Preview
8/23/2010 10:36 AM James B. Jett Page 1
/amex/ reply to def affirmative def amex pit plead 7
IN THE CIRCUIT COURT IN AND FOR
CLAY COUNTY, FLORIDA
ANITA L. JOHNSON
Plaintiff
CIVIL DIVISION
VS
CASE NO. 2010-CA-1451
AMERICAN EXPRESS COMPANY
Defendant
___REPLY TO AND MOTION TO STRIKE
| DEFENDANT’S AFFIRMATIVE DEFENSES
Comes now Plaintiff Anita L. Johnson, by and through undersigned counsel,
and replies to Defendant’s affirmative defenses raised in its answer and moves this
Honorable Court to strike on the grounds that the affirmative defenses fail to state a
legal defense. Plaintiff restates Defendant’s defenses and replies to each:
Sccond Affirmative Defense: The Complaint is barred by Plaintiff's anticipatory
breach of contract since she failed to comply with the terms of the card member
agreement that governs the relationship between the parties herein.
Reply to Second Affirmative Defense: A conclusory allcgation, without allega-
tions of ultimate fact showing entitlement to relief, will not state a legal defense.
Cady v. Chevy Chase Sav. and Loan, Inc., 528 So.2d 136 (Fla. App. 4" Dist. 1988).
Defendant has alleged no facts tending to show how Plaintiff's anticipatorily
18/23/2010 10:36 AM James B. Jett Page 2
breached the credit card contract or how such breach would operate to bar the
Plaintiff's statutory §559.72 claim.
Third Affirmative Defense: The Plaintiff cannot recover damages against Defen-
dant for the alleged violations since the acts complained of were not done by De-
fendant, nor were they done with Defendant's knowledge or consent and are there-
fore barred by state and federal law pursuant to 559.77(5).
Reply to Third Affirmative Defense: Defendant fails to state a legal defense he-
cause Defendant is liable for the tortuous conduct of its agent under the theory of
respondeat superior. See Reply to Eighth Affirmative Defense, infra.
Fourth Affirmative Defense: The Defendant is not liable due to a bona fide error.
Reply to Fourth Affirmative Defense: Defendant has stated no ultimate facts
showing the basis of the defense. Conclusory declaration stating that defendant
maintained procedures failed to establish a bona fide error defense under the
FDCPA. Reichert v. Nat'l Credit Sys., Inc., 531 F.3d 1002, 1006 (9th Cir.2008). In
applying and construing Civil Remedies, due consideration and preat weight shall be
given to the interpretations of the federal courts relating to the federal Fair Debt
Collection Practices Act. Fla. Stat, §559.77(5).
Fifth Affieative Defense: The Complaint is barred by the doctrine of laches as
Plaintiff waiting until the statute of limitations to run on the debt owed to Defendant8/23/2010 10:36 AM James B. Jett Page 3
by Plaintiff before filing suit.
Reply to Fifth Affirmative Defense: The affirmative defense fails to state a legal
defense because Laches does not apply to Plaintiff's §559.72 claim.
Defendant contends laches bars Plaintiff's action. Laches does not apply to
Plaintiff's $559.72 claim. Laches presupposes that claim is equitable, has no li-
mitation period in which to be brought, and Plaintiff has "slept on her rights,” and
that, as a result of some prejudicial delay, it would be inequitable to allow her
§559.72 claim. Plaintiff's claim is legal for which there is a two year period of
limitation. Plaintiff has brought her claim within that statutory period. There is
has been no delay as would prejudice Defendant in defending the claim. Conse-
quently, laches does apply to bar Plaintiffs claim.
Plaintiff waiting until the statute of limitations to run on the debt before filing
her §559.72 claim is not a basis for relief. Defendant fails to allege facts showing
Plaintiff has gained some unfair advantage over Defendant’s ability to defend the
claim through passage of time.
The asserted affirmative defense is equivalent to Defendant claiming Plaintiff
may not bring an independent §559.72 action because Plaintiff waited until De-
fendant’s contract remedies had expired. Without more, this does not state a legal
defense.8/23/2010 10:36 AM James B. Jett Page 4
Sixth Affirmative Defense: The Complaint is barred by the statute of limitations.
Reply to Sixth Affirmative Defense: Defendant’s defense fails because the com-
plaint is not barred by the applicable statute of limitation. Paragraph 13 of the
complaint alleges the violations occurred subsequent to January 8, 2009. Fla. Stat.
§559.72 (4) states “(a)n action brought under this section must be commenced
within 2 years after the date on which the alleged violation occurred.” This action
was filed on July 6, 2010, well within the statutory time for bringing the action.
Seventh Affirmative Defense: The Complaint is barred by the doctrine of unclean
hands as Plaintiff waiting until the statute of limitations to run on the debt owed to
Defendant before filing suit.
Reply te Seventh Affirmative Defense: This defense fails as a matter of law be-
cause Defendant has not alleged the Plaintiff acted fraudulently, unfairly or with any
kind of trickery so as to prevent Defendant from suing on the debt within the four
years of Plaintiff's default. The doctrine of unclean hands or equitable estoppel
applies “where one, by word, act or conduct, willfully caused another to believe in
the existence of a certain state of things, and thereby induces him to act on this belief
injuriously to himself, or to alter his own previous condition to his injury.”
FLORIDA DURS v. SAP, 835 So.2d 1091, 1097 (Fla., 2002). A party must prove
that he was injured in order for the unclean hands doctrine to apply. MeCollem v.8/23/2010 10:36 AM James B. Jett Page 5
{|
)
|
|
Chidnese, 832 S024 194, 195 (Fla. App. 4" Dist. 2002). The conduct constituting
the unclean hands must generally be connected with the matter in litigation and must
affect the adverse party. Jd. Defendant has alleged no ultimate facts showing
Plaintiff induced Defendant from suing on the debt within the statutory period.
Defendant has pled no injury by failing to sue, nor that the failure to sue by De-
fendant was somehow connected with Plaintiff's §559.72 action.
Eighth Affirmative Defense: The Complaint fails to include an indispensable party
or parties in that the agent or collection agency who was responsible for the alleged
acts is not named
Reply to Righth Affirmative Defense: The defense fails as a matter of law be-
cause Defendant is liable for the acts of its agent for collection under the doctrine of
respondeat superior.
In Dieas v, Assosiates Loan Co., 99 So.2d 279 (Fla. 1957), our Supreme
Court held a loan company liable for the tort of an agent where the (1) duties of the
agent included the collection of money for the company and the (2) torts were
committed within the real or apparent scope of the master’s business. The Court
explained “(t)he liability of the master for intentional acts which constitute legal
wrongs can only heise when that which is done is within the real or apparent scope of
the master's business.” Id. at 281.8/23/2010 10:36 AM James B. Jett Page 6
The first element, that the duties of the agent included the collection of money
for the company, is shown by the following new allegations:
1. American Express wrote the Plaintiff numerous letters offering Plaintiff incen-
tives to pay the debt and/or settle the debt.
2. These lters bear the distinctive AMEX logo and are signed either “American
Express” or M. Ghazavi, Director of Collections.
3. One such letter states collection efforts may continue if payment is not received.
This particular letter is signed by M. Ghazavi, Director of Collections with a request
that payment be made to American Express, P.O. box 36000, Fort Lauderdale, Fl
33336. |
These facts allege M. Ghazavi, Director of Collections, an agent of American
Express, made sjanerous attempts to collect on the debt for American Express as
was his apparent duty as director of collections.
The second element, that the statutory torts were committed within the real or
apparent scope of the master’s collection business, is shown by the allegation,
complaint at 10, that the pre-recorded messages asked the debtor to call American
Express. It has becn held that messages left on a debtor's answering machine can be
considered communications regarding the collection of a debt, even if the debt
|
collector fails to expressly mention that the call pertains to collection, payment,8/23/2010 10:36 AM James B. Jett Page 7
deadlines or any other observable characteristics of a collection call. Ramirez v.
Apex Financial Management, LLC,, 567 F.Supp.2d 1035 (N.D. IL. 2008).
Moreover, Defendant judicially admits’ in stating its affirmative defense that an
agent for collection was responsible for the alleged acts. That agent was identified
as the director of collections of American Express, above. The telephone call
content and the admission show the violations were committed while collecting and
within the scope of collecting the debt for American Express. Consequently, the
Defendant, American Express, is liable for the telephone calls to the Plaintiff.
Ninth Affirmative Defense: Any damages claimed by Plaintiff are set off by the
amount she owes Defendant for unpaid credit card charges in excess of$15,000.00.
Reply to Ninth Affirmative Defense: Defendant failed to state a legal defense
because it is well-settled that a permissive counterclaim will be barred if it is filed
beyond the sate of limitations. Smith v. Florida Dept. of Corrections, 27 So0.3d
124, 127 (Fla. App. 1* Dist. 2010). Defendant’s affirmative defense is essentially a
counterclaim. It would be a permissive counter claim because it does not arise out
of the transaction or occurrence that is the subject matter of Plaintiffs §559.72
claim. Plaintiff alleges the following new facts in support of this Ninth Reply:
|
r
1 A pleading prepared by an attorney is an admission by one presumptively authorized to speak for his principal.
Unless amended or withdrawn, it is a conclusive judicial admission and is competent evidence of the facts stated made
by a party or his agent. U.S. v. GAF Corp., 928 F.2d. 1253, 1259 (2nd Cir. 1991).
7
|
!
|
|8/23/2010 10:36 AM James B. Jett Page 8
4. The credit card contract at issue is governed by the Laws of Utah.
5.. Utah Code 78B-2-307 provides an action may be brought within four years after
the last payment is received or upon an obligation or liability not founded upon an
instrument in writing.
6. Under Utah’s Uniform Commercial Code, an instrument in writing does not in-
clude writings that evidence a right to payment arising out of the use of a credit or
charge card. 70A-9a-102(47\ Mii).
7. The date Plain made the last payment on the debt was on or about February 15,
2005. !
8. Defendant raised the setoff defense on July 29, 2010, in its answer.
Consequently, any setoff would be barred because the Defendant failed to raise the
|
defense within four years of Plaintiff's default.
Tenth Affirmative Defense: Any damages claimed by Plaintiff are barred by the
express terms of the written agreement governing the relationship between the par-
ties.
Reply to Tenth Affirmative Defense: Defendant has alleged no facts tending to
show the exprest terms of the written agreement governing the relationship between
the parties bars recovery. A conclusory allegation, without allegations of ultimate
fact showing entitlement to relief, will not state a legal defense. Cady v. Chevy
| 88/23/2010 10:36 AM James B. Jett Page 9
Chase Sav. and Loan, Inc., 528 So.2d 136 (Fla. App. 4” Dist. 1988).
Eleventh Affirmative Defense: Plaintiff s claims are barred by the economic loss
rule since there is the existence of a written agreement between the parties.
Reply to Eleventh Affirmative Defense: Defendant fails to state a legal defense
because the “economic loss rule” has no application to the facts of this case.
The economic loss doctrine bars a plaintiff's recovery of purely economic
damages under a fort theory where there has been no injury to person ot property
incident to a defendant's breach of contract. HTP, Ltd. v. Lineas Aereas Costarri-
censes, S.A., 685 So.2d 1238, 1239 (Fla. 1996). The rule has no application to the
facts alleged because of the misalignment of the parties. In a typical economic loss
scenario, the Plaintiff (Johnson in this case) claims she was damaged economically
by defendant’s (American Express in our case) tort, committed as an incident to
American Express’ breach of the credit card contract. The rule would bar
Johnson’s tort claim; leaving Johnson to her remedies under the credit card contract.
Under the|alleged facts of this case, Plaintiff Johnson committed the breach of
the contract, whereas the rule requires American Express to have committed the
breach. The patties are misaligned; the economic loss rule is not applicable.
A more fundamental reason the economic loss rule does not apply is Plain-
tiff's claim would be independent of the breach of contract. Where a contract ex-
|
98/23/2010 10:36 AM James B. Jett Page 10
ists, a tort action will lie for either intentional or negligent acts considered to be
independent from acts that breached the contract. /d at 1239. The economic loss
tule does not preclude a statutory cause of action involving consumer transactions
because the Legislature's intent when it enacted the remedies under §559.72 was to
establish a cause of action independent of any contractual obligation which may
|
exist between the parties. See South Motor Co. v. Doktorczyk, 957 So.2d 1215,
1218 (Fla. App. 3d Dist 2007) (construing the FDUTPA, a similar consumer pro-
|
tection statute “8 an independent cause of action). Consequently, Defendant’s
economic loss rule defense fails on two accounts.
|
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays the Court to strike Defendant’s Affirmative
Defenses to which the Plaintiff has replied, award attorney fees, and such other relief
as the Court deems appropriate.
108/23/2010 10:36 AM James B. Jett Page 11
CERTIFICATE OF SERVICE
I certify that a copy hereof has been furnished Attorney Drew Beinhaker, by
first class mail addressed to 4060 Sheridan x C, Hollfwood, Florida 33021, this
23" day of August, 2010. :
| pe o a po ,
| 3209 Wandering Oaks Drive
| Orange Park, FL 32065
(904) 291-2074 Fax: (904) 291-2809
| Email: gonniej@ ‘comcast.net
li
Preview
8/23/2010 10:36 AM James B. Jett Page 1 /amex/ reply to def affirmative def amex pit plead 7 IN THE CIRCUIT COURT IN AND FOR CLAY COUNTY, FLORIDA ANITA L. JOHNSON Plaintiff CIVIL DIVISION VS CASE NO. 2010-CA-1451 AMERICAN EXPRESS COMPANY Defendant ___REPLY TO AND MOTION TO STRIKE | DEFENDANT’S AFFIRMATIVE DEFENSES Comes now Plaintiff Anita L. Johnson, by and through undersigned counsel, and replies to Defendant’s affirmative defenses raised in its answer and moves this Honorable Court to strike on the grounds that the affirmative defenses fail to state a legal defense. Plaintiff restates Defendant’s defenses and replies to each: Sccond Affirmative Defense: The Complaint is barred by Plaintiff's anticipatory breach of contract since she failed to comply with the terms of the card member agreement that governs the relationship between the parties herein. Reply to Second Affirmative Defense: A conclusory allcgation, without allega- tions of ultimate fact showing entitlement to relief, will not state a legal defense. Cady v. Chevy Chase Sav. and Loan, Inc., 528 So.2d 136 (Fla. App. 4" Dist. 1988). Defendant has alleged no facts tending to show how Plaintiff's anticipatorily 18/23/2010 10:36 AM James B. Jett Page 2 breached the credit card contract or how such breach would operate to bar the Plaintiff's statutory §559.72 claim. Third Affirmative Defense: The Plaintiff cannot recover damages against Defen- dant for the alleged violations since the acts complained of were not done by De- fendant, nor were they done with Defendant's knowledge or consent and are there- fore barred by state and federal law pursuant to 559.77(5). Reply to Third Affirmative Defense: Defendant fails to state a legal defense he- cause Defendant is liable for the tortuous conduct of its agent under the theory of respondeat superior. See Reply to Eighth Affirmative Defense, infra. Fourth Affirmative Defense: The Defendant is not liable due to a bona fide error. Reply to Fourth Affirmative Defense: Defendant has stated no ultimate facts showing the basis of the defense. Conclusory declaration stating that defendant maintained procedures failed to establish a bona fide error defense under the FDCPA. Reichert v. Nat'l Credit Sys., Inc., 531 F.3d 1002, 1006 (9th Cir.2008). In applying and construing Civil Remedies, due consideration and preat weight shall be given to the interpretations of the federal courts relating to the federal Fair Debt Collection Practices Act. Fla. Stat, §559.77(5). Fifth Affieative Defense: The Complaint is barred by the doctrine of laches as Plaintiff waiting until the statute of limitations to run on the debt owed to Defendant8/23/2010 10:36 AM James B. Jett Page 3 by Plaintiff before filing suit. Reply to Fifth Affirmative Defense: The affirmative defense fails to state a legal defense because Laches does not apply to Plaintiff's §559.72 claim. Defendant contends laches bars Plaintiff's action. Laches does not apply to Plaintiff's $559.72 claim. Laches presupposes that claim is equitable, has no li- mitation period in which to be brought, and Plaintiff has "slept on her rights,” and that, as a result of some prejudicial delay, it would be inequitable to allow her §559.72 claim. Plaintiff's claim is legal for which there is a two year period of limitation. Plaintiff has brought her claim within that statutory period. There is has been no delay as would prejudice Defendant in defending the claim. Conse- quently, laches does apply to bar Plaintiffs claim. Plaintiff waiting until the statute of limitations to run on the debt before filing her §559.72 claim is not a basis for relief. Defendant fails to allege facts showing Plaintiff has gained some unfair advantage over Defendant’s ability to defend the claim through passage of time. The asserted affirmative defense is equivalent to Defendant claiming Plaintiff may not bring an independent §559.72 action because Plaintiff waited until De- fendant’s contract remedies had expired. Without more, this does not state a legal defense.8/23/2010 10:36 AM James B. Jett Page 4 Sixth Affirmative Defense: The Complaint is barred by the statute of limitations. Reply to Sixth Affirmative Defense: Defendant’s defense fails because the com- plaint is not barred by the applicable statute of limitation. Paragraph 13 of the complaint alleges the violations occurred subsequent to January 8, 2009. Fla. Stat. §559.72 (4) states “(a)n action brought under this section must be commenced within 2 years after the date on which the alleged violation occurred.” This action was filed on July 6, 2010, well within the statutory time for bringing the action. Seventh Affirmative Defense: The Complaint is barred by the doctrine of unclean hands as Plaintiff waiting until the statute of limitations to run on the debt owed to Defendant before filing suit. Reply te Seventh Affirmative Defense: This defense fails as a matter of law be- cause Defendant has not alleged the Plaintiff acted fraudulently, unfairly or with any kind of trickery so as to prevent Defendant from suing on the debt within the four years of Plaintiff's default. The doctrine of unclean hands or equitable estoppel applies “where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury.” FLORIDA DURS v. SAP, 835 So.2d 1091, 1097 (Fla., 2002). A party must prove that he was injured in order for the unclean hands doctrine to apply. MeCollem v.8/23/2010 10:36 AM James B. Jett Page 5 {| ) | | Chidnese, 832 S024 194, 195 (Fla. App. 4" Dist. 2002). The conduct constituting the unclean hands must generally be connected with the matter in litigation and must affect the adverse party. Jd. Defendant has alleged no ultimate facts showing Plaintiff induced Defendant from suing on the debt within the statutory period. Defendant has pled no injury by failing to sue, nor that the failure to sue by De- fendant was somehow connected with Plaintiff's §559.72 action. Eighth Affirmative Defense: The Complaint fails to include an indispensable party or parties in that the agent or collection agency who was responsible for the alleged acts is not named Reply to Righth Affirmative Defense: The defense fails as a matter of law be- cause Defendant is liable for the acts of its agent for collection under the doctrine of respondeat superior. In Dieas v, Assosiates Loan Co., 99 So.2d 279 (Fla. 1957), our Supreme Court held a loan company liable for the tort of an agent where the (1) duties of the agent included the collection of money for the company and the (2) torts were committed within the real or apparent scope of the master’s business. The Court explained “(t)he liability of the master for intentional acts which constitute legal wrongs can only heise when that which is done is within the real or apparent scope of the master's business.” Id. at 281.8/23/2010 10:36 AM James B. Jett Page 6 The first element, that the duties of the agent included the collection of money for the company, is shown by the following new allegations: 1. American Express wrote the Plaintiff numerous letters offering Plaintiff incen- tives to pay the debt and/or settle the debt. 2. These lters bear the distinctive AMEX logo and are signed either “American Express” or M. Ghazavi, Director of Collections. 3. One such letter states collection efforts may continue if payment is not received. This particular letter is signed by M. Ghazavi, Director of Collections with a request that payment be made to American Express, P.O. box 36000, Fort Lauderdale, Fl 33336. | These facts allege M. Ghazavi, Director of Collections, an agent of American Express, made sjanerous attempts to collect on the debt for American Express as was his apparent duty as director of collections. The second element, that the statutory torts were committed within the real or apparent scope of the master’s collection business, is shown by the allegation, complaint at 10, that the pre-recorded messages asked the debtor to call American Express. It has becn held that messages left on a debtor's answering machine can be considered communications regarding the collection of a debt, even if the debt | collector fails to expressly mention that the call pertains to collection, payment,8/23/2010 10:36 AM James B. Jett Page 7 deadlines or any other observable characteristics of a collection call. Ramirez v. Apex Financial Management, LLC,, 567 F.Supp.2d 1035 (N.D. IL. 2008). Moreover, Defendant judicially admits’ in stating its affirmative defense that an agent for collection was responsible for the alleged acts. That agent was identified as the director of collections of American Express, above. The telephone call content and the admission show the violations were committed while collecting and within the scope of collecting the debt for American Express. Consequently, the Defendant, American Express, is liable for the telephone calls to the Plaintiff. Ninth Affirmative Defense: Any damages claimed by Plaintiff are set off by the amount she owes Defendant for unpaid credit card charges in excess of$15,000.00. Reply to Ninth Affirmative Defense: Defendant failed to state a legal defense because it is well-settled that a permissive counterclaim will be barred if it is filed beyond the sate of limitations. Smith v. Florida Dept. of Corrections, 27 So0.3d 124, 127 (Fla. App. 1* Dist. 2010). Defendant’s affirmative defense is essentially a counterclaim. It would be a permissive counter claim because it does not arise out of the transaction or occurrence that is the subject matter of Plaintiffs §559.72 claim. Plaintiff alleges the following new facts in support of this Ninth Reply: | r 1 A pleading prepared by an attorney is an admission by one presumptively authorized to speak for his principal. Unless amended or withdrawn, it is a conclusive judicial admission and is competent evidence of the facts stated made by a party or his agent. U.S. v. GAF Corp., 928 F.2d. 1253, 1259 (2nd Cir. 1991). 7 | ! | |8/23/2010 10:36 AM James B. Jett Page 8 4. The credit card contract at issue is governed by the Laws of Utah. 5.. Utah Code 78B-2-307 provides an action may be brought within four years after the last payment is received or upon an obligation or liability not founded upon an instrument in writing. 6. Under Utah’s Uniform Commercial Code, an instrument in writing does not in- clude writings that evidence a right to payment arising out of the use of a credit or charge card. 70A-9a-102(47\ Mii). 7. The date Plain made the last payment on the debt was on or about February 15, 2005. ! 8. Defendant raised the setoff defense on July 29, 2010, in its answer. Consequently, any setoff would be barred because the Defendant failed to raise the | defense within four years of Plaintiff's default. Tenth Affirmative Defense: Any damages claimed by Plaintiff are barred by the express terms of the written agreement governing the relationship between the par- ties. Reply to Tenth Affirmative Defense: Defendant has alleged no facts tending to show the exprest terms of the written agreement governing the relationship between the parties bars recovery. A conclusory allegation, without allegations of ultimate fact showing entitlement to relief, will not state a legal defense. Cady v. Chevy | 88/23/2010 10:36 AM James B. Jett Page 9 Chase Sav. and Loan, Inc., 528 So.2d 136 (Fla. App. 4” Dist. 1988). Eleventh Affirmative Defense: Plaintiff s claims are barred by the economic loss rule since there is the existence of a written agreement between the parties. Reply to Eleventh Affirmative Defense: Defendant fails to state a legal defense because the “economic loss rule” has no application to the facts of this case. The economic loss doctrine bars a plaintiff's recovery of purely economic damages under a fort theory where there has been no injury to person ot property incident to a defendant's breach of contract. HTP, Ltd. v. Lineas Aereas Costarri- censes, S.A., 685 So.2d 1238, 1239 (Fla. 1996). The rule has no application to the facts alleged because of the misalignment of the parties. In a typical economic loss scenario, the Plaintiff (Johnson in this case) claims she was damaged economically by defendant’s (American Express in our case) tort, committed as an incident to American Express’ breach of the credit card contract. The rule would bar Johnson’s tort claim; leaving Johnson to her remedies under the credit card contract. Under the|alleged facts of this case, Plaintiff Johnson committed the breach of the contract, whereas the rule requires American Express to have committed the breach. The patties are misaligned; the economic loss rule is not applicable. A more fundamental reason the economic loss rule does not apply is Plain- tiff's claim would be independent of the breach of contract. Where a contract ex- | 98/23/2010 10:36 AM James B. Jett Page 10 ists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract. /d at 1239. The economic loss tule does not preclude a statutory cause of action involving consumer transactions because the Legislature's intent when it enacted the remedies under §559.72 was to establish a cause of action independent of any contractual obligation which may | exist between the parties. See South Motor Co. v. Doktorczyk, 957 So.2d 1215, 1218 (Fla. App. 3d Dist 2007) (construing the FDUTPA, a similar consumer pro- | tection statute “8 an independent cause of action). Consequently, Defendant’s economic loss rule defense fails on two accounts. | PRAYER FOR RELIEF WHEREFORE, Plaintiff prays the Court to strike Defendant’s Affirmative Defenses to which the Plaintiff has replied, award attorney fees, and such other relief as the Court deems appropriate. 108/23/2010 10:36 AM James B. Jett Page 11 CERTIFICATE OF SERVICE I certify that a copy hereof has been furnished Attorney Drew Beinhaker, by first class mail addressed to 4060 Sheridan x C, Hollfwood, Florida 33021, this 23" day of August, 2010. : | pe o a po , | 3209 Wandering Oaks Drive | Orange Park, FL 32065 (904) 291-2074 Fax: (904) 291-2809 | Email: gonniej@ ‘comcast.net li