of action because all required elements are alleged in Plaintiff's Revised Second Amended Complaint. Specifically, in § 61-63 of the Revised Second Amended Complaint, Plaintiff alleges that Moonstone Holdings, LLC is the alter-ego of Judgment Debtor, Gabriel Kirchberger, that Moonstone Holdings, LLC, Gabriel Kirchberger and Niclas Kirchberger may contend that Moonstone Holdings, LLC is not Gabriel Kirchberger’s alter ego (which was admitted in the Answer of Moonstone Holdings, LLC, and Niclas Kirchberger further evidencing the justiciable controversy), and the Plaintiff is in doubt as to the existence or non-existence of his rights and privileges as to whether the assets of Moonstone Holdings, LLC are available in order to satisfy the debt owed to the Plaintiff. Accordingly, this defense is immaterial and impertinent. On this basis, the defense should be stricken pursuant to Rule 1.140(f). 35. The Eleventh Affirmative Defense states: Fictional Entity — Moonstone Holdings, LLC operated lawfully and independently at all times pertinent to the Revised Complaint which voids any attempts to pierce the corporate veil or suggest and (sic) alter ego. 36. This affirmative defense fails to state: (1) which cause of action it is attempting to avoid; (2) any ultimate facts; and (3) is merely a legal conclusion. These failures render the defense subject to being stricken under Rule 1.140(b). Additionally, this affirmative defense fails to plead the elements of any legal defense recognized under Florida Law and should be stricken as immaterial and impertinent. 60194005-2 10 37. The Twelfth Affirmative Defense states: Mitigation of Damages - Plaintiff has failed to attache (sic) a statement of Claim as alleged in the Revised Complaint. Any damages of Plaintiff should be mitigated as a result of by (sic) Betterment to the properties in question. 38. As outlined above, Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER do not have standing to attack the underlying debt obligation owed by Judgment Debtor, Gabriel Kirchberger as it is immaterial to the causes of action they are defending. Accordingly, this defense is immaterial and impertinent. On this basis, the defense should be stricken pursuant to Rule 1.140(f). 39. This affirmative defense is also refuted by the Revised Second Amended Complaint and accompanying Exhibits which attach the appropriate debt acknowledgments as well as assignment to the Plaintiff. Moreover, the purpose of rule 1.130(a) is to apprise the defendant of the nature and extent of the cause of action so that the defendant may plead with greater certainty. Natl. Collegiate Student Loan Tr. 2006-4 v. Meyer, 265 So. 3d 715, 719 (Fla. 2nd DCA 2019). The Exhibits attached to the Revised Second Amended Complaint apprise Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER of the cause of action it is asserting so that the Defendants may plead with certainty. 40. Concerning the affirmative defense of “Betterment” Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER have failed to allege (1) which cause of action it is attempting to avoid or mitigate; (2) any ultimate facts; and (3) is merely a legal conclusion. These failures render the defense subject to being stricken under Rule 1.140(b). 41. Additionally, betterment is not an affirmative defense to any of the alleged causes of action against Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and 60194005-2 11 NICLAS KIRCHBERGER. Accordingly, this defense is immaterial and impertinent. On this basis, the defense should be stricken pursuant to Rule 1.140(f). 42. The Thirteenth Affirmative Defense states: Failure to Attach Exhibit - Plaintiff has failed to attach a statement of claim as alleged in the revised Complaint. 43. This affirmative defense is repetitive of the Twelfth Affirmative Defense and accordingly, this defense is immaterial and impertinent. On this basis, the defense should be stricken pursuant to Rule 1.140(f). WHEREFORE, Plaintiff, HARRY BIEBERSTEIN, requests entry of an Order striking the affirmative defenses pled by Defendants, MOONSTONE HOLDINGS, LLC, CHRISTINE FRAZER, and NICLAS KIRCHBERGER, replies to said affirmative defenses, and requests entry of such other relief as the Court may deem appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that I electronically filed the foregoing document on April 20, 2020 with the Clerk of Court using the Florida Courts E-Filing Portal, which will send a notice of electronic filing to: Glenn N. Siegel, Esquire, Glenn N. Siegel, P.A., 17825 Murdock Circle, Suite A, Port Charlotte, Florida 33948, at kim@glennsiegellaw.com, Counsel for Gabriel Kirchberger; David K. Oaks, Esquire, David K. Oaks, P.A., 407 East Marion Avenue, Suite 101, Punta Gorda, Florida 33950, at doaksesg@comeast.net, Counsel for Carol DeVille and Southern Shore Enterprises, LLC, Robert W. Segur, Esquire, Robert W. Segur P.A., 2828 S. McCall Road PMB 56, Englewood, Florida 34224, at legal@segurlaw.net, Counsel for Moonstone Holdings, LLC, Niclas Kirchberger, and Christine Frazer; Christopher J. Klein, Esquire, Baur & Klein, P.A., New World Tower, Suite 2100, 100 North Biscayne Boulevard, Miami, Florida 33132, at 60194005-2 12 Cklein@worldwidelaw.com and Ocardonne@worldwidelaw.com, Counsel for Defendants Andreas Kirchberger and Golden Key Properties, LLC. ADAMS AND REESE LLP 1515 Ringling Boulevard, Suite 700 Sarasota, Florida 34236 Primary: ryan.owen@arlaw.com Secondary: drew.chesanek@arlaw.com Secondary: deborah.woodson@arlaw.com Phone: (941) 316-7600 Counsel for Harry Bieberstein By:_/s/ Ryan W. Owen Ryan W. Owen Florida Bar No. 029355 Drew F. Chesanek Florida Bar No. 115933 60194005-2 13