On December 13, 2006 a
Answer
was filed
involving a dispute between
and
Ebrands Restaurants Llc,
for BC - Breach of Agreement/Contract
in the District Court of Orange County.
Preview
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COUNTY, FLORIDA
KEVIN ENDERLE,
Plaintiff,
v. CASE NO. 2006-CA-1066£>
Div. 40 S}.?1-
E-BRANDS RESTAURANTS, LLC, a -^o
Florida limited liability company, ~j_ < :f-:'
.
Defendant
PLAINTIFF'S ANSWER AND AFFIRMATIVE
DEFENSES TO DEFENDANT'S COUNTERCLAIM
Plaintiff/Counter-Defendant, KEVIN ENDERLE ("ENDERLE"), by and through his
undersigned counsel, hereby files his Answer and Affirmative Defenses to the Counterclaim of
Defendant/Counter-Plaintiff, E-BRANDS RESTAURANTS, LLC ("E-BRANDS"), and states as
follows:
General Allegations
1. Admitted that E-BRANDS' Counterclaim purports to bring a claim for breach of
contract and a claim for conversion of personal property against ENDERLE and that damages are
alleged to exceed $15,000. ENDERLE denies each and every allegation of paragraph 1 of the
Counterclaim and demands strict proof thereof.
2. Admitted that jurisdiction is appropriate before this Court.
3. Admitted.
4. Admitted.
5. Admitted that venue is appropriate before this Court.
6. Admitted.
7. Admitted that E-BRANDS gave ENDERLE a Hewlett-Packard laptop computer.
ENDERLE denies the remaining allegations of paragraph 7 of the Counterclaim and demands strict
proof thereof.
8. Admitted that the parties executed the Executive Employment Agreement attached
to the Counterclaim as Exhibit "A". ENDERLE denies the remaining allegations of paragraph 8 of
the Counterclaim and demands strict proof thereof.
9. Admitted that paragraph 7 of the Executive Employment Agreement speaks for itself.
ENDERLE denies the remaining allegations of paragraph 9 of the Counterclaim and demands strict
proofthereof.
10. ENDERLE denies the allegations of paragraph 10 of the Counterclaim in their
entirety and demands strict proofthereof.
11. ENDERLE denies the allegations of paragraph 11 of the Counterclaim in their
entirety and demands strict proofthereof.
12. ENDERLE denies the allegations of paragraph 12 of the Counterclaim in their
entirety and demands strict proofthereof.
13. ENDERLE denies the allegations of paragraph 13 of the Counterclaim in their
entirety and demands strict proof thereof.
14. ENDERLE denies the allegations of paragraph 14 of the Counterclaim in their
entirety and demands strict proofthereof.
15. ENDERLE denies the allegations of paragraph 15 of the Counterclaim in their
entirety and demands strict proofthereof.
COUNT I - BREACH OF CONTRACT
16. ENDERLE incorporates and realleges his responses to paragraphs 1 through 15 of
the Counterclaim as stated above in response to paragraph 16.
17. Admitted that Count I purports to be an action for breach of contract against
ENDERLE. ENDERLE denies the remaining allegations of paragraph 17 of the Counterclaim and
demands strict proof thereof.
18. Admitted.
19. ENDERLE denies the allegations of paragraph 19 of the Counterclaim in their
entirety and demands strict proof thereof.
20. ENDERLE denies the allegations of paragraph 20 of the Counterclaim in their
entirety and demands strict proof thereof.
21. ENDERLE denies the allegations of paragraph 21 of the Counterclaim in then-
entirety and demands strict proof thereof.
22. ENDERLE denies the allegations of paragraph 22 of the Counterclaim in their
entirety and demands strict proof thereof.
ENDERLE denies that E-BRANDS is entitled to any of the relief requested in the
"Wherefore" clause following Paragraph 22 of the Counterclaim, or to any relief whatsoever.
COUNT II - CONVERSION
23. ENDERLE incorporates and realleges his responses to paragraphs 1 through 15 of
the Counterclaim as stated above in response to paragraph 23.
24. Admitted that Count I purports to be an action for breach of contract against
ENDERLE. ENDERLE denies the remaining allegations of paragraph 24 of the Counterclaim and
demands strict proof thereof.
25. Admitted.
26. ENDERLE denies the allegations of paragraph 26 of the Counterclaim in their
entirety and demands strict proof thereof.
27. ENDERLE denies the allegations of paragraph 27 of the Counterclaim in their
entirety and demands strict proof thereof.
28. ENDERLE denies the allegations of paragraph 28 of the Counterclaim in their
entirety and demands strict proof thereof.
ENDERLE denies that E-BRANDS is entitled to any of the relief requested in the
"Wherefore" clause following Paragraph 28 of the Counterclaim, or to any relief whatsoever.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
E-BRANDS fails to state any cause of action against ENDERLE.
SECOND AFFIRMATIVE DEFENSE
E-BRANDS has failed to mitigate its alleged damages in whole or part.
THIRD AFFIRMATIVE DEFENSE
To the extent that E-BRANDS seeks equitable relief, such is barred by the doctrine of
unclean hands.
FOURTH AFFIRMATIVE DEFENSE
E-BRANDS' breach of contract claim is barred due to its breach of the implied duty of good
faith and fair dealing in carrying out its obligations under its employment arrangement with
ENDERLE.
FIFTH AFFIRMATIVE DEFENSE
Any recovery awarded to E-BRANDS pursuant to its Counterclaim should be offset by
amounts owed to ENDERLE, including amounts owed for unpaid bonuses and by the damages owed
to ENDERLE arising from his unlawful termination by E-Brands.
SIXTH AFFIRMATIVE DEFENSE
Some or all of E-BRANDS' claims are barred due to failure satisfy conditions precedent.
Specifically, as to the claim for conversion, such claim is barred due to E-BRANDS' failure to make
written demand for the computer.
SEVENTH AFFIRMATIVE DEFENSE
E-BRANDS cannot state a cause of action for conversation of the computer at issue because
the computer was returned to E-BRANDS by ENDERLE on the same date that his unlawful
termination occurred.
EIGHTH AFFIRMATIVE DEFENSE
ENDERLE reserves the right to plead any and ally additional affirmative defenses that may
become known during the course of discovery or otherwise.
WHEREFORE, having fully answered and responded to the allegations of E-BRANDS'
Coutnerclaim, ENDERLE respectfully requests that:
1. E-BRANDS' claims be dismissed with prejudice their entirety;
2. Each and every prayer for relief made in the Counterclaim be denied;
3. Judgment be answered in favor of ENDERLE on E-BRANDS' Counterclaim; and
4. All costs and reasonable attorney's fees be awarded to ENDERLE and against E-
BRANDS pursuant to Section 57.105, Florida Statutes, and that such other relief be
granted ENDERLE as the Court deems just and appropriate.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and accurate copy of the foregoing has been furnished via
th
facsimile and U.S. Mail this 9 day of February 2007 to Mary Ruth Houston, Esquire, Shutts &
Bown, LLP, Attorneys for Defendant, 300 S. Orange Avenue, Suite 1000, Orlando, Florida 32801.
[SS, ESQUIRE
750565
L BLITCH, ESQUIRE
Florida Bar No. 0040592
BROWN, GARGANESE, WEISS & D'AGRESTA, P.A.
225 East Robinson Street, Suite 660
Orlando, Florida 32801
Telephone: (407) 425-9566
Facsimile: (407) 425-9596
Attorney for Plaintiff
Document Filed Date
February 12, 2007
Case Filing Date
December 13, 2006
Category
BC - Breach of Agreement/Contract
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IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA KEVIN ENDERLE, Plaintiff, v. CASE NO. 2006-CA-1066£> Div. 40 S}.?1- E-BRANDS RESTAURANTS, LLC, a -^o Florida limited liability company, ~j_ < :f-:' . Defendant PLAINTIFF'S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT'S COUNTERCLAIM Plaintiff/Counter-Defendant, KEVIN ENDERLE ("ENDERLE"), by and through his undersigned counsel, hereby files his Answer and Affirmative Defenses to the Counterclaim of Defendant/Counter-Plaintiff, E-BRANDS RESTAURANTS, LLC ("E-BRANDS"), and states as follows: General Allegations 1. Admitted that E-BRANDS' Counterclaim purports to bring a claim for breach of contract and a claim for conversion of personal property against ENDERLE and that damages are alleged to exceed $15,000. ENDERLE denies each and every allegation of paragraph 1 of the Counterclaim and demands strict proof thereof. 2. Admitted that jurisdiction is appropriate before this Court. 3. Admitted. 4. Admitted. 5. Admitted that venue is appropriate before this Court. 6. Admitted. 7. Admitted that E-BRANDS gave ENDERLE a Hewlett-Packard laptop computer. ENDERLE denies the remaining allegations of paragraph 7 of the Counterclaim and demands strict proof thereof. 8. Admitted that the parties executed the Executive Employment Agreement attached to the Counterclaim as Exhibit "A". ENDERLE denies the remaining allegations of paragraph 8 of the Counterclaim and demands strict proof thereof. 9. Admitted that paragraph 7 of the Executive Employment Agreement speaks for itself. ENDERLE denies the remaining allegations of paragraph 9 of the Counterclaim and demands strict proofthereof. 10. ENDERLE denies the allegations of paragraph 10 of the Counterclaim in their entirety and demands strict proofthereof. 11. ENDERLE denies the allegations of paragraph 11 of the Counterclaim in their entirety and demands strict proofthereof. 12. ENDERLE denies the allegations of paragraph 12 of the Counterclaim in their entirety and demands strict proofthereof. 13. ENDERLE denies the allegations of paragraph 13 of the Counterclaim in their entirety and demands strict proof thereof. 14. ENDERLE denies the allegations of paragraph 14 of the Counterclaim in their entirety and demands strict proofthereof. 15. ENDERLE denies the allegations of paragraph 15 of the Counterclaim in their entirety and demands strict proofthereof. COUNT I - BREACH OF CONTRACT 16. ENDERLE incorporates and realleges his responses to paragraphs 1 through 15 of the Counterclaim as stated above in response to paragraph 16. 17. Admitted that Count I purports to be an action for breach of contract against ENDERLE. ENDERLE denies the remaining allegations of paragraph 17 of the Counterclaim and demands strict proof thereof. 18. Admitted. 19. ENDERLE denies the allegations of paragraph 19 of the Counterclaim in their entirety and demands strict proof thereof. 20. ENDERLE denies the allegations of paragraph 20 of the Counterclaim in their entirety and demands strict proof thereof. 21. ENDERLE denies the allegations of paragraph 21 of the Counterclaim in then- entirety and demands strict proof thereof. 22. ENDERLE denies the allegations of paragraph 22 of the Counterclaim in their entirety and demands strict proof thereof. ENDERLE denies that E-BRANDS is entitled to any of the relief requested in the "Wherefore" clause following Paragraph 22 of the Counterclaim, or to any relief whatsoever. COUNT II - CONVERSION 23. ENDERLE incorporates and realleges his responses to paragraphs 1 through 15 of the Counterclaim as stated above in response to paragraph 23. 24. Admitted that Count I purports to be an action for breach of contract against ENDERLE. ENDERLE denies the remaining allegations of paragraph 24 of the Counterclaim and demands strict proof thereof. 25. Admitted. 26. ENDERLE denies the allegations of paragraph 26 of the Counterclaim in their entirety and demands strict proof thereof. 27. ENDERLE denies the allegations of paragraph 27 of the Counterclaim in their entirety and demands strict proof thereof. 28. ENDERLE denies the allegations of paragraph 28 of the Counterclaim in their entirety and demands strict proof thereof. ENDERLE denies that E-BRANDS is entitled to any of the relief requested in the "Wherefore" clause following Paragraph 28 of the Counterclaim, or to any relief whatsoever. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE E-BRANDS fails to state any cause of action against ENDERLE. SECOND AFFIRMATIVE DEFENSE E-BRANDS has failed to mitigate its alleged damages in whole or part. THIRD AFFIRMATIVE DEFENSE To the extent that E-BRANDS seeks equitable relief, such is barred by the doctrine of unclean hands. FOURTH AFFIRMATIVE DEFENSE E-BRANDS' breach of contract claim is barred due to its breach of the implied duty of good faith and fair dealing in carrying out its obligations under its employment arrangement with ENDERLE. FIFTH AFFIRMATIVE DEFENSE Any recovery awarded to E-BRANDS pursuant to its Counterclaim should be offset by amounts owed to ENDERLE, including amounts owed for unpaid bonuses and by the damages owed to ENDERLE arising from his unlawful termination by E-Brands. SIXTH AFFIRMATIVE DEFENSE Some or all of E-BRANDS' claims are barred due to failure satisfy conditions precedent. Specifically, as to the claim for conversion, such claim is barred due to E-BRANDS' failure to make written demand for the computer. SEVENTH AFFIRMATIVE DEFENSE E-BRANDS cannot state a cause of action for conversation of the computer at issue because the computer was returned to E-BRANDS by ENDERLE on the same date that his unlawful termination occurred. EIGHTH AFFIRMATIVE DEFENSE ENDERLE reserves the right to plead any and ally additional affirmative defenses that may become known during the course of discovery or otherwise. WHEREFORE, having fully answered and responded to the allegations of E-BRANDS' Coutnerclaim, ENDERLE respectfully requests that: 1. E-BRANDS' claims be dismissed with prejudice their entirety; 2. Each and every prayer for relief made in the Counterclaim be denied; 3. Judgment be answered in favor of ENDERLE on E-BRANDS' Counterclaim; and 4. All costs and reasonable attorney's fees be awarded to ENDERLE and against E- BRANDS pursuant to Section 57.105, Florida Statutes, and that such other relief be granted ENDERLE as the Court deems just and appropriate. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and accurate copy of the foregoing has been furnished via th facsimile and U.S. Mail this 9 day of February 2007 to Mary Ruth Houston, Esquire, Shutts & Bown, LLP, Attorneys for Defendant, 300 S. Orange Avenue, Suite 1000, Orlando, Florida 32801. [SS, ESQUIRE 750565 L BLITCH, ESQUIRE Florida Bar No. 0040592 BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. 225 East Robinson Street, Suite 660 Orlando, Florida 32801 Telephone: (407) 425-9566 Facsimile: (407) 425-9596 Attorney for Plaintiff