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Filing # 46796211 E-Filed 09/22/2016 02:16:34 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
LUCENDA COMPONENTS INC.,
a New York corporation
Plaintiff/Counter-Defendant,
v. Case No.: 2016-CA-006498-0
Division: 32
EXXELIA DEARBORN, INC., COMPLEX BUSINESS
a Florida corporation, f/k/a LITIGATION COURT
DEARBORN ELECTRONICS, INC.,
a Florida corporation
Defendant/Counter-Plaintiff.
/
PLAINTIFF’S/COUNTER-DEFENDANT’S ASWER AND AFFIRMATIVE
DEFENSES TO DEFENDANT/COUNTER-PLAINTIFF’S AMENDED
COUNTERCLAIMS
Plaintiff/Counter-Defendant, LUCENDA COMPONENTS INC., a New York
corporation (“Lucenda”), hereby sets forth its Answer and Affirmative Defenses to
Defendant/Counter-Plaintiff’s (“Exxelia”) Amended Counterclaims, and states as
follows:
ANSWER TO AMENDED COUNTERCLAIMS
For convenience and ease of reference, Lucenda uses certain section headings
used in Exxelia’s Amended Counterclaims. The use of such headings shall not
constitute or be interpreted as an admission by Lucenda of the truth of any matter
stated in any heading. To the extent any allegations contained in a section heading
may be deemed to require a response, they are denied
1. Lucenda admits that this purports to be an action for breach of contract,
conversion and unjust enrichment, but denies the remaining allegations set forth in
Paragraph 1.
PARTIES, JURISDICTION, AND VENUE
2. Lucenda admits the allegations in Paragraph 2.
3. Lucenda admits the allegations in Paragraph 3.
4. Lucenda admits the allegations in Paragraph 4.
5. Lucenda admits the allegations in Paragraph 5.
6. Lucenda denies the allegations in Paragraph 6.
GENERAL ALLEGATIONS
7. Lucenda admits the allegations in Paragraph 7 and further states that
the Consulting Agreement speaks for itself.
8. Lucenda admits the allegations in Paragraph 8 and further states that
the Consulting Agreement speaks for itself.
9. Lucenda admits the allegations in Paragraph 9 and further states that
the Consulting Agreement speaks for itself.
10. Lucenda admits the allegations in Paragraph 10 and further states that
the Consulting Agreement speaks for itself.
11. Lucenda admits the allegations in Paragraph 11 and further states that
the Consulting Agreement speaks for itself.
12. Lucenda admits the allegations in Paragraph 12 and further states that
the Consulting Agreement speaks for itself.
13. Lucenda admits the allegations in Paragraph 13 and further states that
the Consulting Agreement speaks for itself.
14. Lucenda admits the allegations in Paragraph 14 and further states that
the Consulting Agreement speaks for itself.
15. Lucenda admits the allegations in Paragraph 15.
16. Lucenda admits the allegations in Paragraph 16.
17. Lucenda admits the allegations in Paragraph 17.
18. Lucenda admits that Exxelia sent a payment in the amount of One
Hundred Thousand and No/100 Dollars ($100,000.00) via wire transfer to Lucenda;
otherwise denied.
19. Lucenda denies the allegations in Paragraph 19.
20. Lucenda admits that Exxelia, on August 12, 2016, sent a letter to
Lucenda and the Executive reiterating its termination of the Consulting Agreement,
which letter is attached to Exxelia’s Counterclaim as Exhibit “1,” and speaks for
itself.
21. Lucenda lacks sufficient knowledge or information to form a belief as
to the truth or falsity of the allegations in Paragraph 21, and therefore denies them.
COUNTERCLAIM I – BREACH OF CONTRACT
22. Lucenda’s answers to Paragraphs 1 through 21 are incorporated herein
by reference.
23. Lucenda admits the allegations in Paragraph 23.
24. Lucenda denies the allegations in Paragraph 24.
25. Lucenda denies the allegations in Paragraph 25.
26. Lucenda denies the allegations in Paragraph 26.
27. Lucenda denies the allegations in Paragraph 27.
28. Lucenda denies the allegations in Paragraph 28.
29. Lucenda denies the allegations in Paragraph 29.
30. Lucenda denies the allegations in Paragraph 30.
31. Lucenda denies the allegations in Paragraph 31.
Lucenda denies the allegations set forth in Exxelia’s prayer for relief.
COUNTERCLAIM II – CONVERSION
Lucenda has filed a Motion to Dismiss Counterclaim II for Conversion.
Lucenda’s Motion to Dismiss is currently pending before the Court. Therefore no
response is required at this time. To the extent a response is required, Lucenda denies
all allegations in Counterclaim II – Conversion.
COUNTERCLAIM III – UNJUST ENRICHMENT
Lucenda has filed a Motion to Dismiss Counterclaim III for Unjust
Enrichment. Lucenda’s Motion to Dismiss is currently pending before the Court.
Therefore no response is required at this time. To the extent a response is required,
Lucenda denies all allegations in Counterclaim III – Unjust Enrichment.
DEMAND FOR JURY TRIAL
Lucenda admits that Exxelia demands a trial by jury on all claims, defenses,
counterclaims and issues so triable.
GENERAL DENIAL
Lucenda denies each and every allegation and legal conclusion contained in
Exxelia’s Amended Counterclaims not expressly admitted herein.
AFFIRMATIVE DEFENSES
By way of separate and additional defenses, Lucenda asserts the following.
By virtue of asserting these defenses, Lucenda does not assume any burden of proof
not otherwise legally assigned to it:
FIRST AFFIRMATIVE DEFENSE
Exxelia’s recovery, if any, must be reduced by the amount of losses and/or
damages caused to Lucenda, as alleged in the Complaint, by Exxelia’s actions,
including but not limited to, Exxelia’s actions alleged in the Complaint.
SECOND AFFIRMATIVE DEFENSE
Lucenda is entitled to a setoff/recoupment for any amounts owed by Exxelia,
as alleged in the Complaint.
THIRD AFFIRMATIVE DEFENSE
Exxelia acted in bad faith and thus is barred from recovery, as alleged in the
Complaint.
FOURTH AFFIRMATIVE DEFENSE
Exxelia failed to mitigate, minimize or avoid all or a portion of the damages
which comprise its Counterclaims, as alleged in the Complaint.
FIFTH AFFIRMATIVE DEFENSE
Lucenda acted in good faith during the performance of its contractual duties,
including any compensation increases to itself or others.
SIXTH AFFIRMATIVE DEFENSE
Exxelia either expressly or impliedly consented to Lucenda’s compensation
increases.
SEVENTH AFFIRMATIVE DEFENSE
Exxelia was fully aware of Exxelia’s compensation increases, and ratified the
same.
EIGHTH AFFIRMATIVE DEFENSE
Exxelia’s counterclaim for conversion is barred because it is a mere attempt
to circumvent the contractual agreement of the parties, pursuant to the Consulting
Agreement, by making a claim for loss in tort. Exxelia fails to allege a tort
independent of the alleged contractual breach.
NINTH AFFIRMATIVE DEFENSE
Exxelia’s counterclaim for conversion fails to state a cause of action upon
which relief can be granted because Exxelia fails to identify any specific funds that
were allegedly converted by Lucenda.
TENTH AFFIRMATIVE DEFENSE
Exxelia’s counterclaim for unjust enrichment fails to state a cause of action
for which relief can be granted. Exxelia and Lucenda are parties to an express
contract, namely the Consulting Agreement. The actions Exxelia alleges in its
counterclaim for unjust enrichment arise from and/or relate to the parties’ Consulting
Agreement. As a result, Exxelia has an appropriate remedy at law, and the
counterclaim for unjust enrichment fails as a matter of law.
ELEVENTH AFFIRMATIVE DEFENSE
Exxelia’s claims are barred by the doctrine of waiver in that Exxelia was
aware of, and authorized, Lucenda’s alleged compensation increases, as well as the
payment in the amount of One Hundred Thousand and No/100 Dollars
($100,000.00) via wire transfer to Lucenda. Therefore, Exxelia waived its right to
object after the fact.
TWELFTH AFFIRMATIVE DEFENSE
Exxelia’s claims are barred by the doctrine of estoppel in that Exxelia was
aware of the existence of, and authorized, Lucenda’s compensation increases as well
as the payment in the amount of One Hundred Thousand and No/100 Dollars
($100,000.00) via wire transfer to Lucenda.
ADDITIONAL AFFIRMATIVE DEFENSE
Lucenda reserves the right to amend these Affirmative Defenses and add
others as discovery proceeds.
WHEREFORE, Plaintiff/Counter-Defendant, LUCENDA COMPONENTS
INC., requests that the Court deny the relief sought by Defendants in their
counterclaim and enter a judgment in its favor and against the Defendant/Counter-
Plaintiff, and for such other relief, at law or in equity, which this Court deems
appropriate.
Respectfully submitted this 22nd day of September, 2016.
/s/ Ryan Cipparone
Ryan Cipparone
Florida Bar No.: 85786
RCipparone@CipparonePA.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 22nd day of September, 2016, I
electronically filed the foregoing with the clerk of the Court through the Florida
Courts E-Filing Portal System which will send notice of electronic filing and will
complete service of the foregoing as required by Florida Rules of Judicial
Administration 2.516 to the following individuals: James N. Robinson, Esquire
(jrobinson@whitecase.com), White & Case, LLP, 200 South Biscayne Boulevard,
Suite 4900, Miami, Florida 33131-2352.
CIPPARONE & CIPPARONE, P.A.
1525 International Parkway, Ste.1071
Lake Mary, Florida 32746
Telephone: (321) 275-5914
Facsimile: (321) 275-5931
/s/ Ryan Cipparone
Ryan Cipparone
Florida Bar No.: 85786
RCipparone@CipparonePA.com
Paul C. Cipparone
Florida Bar No.: 84084
PCipparone@CipparonePA.com
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Filing # 46796211 E-Filed 09/22/2016 02:16:34 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA LUCENDA COMPONENTS INC., a New York corporation Plaintiff/Counter-Defendant, v. Case No.: 2016-CA-006498-0 Division: 32 EXXELIA DEARBORN, INC., COMPLEX BUSINESS a Florida corporation, f/k/a LITIGATION COURT DEARBORN ELECTRONICS, INC., a Florida corporation Defendant/Counter-Plaintiff. / PLAINTIFF’S/COUNTER-DEFENDANT’S ASWER AND AFFIRMATIVE DEFENSES TO DEFENDANT/COUNTER-PLAINTIFF’S AMENDED COUNTERCLAIMS Plaintiff/Counter-Defendant, LUCENDA COMPONENTS INC., a New York corporation (“Lucenda”), hereby sets forth its Answer and Affirmative Defenses to Defendant/Counter-Plaintiff’s (“Exxelia”) Amended Counterclaims, and states as follows: ANSWER TO AMENDED COUNTERCLAIMS For convenience and ease of reference, Lucenda uses certain section headings used in Exxelia’s Amended Counterclaims. The use of such headings shall not constitute or be interpreted as an admission by Lucenda of the truth of any matter stated in any heading. To the extent any allegations contained in a section heading may be deemed to require a response, they are denied 1. Lucenda admits that this purports to be an action for breach of contract, conversion and unjust enrichment, but denies the remaining allegations set forth in Paragraph 1. PARTIES, JURISDICTION, AND VENUE 2. Lucenda admits the allegations in Paragraph 2. 3. Lucenda admits the allegations in Paragraph 3. 4. Lucenda admits the allegations in Paragraph 4. 5. Lucenda admits the allegations in Paragraph 5. 6. Lucenda denies the allegations in Paragraph 6. GENERAL ALLEGATIONS 7. Lucenda admits the allegations in Paragraph 7 and further states that the Consulting Agreement speaks for itself. 8. Lucenda admits the allegations in Paragraph 8 and further states that the Consulting Agreement speaks for itself. 9. Lucenda admits the allegations in Paragraph 9 and further states that the Consulting Agreement speaks for itself. 10. Lucenda admits the allegations in Paragraph 10 and further states that the Consulting Agreement speaks for itself. 11. Lucenda admits the allegations in Paragraph 11 and further states that the Consulting Agreement speaks for itself. 12. Lucenda admits the allegations in Paragraph 12 and further states that the Consulting Agreement speaks for itself. 13. Lucenda admits the allegations in Paragraph 13 and further states that the Consulting Agreement speaks for itself. 14. Lucenda admits the allegations in Paragraph 14 and further states that the Consulting Agreement speaks for itself. 15. Lucenda admits the allegations in Paragraph 15. 16. Lucenda admits the allegations in Paragraph 16. 17. Lucenda admits the allegations in Paragraph 17. 18. Lucenda admits that Exxelia sent a payment in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) via wire transfer to Lucenda; otherwise denied. 19. Lucenda denies the allegations in Paragraph 19. 20. Lucenda admits that Exxelia, on August 12, 2016, sent a letter to Lucenda and the Executive reiterating its termination of the Consulting Agreement, which letter is attached to Exxelia’s Counterclaim as Exhibit “1,” and speaks for itself. 21. Lucenda lacks sufficient knowledge or information to form a belief as to the truth or falsity of the allegations in Paragraph 21, and therefore denies them. COUNTERCLAIM I – BREACH OF CONTRACT 22. Lucenda’s answers to Paragraphs 1 through 21 are incorporated herein by reference. 23. Lucenda admits the allegations in Paragraph 23. 24. Lucenda denies the allegations in Paragraph 24. 25. Lucenda denies the allegations in Paragraph 25. 26. Lucenda denies the allegations in Paragraph 26. 27. Lucenda denies the allegations in Paragraph 27. 28. Lucenda denies the allegations in Paragraph 28. 29. Lucenda denies the allegations in Paragraph 29. 30. Lucenda denies the allegations in Paragraph 30. 31. Lucenda denies the allegations in Paragraph 31. Lucenda denies the allegations set forth in Exxelia’s prayer for relief. COUNTERCLAIM II – CONVERSION Lucenda has filed a Motion to Dismiss Counterclaim II for Conversion. Lucenda’s Motion to Dismiss is currently pending before the Court. Therefore no response is required at this time. To the extent a response is required, Lucenda denies all allegations in Counterclaim II – Conversion. COUNTERCLAIM III – UNJUST ENRICHMENT Lucenda has filed a Motion to Dismiss Counterclaim III for Unjust Enrichment. Lucenda’s Motion to Dismiss is currently pending before the Court. Therefore no response is required at this time. To the extent a response is required, Lucenda denies all allegations in Counterclaim III – Unjust Enrichment. DEMAND FOR JURY TRIAL Lucenda admits that Exxelia demands a trial by jury on all claims, defenses, counterclaims and issues so triable. GENERAL DENIAL Lucenda denies each and every allegation and legal conclusion contained in Exxelia’s Amended Counterclaims not expressly admitted herein. AFFIRMATIVE DEFENSES By way of separate and additional defenses, Lucenda asserts the following. By virtue of asserting these defenses, Lucenda does not assume any burden of proof not otherwise legally assigned to it: FIRST AFFIRMATIVE DEFENSE Exxelia’s recovery, if any, must be reduced by the amount of losses and/or damages caused to Lucenda, as alleged in the Complaint, by Exxelia’s actions, including but not limited to, Exxelia’s actions alleged in the Complaint. SECOND AFFIRMATIVE DEFENSE Lucenda is entitled to a setoff/recoupment for any amounts owed by Exxelia, as alleged in the Complaint. THIRD AFFIRMATIVE DEFENSE Exxelia acted in bad faith and thus is barred from recovery, as alleged in the Complaint. FOURTH AFFIRMATIVE DEFENSE Exxelia failed to mitigate, minimize or avoid all or a portion of the damages which comprise its Counterclaims, as alleged in the Complaint. FIFTH AFFIRMATIVE DEFENSE Lucenda acted in good faith during the performance of its contractual duties, including any compensation increases to itself or others. SIXTH AFFIRMATIVE DEFENSE Exxelia either expressly or impliedly consented to Lucenda’s compensation increases. SEVENTH AFFIRMATIVE DEFENSE Exxelia was fully aware of Exxelia’s compensation increases, and ratified the same. EIGHTH AFFIRMATIVE DEFENSE Exxelia’s counterclaim for conversion is barred because it is a mere attempt to circumvent the contractual agreement of the parties, pursuant to the Consulting Agreement, by making a claim for loss in tort. Exxelia fails to allege a tort independent of the alleged contractual breach. NINTH AFFIRMATIVE DEFENSE Exxelia’s counterclaim for conversion fails to state a cause of action upon which relief can be granted because Exxelia fails to identify any specific funds that were allegedly converted by Lucenda. TENTH AFFIRMATIVE DEFENSE Exxelia’s counterclaim for unjust enrichment fails to state a cause of action for which relief can be granted. Exxelia and Lucenda are parties to an express contract, namely the Consulting Agreement. The actions Exxelia alleges in its counterclaim for unjust enrichment arise from and/or relate to the parties’ Consulting Agreement. As a result, Exxelia has an appropriate remedy at law, and the counterclaim for unjust enrichment fails as a matter of law. ELEVENTH AFFIRMATIVE DEFENSE Exxelia’s claims are barred by the doctrine of waiver in that Exxelia was aware of, and authorized, Lucenda’s alleged compensation increases, as well as the payment in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) via wire transfer to Lucenda. Therefore, Exxelia waived its right to object after the fact. TWELFTH AFFIRMATIVE DEFENSE Exxelia’s claims are barred by the doctrine of estoppel in that Exxelia was aware of the existence of, and authorized, Lucenda’s compensation increases as well as the payment in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) via wire transfer to Lucenda. ADDITIONAL AFFIRMATIVE DEFENSE Lucenda reserves the right to amend these Affirmative Defenses and add others as discovery proceeds. WHEREFORE, Plaintiff/Counter-Defendant, LUCENDA COMPONENTS INC., requests that the Court deny the relief sought by Defendants in their counterclaim and enter a judgment in its favor and against the Defendant/Counter- Plaintiff, and for such other relief, at law or in equity, which this Court deems appropriate. Respectfully submitted this 22nd day of September, 2016. /s/ Ryan Cipparone Ryan Cipparone Florida Bar No.: 85786 RCipparone@CipparonePA.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 22nd day of September, 2016, I electronically filed the foregoing with the clerk of the Court through the Florida Courts E-Filing Portal System which will send notice of electronic filing and will complete service of the foregoing as required by Florida Rules of Judicial Administration 2.516 to the following individuals: James N. Robinson, Esquire (jrobinson@whitecase.com), White & Case, LLP, 200 South Biscayne Boulevard, Suite 4900, Miami, Florida 33131-2352. CIPPARONE & CIPPARONE, P.A. 1525 International Parkway, Ste.1071 Lake Mary, Florida 32746 Telephone: (321) 275-5914 Facsimile: (321) 275-5931 /s/ Ryan Cipparone Ryan Cipparone Florida Bar No.: 85786 RCipparone@CipparonePA.com Paul C. Cipparone Florida Bar No.: 84084 PCipparone@CipparonePA.com