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Filing # 36945775 E-Filed 01/25/2016 01:36:15 PM
IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO.: CACE-15-022943 03
O’NEIL CLARKE,
Plaintiff,
vs.
VALUE STORE IT SUNRISE, LLC,
Defendant,
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
COMES NOW, the Defendant, VALUE STORE IT SUNRISE, LLC (“Defendant”), by and
through undersigned counsel and hereby files this, its Answer and Affirmative Defenses to Plaintiff's
Complaint (“Complaint”) in the above-styled action on the following grounds:
1. Admitted as to claimed jurisdiction only. Defendant is without knowledge or
information sufficient to form a belief as to the amount of any claimed damages and whether such
damages satisfy the jurisdictional threshold, and therefore denies the allegations and demands strict
proof thereof
2. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 2 and therefore denies the allegations and demands strict proof
thereof.
3. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 3 and therefore denies the allegations and demands strict proof
thereof.
4. Admitted.
5. Admitted as to venue only.
COUNT I— BREACH OF CONTRACT.
6. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit
“A”, subject to verification, and states that such document speaks for itself.
Answer and Affirmative Defenses CACE-15-022943 Page 1
*** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 1/25/2016 1:36:15 PM.****7. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit
“A”, subject to verification, and states that such document speaks for itself with regard to any
obligations of the parties. Defendant denies the remainder of any allegations in Paragraph 7 and
demands strict proof thereof.
8. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit
“A”, subject to verification, and states that such document speaks for itself. Defendant denies
the remainder of any allegations in Paragraph 8 and demands strict proof thereof.
9. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit
“A”, subject to verification, and states that such document speaks for itself. Defendant denies the
remainder of any allegations in Paragraph 9 and demands strict proof thereof.
10. Denied.
ll. Denied
12. Denied.
13. Denied.
14. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 14 and therefore denies the allegations and demands strict proof
thereof.
15. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit
“A”, subject to verification, and states that such document speaks for itself. Defendant denies the
remainder of any allegations in Paragraph 15 and demands strict proof thereof.
COUNT II - DECEPTIVE AND UNFAIR TRADE PRACTICE
16. No response is required.
17. Denied.
18. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 18 and therefore denies the allegations and demands strict proof
thereof.
19. Denied.
20. Denied.
21. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 21 and therefore denies the allegations and demands strict proof
thereof.
Answer and Affirmative Defenses CACE-15-022943 Page 222. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 22 and therefore denies the allegations and demands strict proof
thereof.
23. Denied.
24. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 24 and therefore denies the allegations and demands strict proof
thereof.
25. Denied.
COUNT III - UNFAIR INSURANCE TRADE PRACTICES
26. No response is required.
27. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 27 and therefore denies the allegations and demands strict proof
thereof.
28. Denied.
29. Defendant is without knowledge or information sufficient to form a belief as to the
allegations contained in Paragraph 29 and therefore denies the allegations and demands strict proof
thereof.
30. Denied.
FIRST AFFIRMATIVE DEFENSE
Plaintiff's Complaint cannot stand as any claim for damages in excess of $5,000.00 must
fail, since all such claims were waived pursuant to the terms of the contract which is the basis of
this action (the “Contract”, as previously attached to Plaintiff's Complaint). Such limitation
renders the Complaint deficient for jurisdictional purposes. Specifically, the “Value Protection
Plan” portion of the Contract, which was executed and acknowledged by Plaintiff, clearly states
that Defendant’s liability thereunder is limited to $5,000.00, which is below the jurisdictional limit
for this Court. As such, the present matter does not belong in this forum and should be dismissed.
Answer and Affirmative Defenses CACE-15-022943 Page 3SECOND AFFIRMATIVE DEFENSE
Plaintiff's claims must fail, as all such claims were waived pursuant to the terms of the
Contract. Specifically, the Contract states “LESSOR SHALL NOT BE LIABLE TO TENANT
OR TENANT’S INVITEES, FAMILY, EMPLOYEES, AGENTS, OR SERVANTS FOR ANY
PERSONAL INJURIES OR PROPERTY DAMAGE, OR LOSS FROM THEFT, PESTS,
VANDALISM, FIRE, SMOKE, WATER, MOLD, MILDEW, MOISTURE, HURRICANE,
RAIN, TORNADO, EXPLOSION, ACTS OF GOD OR ANY OTHER CAUSE WHATSOEVER,
TO THE EXTENT ALLOWED BY LAW.” As Plaintiff claims his losses were caused by theft,
Plaintiff has explicitly waived such claims, and therefore such claims must fail.
THIRD AFFIRMATIVE DEFENSE
Counts II and III of the Complaint must fail, as Plaintiff has waived any claims with regard
to insurance coverage or activity. Specifically, the “Value Protection Plan” portion of the Contract,
which was executed and acknowledged by Plaintiff, clearly states that the document is not a
contract for insurance, nor does the document offer any insurance coverage. As such, any claims
under Florida Statutes Chapter 626 must fail as the provisions of such statute do not apply to the
facts at hand.
FOURTH AFFIRMATIVE DEFENSE
Plaintiff's claim for damages must fail as all such claims were waived pursuant to the terms
of that certain Release Agreement executed by Plaintiff, a copy of which is attached hereto as
Exhibit “A”,
FIFTH AFFIRMATIVE DEFENSE
Plaintiff's demand for jury trial must be denied, as Plaintiff explicitly waived the right to
make such demand in the Contract.
SIXTH AFFIRMATIVE DEFENSE
Plaintiff's Complaint contains insufficient information to permit Defendant to raise all of
its potentially appropriate defenses and, therefore, Defendant reserves its right to amend and/or
supplement this Answer with additional affirmative defenses.
Answer and Affirmative Defenses CACE-15-022943 Page 4CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a true and correct copy of the foregoing was sent via e-mail on
the 25" day of January, 2016, to counsel for Plaintiff, Michael Garcia, Esq.,
michael@garciapa.com
LAW OFFICES OF SCOTT A. FRANK, P.A.
5301 N. Federal Highway, Suite 170
Boca Raton, Florida 33487
Ph: = (561) 826-5400
Fax: (561) 423-5721
Attorneys for Defendani
. Frank, Esq,
Florida Bar No. 617091
Answer and Affirmative Defenses CACE-15-022943 Page 5RELEASE AGREEMENT
This agreement, entered into this day of , between _ O'neil Clarke
(‘Tenant’) and___Value Store It__("Owner’) is as follows:
1. Tenant has made a claim of loss and/or damage to its stored property that occurred
October 21, 2014 Tenant states that the loss/damage includes, but is not
limited to the follawing:
Various Personal & Household Effects
2. In consideration for the payment of $ $000.00 to Tenant, Tenant, for itself, its
heirs, executors, administrators and assigns, forever releases and discharges Owner
(defined to include its officers, agents, employees, and representatives) from any and all
claims, demands, actions and causes of action arising out of Tenant's claim as listed
above.
3. Customer acknowledges that in exchange for the payment above, Owner has salistied its
obligations contained in the Protection Plan Addendum regarding claims for loss or
damage to its stored property.
Tenant's signature
ax? a
Witness.
“THIS AGREEMENT SHOULD ONLY BE COMPLETED WHEN FINAL SETTLEMENT HAS
BEEN REACHED. DO NOT SUBMIT WITH INITIAL CLAIM DOCUMENTS**
Preview
Filing # 36945775 E-Filed 01/25/2016 01:36:15 PM IN THE CIRCUIT COURT OF THE 17" JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE-15-022943 03 O’NEIL CLARKE, Plaintiff, vs. VALUE STORE IT SUNRISE, LLC, Defendant, DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, the Defendant, VALUE STORE IT SUNRISE, LLC (“Defendant”), by and through undersigned counsel and hereby files this, its Answer and Affirmative Defenses to Plaintiff's Complaint (“Complaint”) in the above-styled action on the following grounds: 1. Admitted as to claimed jurisdiction only. Defendant is without knowledge or information sufficient to form a belief as to the amount of any claimed damages and whether such damages satisfy the jurisdictional threshold, and therefore denies the allegations and demands strict proof thereof 2. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 2 and therefore denies the allegations and demands strict proof thereof. 3. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 3 and therefore denies the allegations and demands strict proof thereof. 4. Admitted. 5. Admitted as to venue only. COUNT I— BREACH OF CONTRACT. 6. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit “A”, subject to verification, and states that such document speaks for itself. Answer and Affirmative Defenses CACE-15-022943 Page 1 *** FILED: BROWARD COUNTY, FL HOWARD FORMAN, CLERK 1/25/2016 1:36:15 PM.****7. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit “A”, subject to verification, and states that such document speaks for itself with regard to any obligations of the parties. Defendant denies the remainder of any allegations in Paragraph 7 and demands strict proof thereof. 8. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit “A”, subject to verification, and states that such document speaks for itself. Defendant denies the remainder of any allegations in Paragraph 8 and demands strict proof thereof. 9. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit “A”, subject to verification, and states that such document speaks for itself. Defendant denies the remainder of any allegations in Paragraph 9 and demands strict proof thereof. 10. Denied. ll. Denied 12. Denied. 13. Denied. 14. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 14 and therefore denies the allegations and demands strict proof thereof. 15. Defendant admits that a copy of the Lease is attached to the Complaint as Exhibit “A”, subject to verification, and states that such document speaks for itself. Defendant denies the remainder of any allegations in Paragraph 15 and demands strict proof thereof. COUNT II - DECEPTIVE AND UNFAIR TRADE PRACTICE 16. No response is required. 17. Denied. 18. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 18 and therefore denies the allegations and demands strict proof thereof. 19. Denied. 20. Denied. 21. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 21 and therefore denies the allegations and demands strict proof thereof. Answer and Affirmative Defenses CACE-15-022943 Page 222. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 22 and therefore denies the allegations and demands strict proof thereof. 23. Denied. 24. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 24 and therefore denies the allegations and demands strict proof thereof. 25. Denied. COUNT III - UNFAIR INSURANCE TRADE PRACTICES 26. No response is required. 27. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 27 and therefore denies the allegations and demands strict proof thereof. 28. Denied. 29. Defendant is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 29 and therefore denies the allegations and demands strict proof thereof. 30. Denied. FIRST AFFIRMATIVE DEFENSE Plaintiff's Complaint cannot stand as any claim for damages in excess of $5,000.00 must fail, since all such claims were waived pursuant to the terms of the contract which is the basis of this action (the “Contract”, as previously attached to Plaintiff's Complaint). Such limitation renders the Complaint deficient for jurisdictional purposes. Specifically, the “Value Protection Plan” portion of the Contract, which was executed and acknowledged by Plaintiff, clearly states that Defendant’s liability thereunder is limited to $5,000.00, which is below the jurisdictional limit for this Court. As such, the present matter does not belong in this forum and should be dismissed. Answer and Affirmative Defenses CACE-15-022943 Page 3SECOND AFFIRMATIVE DEFENSE Plaintiff's claims must fail, as all such claims were waived pursuant to the terms of the Contract. Specifically, the Contract states “LESSOR SHALL NOT BE LIABLE TO TENANT OR TENANT’S INVITEES, FAMILY, EMPLOYEES, AGENTS, OR SERVANTS FOR ANY PERSONAL INJURIES OR PROPERTY DAMAGE, OR LOSS FROM THEFT, PESTS, VANDALISM, FIRE, SMOKE, WATER, MOLD, MILDEW, MOISTURE, HURRICANE, RAIN, TORNADO, EXPLOSION, ACTS OF GOD OR ANY OTHER CAUSE WHATSOEVER, TO THE EXTENT ALLOWED BY LAW.” As Plaintiff claims his losses were caused by theft, Plaintiff has explicitly waived such claims, and therefore such claims must fail. THIRD AFFIRMATIVE DEFENSE Counts II and III of the Complaint must fail, as Plaintiff has waived any claims with regard to insurance coverage or activity. Specifically, the “Value Protection Plan” portion of the Contract, which was executed and acknowledged by Plaintiff, clearly states that the document is not a contract for insurance, nor does the document offer any insurance coverage. As such, any claims under Florida Statutes Chapter 626 must fail as the provisions of such statute do not apply to the facts at hand. FOURTH AFFIRMATIVE DEFENSE Plaintiff's claim for damages must fail as all such claims were waived pursuant to the terms of that certain Release Agreement executed by Plaintiff, a copy of which is attached hereto as Exhibit “A”, FIFTH AFFIRMATIVE DEFENSE Plaintiff's demand for jury trial must be denied, as Plaintiff explicitly waived the right to make such demand in the Contract. SIXTH AFFIRMATIVE DEFENSE Plaintiff's Complaint contains insufficient information to permit Defendant to raise all of its potentially appropriate defenses and, therefore, Defendant reserves its right to amend and/or supplement this Answer with additional affirmative defenses. Answer and Affirmative Defenses CACE-15-022943 Page 4CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing was sent via e-mail on the 25" day of January, 2016, to counsel for Plaintiff, Michael Garcia, Esq., michael@garciapa.com LAW OFFICES OF SCOTT A. FRANK, P.A. 5301 N. Federal Highway, Suite 170 Boca Raton, Florida 33487 Ph: = (561) 826-5400 Fax: (561) 423-5721 Attorneys for Defendani . Frank, Esq, Florida Bar No. 617091 Answer and Affirmative Defenses CACE-15-022943 Page 5RELEASE AGREEMENT This agreement, entered into this day of , between _ O'neil Clarke (‘Tenant’) and___Value Store It__("Owner’) is as follows: 1. Tenant has made a claim of loss and/or damage to its stored property that occurred October 21, 2014 Tenant states that the loss/damage includes, but is not limited to the follawing: Various Personal & Household Effects 2. In consideration for the payment of $ $000.00 to Tenant, Tenant, for itself, its heirs, executors, administrators and assigns, forever releases and discharges Owner (defined to include its officers, agents, employees, and representatives) from any and all claims, demands, actions and causes of action arising out of Tenant's claim as listed above. 3. Customer acknowledges that in exchange for the payment above, Owner has salistied its obligations contained in the Protection Plan Addendum regarding claims for loss or damage to its stored property. Tenant's signature ax? a Witness. “THIS AGREEMENT SHOULD ONLY BE COMPLETED WHEN FINAL SETTLEMENT HAS BEEN REACHED. DO NOT SUBMIT WITH INITIAL CLAIM DOCUMENTS**