On July 03, 2007 a
Motion,Ex Parte
was filed
involving a dispute between
Gardner, Richard,
and
Adams, Paul G,
Patricia A Donahue Individually And As Co Trustees,
for OTHER - CIRCUIT
in the District Court of Sarasota County.
Preview
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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
RICHARD GARDNER
Plaintiff,
V.
CASE NO. 2007 CA 07710 NC
PAUL G. ADAMS and PATRICIA A.
3S
2 2 |
DONAHUE, Individually and as Co-Trustees BoA S O
u/a/d January 23, 2003 Oa = a
Defendants. Bom 3 ~
GOP a
| 23 ES
ANSWER TO COMPLAINT, MOTIONS TO DISMISS SSe cr
AND AFFIRMATIVE DEFENSES 3" wo
Defendants PAUL G. ADAMS and PATRICIA A. DONAHUE, Individually and
as Co-Trustees u/a/d January 23, 2003, through their undersigned attorney, files their Answer
to Complaint , Motions to Dismiss and Affirmative Defenses filed herein and states:
GENERAL ALLEGATIONS
1. Admitted for the purposes of jurisdiction only.
2. Admitted.
3. Admitted
4. Admitted.
5. It is admitted that Exhibit “A” is the Contract.
6. Admitted.
7. It is admitted that Exhibit “B” is the Disclosure Statement.
8. Admitted.
9.
Admitted that Plaintiff closed on his purchase of the property, Defendants are
without knowledge as to whether Plaintiff took up residence in September, 2005.
‘gitwy
21.
22.
23.
24.
25.
26.
27.
without knowledge as to whether Plaintiff took up residence in September, 2005.
Defendants are without knowledge as to the allegations set forth in paragraph 10.
Defendants are without knowledge as to the allegations set forth in paragraph 11.
Defendants are without knowledge as to the allegations set forth in paragraph 12.
It is admitted that the property has been treated for termites, otherwise, the
allegation is denied.
It is admitted that the property has been treated for termites, otherwise, the
allegation is denied.
It is admitted that the property has been treated for termites, otherwise, the
allegation is denied.
Denied
Admitted.
Denied.
Admitted.
Denied.
COUNT I
Admitted for the purposes of jurisdiction only.
Defendants reallege and incorporate by reference their Answers to Paragraphs 1
through 20 as if fully set forth herein.
It is denied that the Defendants made a false statement.
Denied.
Denied.
Denied.
Denied.28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
41.
42.
43.
44.
COUNT II
Admitted for the purposes of jurisdiction only.
Defendants reallege and incorporate by reference their Answers to Paragraphs 1
through 20 as if fully set forth herein.
It is denied that Defendants’ statements were false.
It is admitted that property had prior treatments, otherwise, the allegations are
denied.
Denied.
It is denied that misleading statements were made.
Defendants are without knowledge as to the allegations set forth in paragraph 34.
Defendants are without knowledge as to the allegations set forth in paragraph 35.
COUNT Ill
Admitted for the purposes of jurisdiction only.
Defendants reallege and incorporate by reference their Answers to Paragraphs 1
through 20 as if fully set forth herein.
It is admitted that there were previous termite treatments, otherwise, the allegations
are denied.
It is denied that Defendants made an improper disclosure.
It is denied that Defendants made an improper disclosure.
It is denied that Defendants made an improper disclosure.
COUNT IV
Admitted for the purposes of jurisdiction only.
Defendants reallege and incorporate by reference their Answers to Paragraphs 1
through 20 as if fully set forth herein.
Denied.45.
46.
47.
48.
49.
50.
51.
It is admitted that there were previous termite treatments which were disclosed to
Plaintiff, otherwise, the allegations are denied.
Denied
Defendants are without knowledge as to the allegations set forth in paragraph 47.
Admitted.
It is admitted that Exhibit “C” is Plaintiff's Notice of Intent.
Admitted.
Denied.
MOTION TO DISMISS
Attached to the Complaint is a disclosure which is referenced in the Complaint. That
disclosure shows that Defendants did disclose prior treatment for termites. The Pleadings reveal
this was disclosed and therefore negate any claim for termites. Accordingly, the claim as to
termites fail to show a cause of action and should be dismissed with prejudice.
AFFIRMATIVE DEFENSES
First Affirmative Defense- Comparative Negligence Plaintiff was on notice regarding
the alleged issues of non-disclosure and failed to further investigate once put on inquiry notice.
Accordingly, any damage suffered is a result of Plaintiff's own negligence.
Second Affirmative Defense-Negligence of Third Parties Plaintiff hired other parties to
advise and perform inspections regarding the purchase of the real estate. Any damages suffered
by Plaintiff was caused in whole or in part by the third parties.
Third Affirmative Defense- Waiver/Estoppel Plaintiff closed on the real estateknowing of prior termite treatment and has waived or is estopped from asserting the lack of
disclosure.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
served U.S. Mail to Christopher C. Morrison, Esquire, Dooley and Drake, P.A., 1432 First Street,
Sarasota, Florida, 34236, this 25th day of July, 2007.
Robert E. Turffs, Esq.
Florida Bar No. 0363391
1444 First Street, Suite B
Sarasota, Florida 34236
(941) 953-9009 (Telephone)
(941) 953-5736 (Facsimile)
Attorney for Defendants
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yw IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA RICHARD GARDNER Plaintiff, V. CASE NO. 2007 CA 07710 NC PAUL G. ADAMS and PATRICIA A. 3S 2 2 | DONAHUE, Individually and as Co-Trustees BoA S O u/a/d January 23, 2003 Oa = a Defendants. Bom 3 ~ GOP a | 23 ES ANSWER TO COMPLAINT, MOTIONS TO DISMISS SSe cr AND AFFIRMATIVE DEFENSES 3" wo Defendants PAUL G. ADAMS and PATRICIA A. DONAHUE, Individually and as Co-Trustees u/a/d January 23, 2003, through their undersigned attorney, files their Answer to Complaint , Motions to Dismiss and Affirmative Defenses filed herein and states: GENERAL ALLEGATIONS 1. Admitted for the purposes of jurisdiction only. 2. Admitted. 3. Admitted 4. Admitted. 5. It is admitted that Exhibit “A” is the Contract. 6. Admitted. 7. It is admitted that Exhibit “B” is the Disclosure Statement. 8. Admitted. 9. Admitted that Plaintiff closed on his purchase of the property, Defendants are without knowledge as to whether Plaintiff took up residence in September, 2005. ‘gitwy 21. 22. 23. 24. 25. 26. 27. without knowledge as to whether Plaintiff took up residence in September, 2005. Defendants are without knowledge as to the allegations set forth in paragraph 10. Defendants are without knowledge as to the allegations set forth in paragraph 11. Defendants are without knowledge as to the allegations set forth in paragraph 12. It is admitted that the property has been treated for termites, otherwise, the allegation is denied. It is admitted that the property has been treated for termites, otherwise, the allegation is denied. It is admitted that the property has been treated for termites, otherwise, the allegation is denied. Denied Admitted. Denied. Admitted. Denied. COUNT I Admitted for the purposes of jurisdiction only. Defendants reallege and incorporate by reference their Answers to Paragraphs 1 through 20 as if fully set forth herein. It is denied that the Defendants made a false statement. Denied. Denied. Denied. Denied.28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. COUNT II Admitted for the purposes of jurisdiction only. Defendants reallege and incorporate by reference their Answers to Paragraphs 1 through 20 as if fully set forth herein. It is denied that Defendants’ statements were false. It is admitted that property had prior treatments, otherwise, the allegations are denied. Denied. It is denied that misleading statements were made. Defendants are without knowledge as to the allegations set forth in paragraph 34. Defendants are without knowledge as to the allegations set forth in paragraph 35. COUNT Ill Admitted for the purposes of jurisdiction only. Defendants reallege and incorporate by reference their Answers to Paragraphs 1 through 20 as if fully set forth herein. It is admitted that there were previous termite treatments, otherwise, the allegations are denied. It is denied that Defendants made an improper disclosure. It is denied that Defendants made an improper disclosure. It is denied that Defendants made an improper disclosure. COUNT IV Admitted for the purposes of jurisdiction only. Defendants reallege and incorporate by reference their Answers to Paragraphs 1 through 20 as if fully set forth herein. Denied.45. 46. 47. 48. 49. 50. 51. It is admitted that there were previous termite treatments which were disclosed to Plaintiff, otherwise, the allegations are denied. Denied Defendants are without knowledge as to the allegations set forth in paragraph 47. Admitted. It is admitted that Exhibit “C” is Plaintiff's Notice of Intent. Admitted. Denied. MOTION TO DISMISS Attached to the Complaint is a disclosure which is referenced in the Complaint. That disclosure shows that Defendants did disclose prior treatment for termites. The Pleadings reveal this was disclosed and therefore negate any claim for termites. Accordingly, the claim as to termites fail to show a cause of action and should be dismissed with prejudice. AFFIRMATIVE DEFENSES First Affirmative Defense- Comparative Negligence Plaintiff was on notice regarding the alleged issues of non-disclosure and failed to further investigate once put on inquiry notice. Accordingly, any damage suffered is a result of Plaintiff's own negligence. Second Affirmative Defense-Negligence of Third Parties Plaintiff hired other parties to advise and perform inspections regarding the purchase of the real estate. Any damages suffered by Plaintiff was caused in whole or in part by the third parties. Third Affirmative Defense- Waiver/Estoppel Plaintiff closed on the real estateknowing of prior termite treatment and has waived or is estopped from asserting the lack of disclosure. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served U.S. Mail to Christopher C. Morrison, Esquire, Dooley and Drake, P.A., 1432 First Street, Sarasota, Florida, 34236, this 25th day of July, 2007. Robert E. Turffs, Esq. Florida Bar No. 0363391 1444 First Street, Suite B Sarasota, Florida 34236 (941) 953-9009 (Telephone) (941) 953-5736 (Facsimile) Attorney for Defendants