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Filing # 39492550 E-Filed 03/28/2016 07:35:23 AM
IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT
IN AND FOR HILLSBOROUGH CQUNTY, FLORIDA
CIVIL DIVISION
Z&R PARTNERS, LLC, a Florida Limited
Liability Company,
Plaintiff
CASE NO.: 15-CA-010865
VS. DIVISIONS D
CLAWS AND MORE, INC., a Florida
Corporation AND JANICE TRUEWELL.,
Defendant(s)
/
ANSWER AND AFFIRMATIVE DEFENSES
Plaintiff/Counter-Defendant, Z&R PARTNERS, LLC ("ZR"), by the undersigned counsel, hereby
answers and defends the Counterclaim filed by Defendants/Counter-Plaintiffs, CLAWS AND MORE,
INC. ("ClaWs") and JANICE TRUEWELL, and as grounds therefore states as follows:
ANSWER TO COUNTERCLAIM
Defendants/Counter-Plaintiffs mis-numbered their Paragraphs throughout their response and
Counterclaim. In that regard, Plaintiff/Counter-Defendant responds accordingly to the Paragraphs as they
are numbered.
COUNT I BREACH OF LEASE
1. Plaintiff/Counter-Defendant admits, for jurisdictional purposes only, that this matter
purports to be an action against it for damages in excess of Fifteen Thousand Dollars
($l5,000.00), but expressly denies that it is liable to Defendant/Counter-Plaintiffs for any
amount.
2. Denied.
3. Paragraph three (3) is not an allegation, but rather is a statement that requires neither an
admission nor a denial. Out of an abundance of caution, denied.
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4. Denied.
4. Denied.
5. Denied as phrased.
6. Paragraph Six (6) is not an allegation, but rather is a statement that requires neither an
admission nor a denial. Out of an abundance of caution, denied.
WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and
judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney
fees and costs associated with this litigation, and (c) providing such other and further relief as is just and
proper.
COUNT II INTENTIONAL FRAUDULENT MISREPRESENTATION AND
IDUCEMENT [sic]
7. Plaintiff/Counter-Defendant admits, for jurisdictional purposes only, that this matter
purports to be an action against it for damages in excess of Fifteen Thousand Dollars
($l5,000.00), but expressly denies that it is liable to Defendant/Counter-Plaintiffs for
any amount.
8. Denied.
9. Paragraph nine (9) is not an allegation, but rather is a statement that requires neither an
admission nor a denial. Out of an abundance of caution, denied.
10. Denied.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and
judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney
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fees and costs associated with this litigation, and (c) providing such other and further relief as is just and
proper.
COUNT III NEGLIGENT FRAUDULENT MISREPRESENTATION AND
INDUCEMENT
15. Plaintiff/Counter-Defendant admits, for jurisdictional purposes only, that this matter
purports to be an action against it for damages in excess of Fifteen Thousand Dollars
($l5,000.00), but expressly denies that it is liable to Defendant/Counter-Plaintiffs for
any amount.
16. Denied.
17. Paragraph seventeen (17) is not an allegation, but rather is a statement that requires
neither an admission nor a denial. Out of an abundance of caution, denied.
18. Denied.
19. Denied.
20. Denied.
21. Denied.
22. Denied.
WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and
judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney
fees and costs associated with this litigation, and (c) providing such other and further relief as is just and
proper.
ALTERNATIVE COUNT IV QUANTUM MERUIT
23. Paragraph twenty-three (23) is not an allegation, but rather is a statement that requires
neither an admission nor a denial. Out of an abundance of caution, denied.
24. Paragraph twenty-four (24) is not an allegation, but rather is a statement that requires
neither an admission nor a denial. Out of an abundance of caution, denied.
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25. Denied.
26. Denied.
27. Denied.
28. Denied.
29. Denied.
30. Denied.
WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and
judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney
fees and costs associated With this litigation, and (c) providing such other and further relief as is just and
proper.
3 l. Denied as phrased.
WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and
judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney
fees and costs associated With this litigation, and (c) providing such other and further relief as is just and
proper.
GENERAL DENIAL
Plaintiff/Counter-Defendant denies each and every allegation not expressly admitted herein, and
demands strict proof thereof. To the extent the section of Defendants/Counter-Plaintiffs' filing titled
"Facts Common to All Affinitive Defenses" is characterized as a set of allegations, then Paragraphs
twenty-six through thirty-two (26-32) are expressly Denied.
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AFFIRNIATIVE DEFENSES TO COUNTERCLAIM
First Defense
(Prior Breach of Lease)
Claws breached the valid Lease at-issue when it did not timely pay rent as required by the Lease.
Any allegation of a breach by ZR is controverter by the primary breach of Claws. Claws damaged ZR.
Second Defense
(Prior Breach of Lease)
Claws breached the valid Lease at-issue when it used the property for purposes not contemplated
by or otherwise provided for in the required by the Lease. Indeed, Claws was fully aware that the property
was not zoned for how Claws used the property, and contrary to Claws' rendition of the facts, there were
never any discussions between any party regarding the proper use of the property outside of what is
contained in Paragraph nine (9) of the Lease. Any allegation of a breach by ZR is controverter by the
primary breach of Claws. Claws damaged ZR.
Third Defense
(Unclean Hands)
Claws' claims are barred, in Whole or in part, by the doctrine of unclean hands. Claws breached
the Lease on which this suit is based, and thus may not maintain a Counterclaim for relief. Any allegation
of a breach by ZR is controverter by the primary breach of Claws. Claws damaged ZR.
Fourth Defense
(Waiver)
Because Claws did not comply with its obligations under the Lease, it waived any claims it
otherwise might have under the Lease. See Raymondjames Fin. Serbs., Inc. V Saldukas, 896 So.2d 707,
711 (Fla. 2005)(holding that waiver is defined "as the voluntary and intentional relinquishment of a
known right or conduct which implies the voluntary and intentional relinquishment of a known right.")
Fifth Defense
(Repudiation)
Claws deliberately did not perform under the Lease, inter alia, Claws did not timely pay rent as
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required by the Lease, and thus it may not maintain a Counterclaim for relief.
Sixth Defense
(Repudiation)
Claws deliberately did not perform under the Lease, inter alia, Claws was fully aware that the
property was not zoned for how Claws used the property, and contrary to Claws' rendition of the facts,
there were never any discussions between any party regarding the proper use of the property outside of
what is contained in Paragraph nine (9) of the Lease. Thus it may not maintain a Counterclaim for relief.
Seventh Defense
(Estoppel)
The causes of action alleged by Claws are barred by reason of acts, omissions, representations
and misconduct by Claws upon which ZR was led to rely to its detriment. Thus, under the doctrine of
estoppels, any causes of action asserted by Claws are barred or otherwise fail as a matter of law.
Eifzhth Defense
(Breach of Implied Covenant of Good Faith and Fair Dealing)
Claws failed to act in good faith, indeed, (a) there was a contract, (b) ZR substantially completed
the contract, (C) Claws was able to perform the contract, (d) Claws did not pay rent, (e) Claws did not
meet the reasonable contract expectations, and (f) ZR is damaged as a result.
ADDITIONAL DEFENSES AND CLAIMS
Because Plaintiff/Counter-Defendant's investigation is still ongoing, and the parties have not yet
entered the discovery phase of the case, ZR reserves the right to add any additional affirmative defenses
and/or claims that are uncovered and applicable to the case at bar. Indeed, Plaintiff/Counter-Defendant
plans to participate in discovery, including gathering Written and oral testimony, and the tiling of any
dispositive motions prior to the conclusion of the discovery period would be premature.
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WHEREFORE, Plaintiff/Counter-Defendant respectfully requests that this Counterclaim be
dismissed and that it be awarded, attorney fees, costs and such other relief as is just and equitable.
Respectfully submitted this 28th day of March, 2016.
/s/John DeGirolamo
JOHNNY G. DEGIROLAMO, ESQ.
FLORIDA BAR NO: 0089792
The Law 0jj'ices of John DeGirolamo, Esq.
1 101 East Cumberland Avenue, Ste. 301-B
Tampa, Florida 33602
Co-Counselfor Plaintyj"
Phone: (813) 415-3510
Pr. Email: J aix niuizéi ni axwvfetmsi. cam
Sc. Email: Service(a1iniaw\;veiti'ust.cam
CERTIFICATE OF SERVICE
I certify that a tme copy was tiled with the Clerk of Court via the Florida State e-tiling portal,
and served by e-mail to Scott D. Stamatalds, Esq. (Service@.mvinimt".wan) on this 28fh day of March,
2016.
/s/John De Girolamo
JOHNNY G. DEGIROLAMG, ESQ.
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Preview
Filing # 39492550 E-Filed 03/28/2016 07:35:23 AM IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT IN AND FOR HILLSBOROUGH CQUNTY, FLORIDA CIVIL DIVISION Z&R PARTNERS, LLC, a Florida Limited Liability Company, Plaintiff CASE NO.: 15-CA-010865 VS. DIVISIONS D CLAWS AND MORE, INC., a Florida Corporation AND JANICE TRUEWELL., Defendant(s) / ANSWER AND AFFIRMATIVE DEFENSES Plaintiff/Counter-Defendant, Z&R PARTNERS, LLC ("ZR"), by the undersigned counsel, hereby answers and defends the Counterclaim filed by Defendants/Counter-Plaintiffs, CLAWS AND MORE, INC. ("ClaWs") and JANICE TRUEWELL, and as grounds therefore states as follows: ANSWER TO COUNTERCLAIM Defendants/Counter-Plaintiffs mis-numbered their Paragraphs throughout their response and Counterclaim. In that regard, Plaintiff/Counter-Defendant responds accordingly to the Paragraphs as they are numbered. COUNT I BREACH OF LEASE 1. Plaintiff/Counter-Defendant admits, for jurisdictional purposes only, that this matter purports to be an action against it for damages in excess of Fifteen Thousand Dollars ($l5,000.00), but expressly denies that it is liable to Defendant/Counter-Plaintiffs for any amount. 2. Denied. 3. Paragraph three (3) is not an allegation, but rather is a statement that requires neither an admission nor a denial. Out of an abundance of caution, denied. 1 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 1 4. Denied. 4. Denied. 5. Denied as phrased. 6. Paragraph Six (6) is not an allegation, but rather is a statement that requires neither an admission nor a denial. Out of an abundance of caution, denied. WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney fees and costs associated with this litigation, and (c) providing such other and further relief as is just and proper. COUNT II INTENTIONAL FRAUDULENT MISREPRESENTATION AND IDUCEMENT [sic] 7. Plaintiff/Counter-Defendant admits, for jurisdictional purposes only, that this matter purports to be an action against it for damages in excess of Fifteen Thousand Dollars ($l5,000.00), but expressly denies that it is liable to Defendant/Counter-Plaintiffs for any amount. 8. Denied. 9. Paragraph nine (9) is not an allegation, but rather is a statement that requires neither an admission nor a denial. Out of an abundance of caution, denied. 10. Denied. 11. Denied. 12. Denied. 13. Denied. 14. Denied. WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney 2 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 2 fees and costs associated with this litigation, and (c) providing such other and further relief as is just and proper. COUNT III NEGLIGENT FRAUDULENT MISREPRESENTATION AND INDUCEMENT 15. Plaintiff/Counter-Defendant admits, for jurisdictional purposes only, that this matter purports to be an action against it for damages in excess of Fifteen Thousand Dollars ($l5,000.00), but expressly denies that it is liable to Defendant/Counter-Plaintiffs for any amount. 16. Denied. 17. Paragraph seventeen (17) is not an allegation, but rather is a statement that requires neither an admission nor a denial. Out of an abundance of caution, denied. 18. Denied. 19. Denied. 20. Denied. 21. Denied. 22. Denied. WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney fees and costs associated with this litigation, and (c) providing such other and further relief as is just and proper. ALTERNATIVE COUNT IV QUANTUM MERUIT 23. Paragraph twenty-three (23) is not an allegation, but rather is a statement that requires neither an admission nor a denial. Out of an abundance of caution, denied. 24. Paragraph twenty-four (24) is not an allegation, but rather is a statement that requires neither an admission nor a denial. Out of an abundance of caution, denied. 3 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 3 25. Denied. 26. Denied. 27. Denied. 28. Denied. 29. Denied. 30. Denied. WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney fees and costs associated With this litigation, and (c) providing such other and further relief as is just and proper. 3 l. Denied as phrased. WHEREFORE, Plaintiff/Counter-Defendant prays this Honorable Court for its order and judgment (a) denying all relief sought by Plaintiff/Counter-Defendant, (b) awarding them their attorney fees and costs associated With this litigation, and (c) providing such other and further relief as is just and proper. GENERAL DENIAL Plaintiff/Counter-Defendant denies each and every allegation not expressly admitted herein, and demands strict proof thereof. To the extent the section of Defendants/Counter-Plaintiffs' filing titled "Facts Common to All Affinitive Defenses" is characterized as a set of allegations, then Paragraphs twenty-six through thirty-two (26-32) are expressly Denied. // // // // // 4 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 4 AFFIRNIATIVE DEFENSES TO COUNTERCLAIM First Defense (Prior Breach of Lease) Claws breached the valid Lease at-issue when it did not timely pay rent as required by the Lease. Any allegation of a breach by ZR is controverter by the primary breach of Claws. Claws damaged ZR. Second Defense (Prior Breach of Lease) Claws breached the valid Lease at-issue when it used the property for purposes not contemplated by or otherwise provided for in the required by the Lease. Indeed, Claws was fully aware that the property was not zoned for how Claws used the property, and contrary to Claws' rendition of the facts, there were never any discussions between any party regarding the proper use of the property outside of what is contained in Paragraph nine (9) of the Lease. Any allegation of a breach by ZR is controverter by the primary breach of Claws. Claws damaged ZR. Third Defense (Unclean Hands) Claws' claims are barred, in Whole or in part, by the doctrine of unclean hands. Claws breached the Lease on which this suit is based, and thus may not maintain a Counterclaim for relief. Any allegation of a breach by ZR is controverter by the primary breach of Claws. Claws damaged ZR. Fourth Defense (Waiver) Because Claws did not comply with its obligations under the Lease, it waived any claims it otherwise might have under the Lease. See Raymondjames Fin. Serbs., Inc. V Saldukas, 896 So.2d 707, 711 (Fla. 2005)(holding that waiver is defined "as the voluntary and intentional relinquishment of a known right or conduct which implies the voluntary and intentional relinquishment of a known right.") Fifth Defense (Repudiation) Claws deliberately did not perform under the Lease, inter alia, Claws did not timely pay rent as 5 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 5 required by the Lease, and thus it may not maintain a Counterclaim for relief. Sixth Defense (Repudiation) Claws deliberately did not perform under the Lease, inter alia, Claws was fully aware that the property was not zoned for how Claws used the property, and contrary to Claws' rendition of the facts, there were never any discussions between any party regarding the proper use of the property outside of what is contained in Paragraph nine (9) of the Lease. Thus it may not maintain a Counterclaim for relief. Seventh Defense (Estoppel) The causes of action alleged by Claws are barred by reason of acts, omissions, representations and misconduct by Claws upon which ZR was led to rely to its detriment. Thus, under the doctrine of estoppels, any causes of action asserted by Claws are barred or otherwise fail as a matter of law. Eifzhth Defense (Breach of Implied Covenant of Good Faith and Fair Dealing) Claws failed to act in good faith, indeed, (a) there was a contract, (b) ZR substantially completed the contract, (C) Claws was able to perform the contract, (d) Claws did not pay rent, (e) Claws did not meet the reasonable contract expectations, and (f) ZR is damaged as a result. ADDITIONAL DEFENSES AND CLAIMS Because Plaintiff/Counter-Defendant's investigation is still ongoing, and the parties have not yet entered the discovery phase of the case, ZR reserves the right to add any additional affirmative defenses and/or claims that are uncovered and applicable to the case at bar. Indeed, Plaintiff/Counter-Defendant plans to participate in discovery, including gathering Written and oral testimony, and the tiling of any dispositive motions prior to the conclusion of the discovery period would be premature. // // 6 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 6 WHEREFORE, Plaintiff/Counter-Defendant respectfully requests that this Counterclaim be dismissed and that it be awarded, attorney fees, costs and such other relief as is just and equitable. Respectfully submitted this 28th day of March, 2016. /s/John DeGirolamo JOHNNY G. DEGIROLAMO, ESQ. FLORIDA BAR NO: 0089792 The Law 0jj'ices of John DeGirolamo, Esq. 1 101 East Cumberland Avenue, Ste. 301-B Tampa, Florida 33602 Co-Counselfor Plaintyj" Phone: (813) 415-3510 Pr. Email: J aix niuizéi ni axwvfetmsi. cam Sc. Email: Service(a1iniaw\;veiti'ust.cam CERTIFICATE OF SERVICE I certify that a tme copy was tiled with the Clerk of Court via the Florida State e-tiling portal, and served by e-mail to Scott D. Stamatalds, Esq. (Service@.mvinimt".wan) on this 28fh day of March, 2016. /s/John De Girolamo JOHNNY G. DEGIROLAMG, ESQ. 7 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 7 8 03/28/2016 7:35 AM Electronically Filed: Hillsborough County/13th Judicial Circuit Page 8