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Filing # 89497405 E-Filed 05/14/2019 02:03:52 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
IRIS BEAUGRAND, individually and as
POA for Heidrun Riedner,
Plaintiff,
v. CASE NO: 2017 CA 181
ROBERT O’TOOLE,
Defendant.
/
PLAINTIFF’S MOTION IN LIMINE AND/OR
MOTION TO DETERMINE WHAT JUSTICIABLE ISSUES / CLAIMS OF
DEFENDANT EXIST
Plaintiff, Iris Beaugrand, individually and as POA for Heidrun Riedner, files this motion and
states:
1. The parties stipulated in writing (See attached Exhibit A incorporated herein by this
reference) and on the record at trial in the Sarasota case (defined hereinafter) that “the
parties will resolve and try all issues they have between them” in the court proceeding
in the Sarasota Court in the Twelfth Judicial Circuit Court case number 2016 CA 6351,
Iris Beaugrand v. Robert O’ Toole, (Referenced herein as the “Sarasota case.”)
iro
All issues between the parties were decided, see the final judgment of the Sarasota case
(which is attached as Exhibit B and incorporated herein by this reference.), The Sarasota
case was affirmed in all respects by the Second District Court of Appeal in case number
2D18-1935, Robert O’ Toole, appellant y. Iris Beaugrand, appellee. The clairns and
issues asserted in the counterclaim by Defendant are barred in this matter as a result of
res judicata, collateral estoppel and issue preclusion.
3. In Bryan v. Fernald, 211 $0.3d 333, 335, the Second District Coutt of Appeal stated:
“Under the doctrine of res judicata,
1j/Page[a] judgment on the merits rendered in a former suit between the same
parties or their privies, upon the same cause of action, by a court of
competent jurisdiction, is conclusive not only as to every matter
which was offered and received to sustain or defeat the claim, but as
to every other matter which might with propriety have been litigated
and determined in that action.
Fla. Dep't of Transp. v. Juliano , 801 So.2d 101, 105 (Fla. 2001) (quoting
Kimbrell v. Paige , 448 So.2d 1009, 1012 (Fla. 1984) ). Thus, res judicata
applies when the following four identities are present: "(1) identity of the
thing sued for; (2) identity of the cause of action; (3) identity of persons and
parties to the action; and (4) identity of the quality of the persons for or
against whom the claim is made.” Topps v. State , 865 So.2d 1253, 1255 (Fla.
2004). This court reviews de novo the trial court's application of res
judicata. See Campbell v, State , 906 So.2d 293, 295 (Fla. 2d DCA 2004).”
4, Whether causes of action in a subsequent lawsuit between the same parties are the same,
depends on whether the facts or evidence necessary to maintain the suit are the same as the
prior lawsuit. Bryan at 335-336 (citing Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984). See
also U.S. Project Memt., Inc. Pare Royale E. Dev., Inc., 861 So.2d 74, 76 (Fla. 4 DCA
2003).
5. As stated in Aronowitz v. Home Diagnostics, Inc., Fla. 4" DCA 2015), if the causes of
action are the same, then res judicata would bar
“every other matter which the parties might have litigated and had determined,
within the issues as [framed] by the pleadings or as incident to or essentially
connected with the subject matter’ of the first litigation." Zikofsky v. Mktg. 10, Inc.,
904 So. 2d 520, 523 (Fla. 4th DCA 2005) (quoting Hav v. Salisbury, 109 So. 617,
621 (1926) and Tyson v. Viacom, Inc., 890 So. 2d 1205, 1214 (Fla. 4th DCA 2005)
(Gross, J., concurring) (quotation marks omitted).”
6. Even if the causes of action are not the same, collateral estoppel would apply to any issues
“that were actually litigated and decided by the former suit.” Zikofsky 902 So.3d 520, 525
(Fla. 4% DCA 2005).
—2|Page7. As to Plaintiff's complaint for partition of jointly owned property of the parties in Sarasota
County, ie. 1855 Bayshore Dr, Englewood, FL 34223, the final judgment (Exhibit “B”) is
res judicata as to issues asserted herein in regards to this property including but not limited
to: what the respective interests of the parties are in the property and what each party
contributed to the property. Further, Defendant Robert O’Toole’s claim for a special equity
in this property was denied in the Sarasota case.
8. In light of Plaintiff’s complaint for partition herein of jointly owned property of the parties
in Charlotte County, ie. 808 E. First Street, Englewood, FL 34223 (the “Charlotte
property”), whether partition relief should be granted, what the respective interests of the
parties are in this property, and what their proportionate share in the proceeds should be
has already been decided in the Sarasota case.
9. Further, in light of Defendant’s extensive counterclaim filed in the Sarasota case (see
attached Exhibit “C”) and the disposition of that counterclaim, see the final judgment of
the Sarasota case at Exhibit “B,” claims associated with the Charlotte property and the
Pinto property have already been decided.
10. In sum, all equitable and damage claims of Defendant Robert O’ Toole against Plaintiff Iris
Beaugrand have been decided in the Sarasota case.
WHEREFORE Iris Beaugrand seeks an order declaring what claims and issues pertaining to
the properties identified in the pleadings of the parties have already been decided and for an
order declaring what issues / claims of Defendant still exist which are being tried in this matter.
3/PageCERTIFICATE OF SERVICE
THEREBY CERTIFY that a true and correct copy of the foregoing has been sent via
Email to Bret Clark, Esq. attorney for Robert O’Toole on this 14th day of May, 2019.
Steele T. Williams, P.A.
Pineapple Place
1381 McAnsh Square
Sarasota, FL 34236-5620
Ph: (941)378-1800
Email: Steele TWilliams@comeast.net
Website: Steele Williams.com
/s/ Steele T. Williams
FBN: 079995
4\PageEXHIBIT AIN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CIVIL ACTION
TRIS BEAUGRAND, individually and as
POA for Heidrun Riedner,
Plaintiff,
ve CASE NO: 17000181 CA
ROBERT O’TOOLE,
Defendant.
initial nen
STIPULATION
COMES NOW the parties to this matter who hereby stipulate to the following:
i. The parties were a couple for many years.
2, Asa part of their relationship they became joint title owners of property. One property is
located in Charlotte County, the other property is located in Sarasota County.
we
Plaintiff has brought a partition and accounting complaint in this court to address the
Jointly title real property in Charlotte County, and a partition and accounting complaint in
Sarasota County to address the jointly title real property in Sarasota County.
4, The parties have another case in the Twelfth Judicial Circuit Court, to-wit: Case Number:
2016 CA 6351 NC (the Sarasota case) which concerns the Sarasota County real property
the parties jointly own.
5. The Sarasota case is set for trial during December 2017, and the parties expect the issues
between them to resolve the title issues and claims involved in this case at such time.
6. For economies of the parties and the judiciary, the parties will resolve and try all issues
they have between them in the Sarasota case and will request the ruling the court in
Sarasota County to be controlling as to the disposition of all matters at issue in this case.
Exhibit A - Or 1lPage7. This matter should be stayed until settlement or resolution of the Sarasota case.
8. Upon resolution of the Sarasota case, the parties, either of them, will report by motion to
this Court what the resolution of the Sarasota case was and what the disposition of this
case should be as a result.
Attorney for Plaintiff Attorney for Defendant
_____ Steele T, Williams (Bret Clark
STEELE T. WILLIAMS, ESQ. BRET CLARK, ESQUIRE
Florida Bar Number 079995 Florida Bar Number 384038
STEELE T. WILLIAMS, PA BRET SHAWN CLARK, PA
1381 McAnsh Square PO BOX 1133
Sarasota, Florida 34236 Englewood, Florida 34295
(941) 378-1800 (941) 404-4704
SteeleT William @ comcast.net BretClark @ WebNetLawyer.Com
Date signed: August 15, 2017 Date signed: August 16, 2017
‘21PageEXHIBIT B¥ CASE NO: 2016 CA 6351
ROBERT O°TOOLE,
Defeadant.
i
RINAL JUDGMENT
THIS CAUSE came to be tried on the causes of action asserted by both parties, including based on
the stipulation of the parties all claims the pertios assert in the Twentieth Judicial Florida Circuit
‘Court Case: 2017 CA 181, io Charlotte County, Florida, and on the evidence presented.
IT IS ADJUDGED thar
1. Plaintiff iris Beangrend, whose address is 616 Pinto Trail, Englewood, FL 34223 and defendant
Robert O'Toole each own an undivided interest as tenants in common in the real property in
Sarasota County, Florida described as:
Parcel description: Lot $53 Gardens Unit 5, as. ‘thereof, recorded
ia Pat Book 4, Page 72, of the Puie Reoods of Sarasota Conwy, Floss
Mailing address: 1855 Bayshore Dr, Englewood, FL 34223
‘This propesty is indivisible and cannot be partitioned in kind and is referred to herein as the
“Sarasota property.”
2. Within 45 Plaintiff shall sobmit a separate order wherein the the Saresots property will be
reed fbn ies sale socondiog to Flori law with the procends of such male ale being
i tend seco mertgages, second the cose of much sale
including rete ne and thereafter the remaining sums
‘atomey h are
to be equally distributed to the parties. ™ "
3. Dh tiMaaot ce:
recommends that the Circuit Court of Charlotte County order aa follows:
a) eet eee ees aaa Rots Toate cath ooh waded ioe
Senants in common in the real property in Charlotte County, Florida
‘Lot | and 2, Block B, Rock Creek Pari, according to the plat thereof as recorded in
Leet Maen ret eet "
Mailing address: 808 B. First Street, Englewood, FL 34223
EB " ik it 6 : ijPage
OTe
Filed 05/02/2018 01:03 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLft
b) This property is indivisible and cannot be partitioned in kind and is referred to herein as the
? “Charlotte property.”
cane of Circuit Court Case: 2017 CA
iain Gusione Gonna
The is to be sold st a judi law with the
a) cots ofan a bene Hs odilal se scoonding to Frida
©) Within 4S days ater enry, Plaintiff hl this judgment with the Charitte Conuty court
© ae oft prt ctf Tweet od
6. As to Defendant's counterclaims, the parties stipulated that Count IV of the counterclaim was
resolved on the record at trial, and as to Counts J, Ul, 111 end V of the counterclaim of Defendant
judgment is entered against Robert O'Toole and in favor of Iris Beaugrand.
7. The court reserves jurisdiction to eatforce this judgment, to award attomtey fees and to tux costs,
AND in Chambers in SARASOTA County, Flvida, this Oday of
ao comme
ANDREA MCHUGH
ce: Sueele T. Williams, Eeq,, attomey for Plaintiff
‘Brot Clarke, Esp, attorney for Defendant
2)Page
Filed 05/02/2018 01:03 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLEXHIBIT CFiling # 56828536 E-Filed 05/23/2017 04:36:47 PM
IN THE 12"! CIRCUIT COURT IN AND FOR
SARASOTA COUNTY, FLORIDA
Case No: 2016 CA 006351 NC
TRIS BEAUGRAND,
Plaintiff
we
DEFENDANT BOB O°TOOLE'S
ANSWER, AFFIRMATIVE DEFENSES,
ROBERT O'TOOLE, AND COUNTER-CLAIM
Defendant,
,
Defendant ROBERT O'TOOLE, by and through undersigned counsel, answers the
complaint in this action as follows:
ANSWER
1. The allegations contained in paragraph 1 of the complaint are admitted for
jurisdictional purposes only.
2. The allegations contained in paragraphs 2, 3, 4 and 13 of the complaint are
admitted,
3. The allegations contained in paragraphs 5, 7, 8, 9, 10 and 12 of the complaint are
denied and strict proof thercof is hereby demanded.
4. With respect to. the allegations contained in paragraph 6 of the complaint
defendant admits that counsel for plaintiff issued a letter to him making certain demands
concerning the disposition of the property that is the subject of this action (@and another
property described dafa at paragraph 11 of the counterclaim) and that litigation against him
would commence should he fail to adhere to these demands. Remainder denied.
5. With respect to the allegations contained in paragraph 11 of the complaint
defendant admits that the property that is the subject of this action is a rental property the
income from which, in part, funds the costs to maintain it. Remainder denied,
Pose
UiPege
Exhibit (7.
Filed. 05/23/2017 05:07 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLBeangrand v, O'Toole
Case #2016 CA NE
6. To the extent allegations are deemed to exist within the wherefore clause or
piayer for relief of the complaint, or ate otherwise not mentioned in the. preceding
paragraphs or otherwise herein, those allegations are denied,
AFFIRMATIVE DEFENSES
7, Asan affirmative defense, defendant asserts that plaintiff has failed to attach
the instruments which form the basis of ber lawsuit against defendant, to wit: the deed, note
and mortgage conceming. the property that is the subject matter of this action, in
contravention of Fla,R.Civ.P. 1,130(a).
8 As an affirmative defense, defendant further asserts that the complaint fails
to state a claim for which telief can be granted in thar plaintiff, in her demand letter that
preceded this action, claimed the existence of a partnership with respect to the property that
is the subject matter of this action, but there are insufficient allegations in the complaint to
support 2 cause of action for disassociation, dissolution and winding up of the affairs of the
purported partnership, or an accounting or other relief, as required by Florida Statute
§620.81002 et, seg. Revised Uniform Partnership Act of 1995).
9. As an affirmative defense, defendant further asserts that the partics are
jointly liable under a note secured by a mortgage that encumbers the property that is the
subject of this action and the forced, premature sale of the property ptior to maturity of the
fote is contrary to the best interests of defendant, and would constitute wrongful
disassociation of defendant as plaintiff's purported partner for this particular undertaking, in
violation of Florida Statute §620.8602(b).
10. As an affirmative defense, defendant further asserts that the complaint fails
to state a-claim upon which relief can be granted to force the sale of the property that is the
subject of this action; for an. accounting; and for payment of plaintiff's legal fess in that-the
complaint does not allege facts sufficient to establish a right to do so.
11, As an affirmative defense, defendant further asserts that the’ property in
question is not occupied by either party, is an invesement property that generates rental
income, and is not a non-divisible property within the meaning of Chapter 64, Florida
21PageBeangrand 2. O'Toole
Case # 2016 CA 6351 NC
Stanutes, avr has plaintiff established a proper basis or compelling reason to force the sale of
the property to the detriment of defendant, who is the rightful owner of it,
12, As an affiemative defense, defendant further asserts: that defendant owned
the property in fee simple prior to his zelationship with plaintiff, deediag the property to
himself and ker with rights of survivorship as a means of estate planning (the parties were
nevet legally married to one another) with no financial contribution by plaintiff whatsoevet.
She consequently has no present interest in the property except as a contingent beneficiary
upon the death of defendant (should he predecease her).
13. As an affirmative. defense, defendant further asserts that plaintiff is not
entitled to seek equitable relief by failing herself to do equity, is estopped from seeking such
relief, or otherwise may not seck such relief by inducing defendant to place her on the title to
his property on the pretense of her love and affection for hima, inducing him by the same
means to pay all costs associated with maintaining this property, without any contribution by
plaintiff towards that end, and then by seeking in this action to deprive defendant of his
rightful interest in the property; force the sale of the property; and cause unnecessary oss
and expense, all to the detriment of defendant.
14, As an. affirmative defense, defendant further asserts that it would. otherwise
be inequitable for plaintiff to be granted the telief demanded in the complaint
15. As an affirmative defense, or by way of set-off or counterclaim, defendant
further asserts that plaintiff has made no financial contribution to the acquisition of the
property that is the subject of this action, has made no contribution towards the costs of
maintaining the property, has made no conitibution towards the management of the
Property, and therofore has no right to disbursement of a portion of the proceeds. over and
above her contribution, if any, towards the costs and management of the property.
16. Defendant has retained undersigned counsel to represent him in this cause and
to compensate him in reasonable fashion for his efforts.
17. To the extent these affirmative defenses or answers are deemed to constitute a
set-off or counterclaim, or vice versa, defendant prays they be so treated.
sieBeangrand v. O'Toole
Case # 2016 CA 6351 NE
WHEREFORE, defendant ROBERT O'TOOLE prays that the Court deny all relief
to plaintiff as against him, or such portion of the relief deemed just and appropriate; enter
judgment in his favor and against plaintiff, either partially or wholly; award to him an
amount by way of set-off or by way of counterclaim in bis favor and against plaintiff for the
amounts justly due to him; award to him attorney fees and costs if appropriate, and
otherwise as provided by law; and that the Court grant such additional and further relief
provided by law and deemed appropriate in the premises.
COUNTERCLAIM
Defendant/Counterplaintiff ROBERT. O'TOOLE, sues plaintiff/counterdefendant
IRIS BEAUGRAND, individually and as attorney in fact under power(s) of attorney. for
KLAUSE GOERKE and HEIDRUN RIEDNER, and alleges as follows:
1 This is an action for equitable and other appropriate relief concerning real
and personal property tided jointly. or individually, as the case may be, wherein the ¢mount in
controversy exceeds $15,000, exclusive of interests and costs.
2. Counterplaintiff ROBERT O'TOOLE (“O'TOOLE is the owner of
record of certain real and personal property, and has an interest in. such properties not of
record, as more fully appears herein.
3. Counterdefendant IRIS BEAUGRAND (BEAUGRAND") is the owner of
record of certain real and personal property, and, as more fully appears herein, has asserted
tights and an interest in others on behalf of her parents, KLAUSE GOERKE and
HEIDRUN RIEDNER, pursuant to a power(s) of attomey to act on their behalf.
4, Atall times material hereto BEAUGRAND was and is-a duly licensed and
practicing Realtor in the State of Florida and has superior knowledge and experience
concerning real estate transactions as compared to O'TOOLE.
5 Sometime in approximately 2005 BEAUGRAND and O°TOOLE began a
committed relationship with. one another and shortly thereafter began to cohabitate in the
seal property located at 1855 Bayshore Drive, Haglewood, Flodda (“BAYSHORE
PROPERTY”), which at that time was owned in fee simple absolute by O'TOOLE,Beaugrand 2. O'Toole
Case # 2016. CA 6351 NC
6. After approximately one year of cohabitating at the BAYSHORE
PROPERTY the couple moved in to the property located at 616 Pinto Trail, Englewood,
Florida (‘PINTO TRAW.”), owned by BEAUGRAND in fee simple, and continued to so
cohabitate until they separated in the summer of 2016,
2% ‘The parties cohabitaced at PINTO TRAIL under an agreement whereby they
would equally divide the PINTO TRAIL housing expenses, including mortgage payments,
taxes, insurance and utilities. Living with them at PINTO TRAIL were the children of
BEAUGRAND, bom of a previous relationship.
8. In November, 2007, in consideration of the fact that the couple were in a
committed relationship (and had moved from O’TOOLE’s home and into PINTO 'T) RAIL),
BEAUGRAND induced O'TOOLE to execute a deed to the BAYSHORE PROPERTY as
a means of estate planning, whereby they held tile to the property as joint. tenants with
rights of survivorship. A true and correct copy of the deed to that effect ig attached hereto
and made a part hereof as Exhibit A,
9. BEAUGRAND also induced O'TOOLE to-execute a note and mortgage to
the BAYSHORE, PROPERTY by advising him (incorrectly) that this would allow: the
existing mortgage 10 be refinanced on more favorable terms. BEAUGRAND. further
advised that she would have to appear on the title to the property in order for her t0 also
execute the note and mortgage on the BAYSHORE PROPERTY.
10. BEAUGRAND. contributed no funds towards the acquisition of any interest
in the BAYSHORE PROPERTY. and contributed litte, if any, towards payment of
mortgage loan payments, taxes, insurance, and maintenance for this property.
11, In December, 2015, O'TOOLE. purchased property located at 880 East 1°
Street, Englewood, Florida (“880 PROPERTY”), a result of which BEAUGRAND received
a seal estate commission, BEAUGRAND contributed no funds towards the acquisition of
this property and contributed litle, if any, towards payment of loan paymenits, taxes,
insurance, and maintenance for this property.
5)PopeBeaugrand v.. O'Toole
Case # 2016 CA 6351 NC
12. In January, 2016 (approximately six months before the parties separated)
BEAUGRAND induced O'TOOLE to execute a deed to the 880 PROPERTY purportedly
also as a means of estate planning, whereby they would hold dde to the property as joint
tenants with rights of survivorship, as was the case with O’TOOLE’s BAYSHORE
PROPERTY. A true and correct copy of the handweitten quit claim deed presumably to
that effect is attached hereto and made a part hereof as Exhibit B.
13, The deed to the 880 PROPERTY described in. patagraph 12 sypru, was
prepared without the assistance of counsel, or by a qualified title agent. The deed, signed
shortly after the closing (where BEAUGRAND teceived a commission} fails to contain
words to the effect that title was to be held jointly with rights of survivorship.
14, In the summer of 2012, O'TOOLE purchased commercial space in’ the
Gallery. Plaza, located at Unit 5, 3502 North Access Road, Englewood (“GALLERY
PLAZA
to O'TOOLE for the purchase ($50,000) under terms whereby O'TOOLE would make
‘or his computer repair business, KLAUSE GOERKE loaned the funds
interest-only payments and pay taxes.on the property,
15, In June, 2012, rather than having a properly prepared note and mortgage
executed, KLAUSE GOERKE and HRIDRUN RIEDNER took title to the GALLERY
PLAZA UNIT jointly in their names with no mention of O'TOOLE,
16, O'TOOLE continued to make loan and other payments for the GALLERY
PLAZA UNIT until, as more fully appears infzs, BEAUGRAND, pursuant to asserted rights
under a power(s) of attorney, evicted him and his business from the premises,
1%. During their relationship, the parties jointy acquired other property,
including, inter ala, a stallion (“Tosso”). BEAUGRAND also has possession of other
property belonging to O'TOOLE that she has declined to return to him, including, inter alia,
a boat trailer, art, and personal books and records.
38. All conditions precedent to this action have been satisfied or waived.Beangrand 2. O'Toole
Case # 2016 CA 6351. NC
19. O'TOOLE has tetained undersigned counsel to represent him in this cause
and to compensate him in reasonable fashion for his efforts.
COUNT I: CLAIMS RELATED TO BAYSHORE PROPERTY
20. O'TOOLE realleges and incorporates by reference as if fully set forth herein,
the preceding paragraphs numbered 1 through 19.
21, As is more fully ser forth herein and otherwise, BEAUGRAND induced
O'TOOLE to execute a deed to the BAYSHORE PROPERTY that purports to grant to her
an interest in the property as a joint tenant with rights two take sole title to the property in the
event O'TOOLE predeceases her, O'TOOLE, was induced to enter into this arrangement
as 2 means of estate planning (the parties were never legally married t one another) and on
the pretense of BEAUGRAND's enduring love and affection for him.
22, BEAUGRAND made no financial contribution towatds the BAYSHORE
PROPERTY cither at the time she induced O'TOOLE to place her in title to the property
nor in. the years subsequent thereto, during which O'TOOLE made payments for the
morigage, taxes, insurance and maintenance of the property.
23, BEAUGRAND has no present interest in the property except as a
contingent beneficiary upon the death of O'TOOLE (should he predecease her) the basis
for which no longer exists (in that they are no longer in a commited relationship),
24, BEAUGRAND obtained any: interest she has in the BAYSHORE
PROPERTY under the promise and expectation that she would remain in a committed
relationship with O'TOOLE until the first of them were to pass and would share equally in
the expense and management of it; O'TOOLE executed the deed in reliance upon those
express and implied promises; a confidential relationship existed at the time between
BEAUGRAND and O'TOOLE; and BEAUGRAND would be unjustly enriched were she
to succeed in depriving O'TOOLE of ownership of this property.
25. . By operation of law and otherwise the interest of BEAUGRAND in
O'TOOLE’ property is by way of a constructive of resulting crust,
TPage.Beangrand v. O'Toole
Case # 2016 CA 6351 NC
26, The equities conceming the BAYSHORE PROPERTY militate in favor of
recognizing the interests of O'TOOLE in the same to the exclusion of BEAUGRAND.
WHEREFORE, counterplaintiff O'TOOLH prays that the Court enter a
declaratory judgment finding the equities to be in favor of O'TOOLE and against
BEAUGRAND concefning any tights or interest she may otherwise have in and to the
BAYSHORE PROPERTY; finding that her interests are in the nature of a constructive or
resulting trust; ordering a reformation of the deed to reflect the true interests of the parties
in this property; awarding to him a special equity in any and all proceeds upon the forced
sale of the property; and that the Court grant such additional and further relief provided by
Jaw of in equity, and deemd appropriate in the premises.
COUNT I: CLAIMS RELATED TO PINTO ‘TRAIL
27, O'TOOLE realleges and incorporates by reference as if fully set forth herein,
the preceding paragraphs numbered 1 through 19,
28. As set forth herein and otherwise, BEAUGRAND and O’TOOLE entered
into a committed relationship outside of marriage, but cohabitated as such for a substantial
period of time, duriag which their finances became entangled,
29, Specifically, the parties moved out of O'TOOLE’s residence (BAYSHORE
PROPERTY) and into PINTO TRAIL under an ‘arrangement whereby they would equally
share the PINTO TRAIL housing expenses, which O'TOOLE would otherwise not incur
had they remained at his own residence.
30. During the dime the parties cohabitated ar PINTO TRAIL, BEAUGRAND
consistently failed to remit payment for her share of the housing expenses, while O'TOOLE
just as consistently kept current for both parties’ share of those expenses, and also
contributed funds and labor for repairs and maintenance of the property.
31, BEAUGRAND induced O'TOOLE to deed interests in his property to her
in consideration of their continued. relationship with one another, but failed and tefused to
81PogeBeaugrand v. O'Toole
Case # 2616 CA 6351 NC
grat any interest in PINTO TRAIL to him, even while accepting the benefits of funds and
labor he expended to allow her to maintain possession and title to her property.
32, BEAUGRAND was accordingly unjustly enriched by the fands and labor
expended by O'TOOLE for her benefit and that of PINTO TRAIL in violation of the
agreement between the parties that she would bear one-half of those expenses and labor.
33, In fashioning relief as between the partics, either at law o.in equity,
O'TOO:!
BEAUGRAND and het property, or judgment for money damages equal to the amount so
is entitled to a credit for the funds and labor expended by him to the benefit of
expended by him during the course of their relationship and cohabitation.
WHEREFORE, counierplaintiff O'TOOLE prays that the Court enter 2
declaratory judgment finding the equities to be in favor of O'TOOLE. and ‘against
BEAUGRAND concerning the funds expended by him for her benefit in connection with
the PINTO PROPERTY; finding that he ix entided to a special equity, credit of equitable
lien concerning the same; awarding to him judgment for the. unreimbursed amounts
expended by him either by way of damages or in quantum merult; and that the Court grant
such additional and further relief deemd appropriate in the premises.
COUNT HE CLAIMS RELATED TO THE 880 PROPERTY
34, O'TOOLE sealleges and incorporates by reference as if fully set forth herein,
the preceding paragraphs numbered 1 through 19.
35. As is more fully set forth herein and. otherwise, BEAUGRAND induced
O'TOOLE to execute a deed to his 880 PROPERTY that purports to grant to her an
interest in-the property as a joint tenant, O’TOOLE was induced to enter into this
arrangement as.a means of estate planning (the parties were never legally matried to one
another) and on the pretense of BEAUGRAND’s enduring love and affection for him.
36. BEAUGRAND. made no financial contribution towards the 880
PROPERTY either at the time she induced O'TOOLE to place her in title to the propertyBeangrand 1, O'Teole
Case #2016 CA 6351 NC
nor in the years subsequent thereto, during which O'TOOLE made payments for the
morigage, taxes, insurance and maintence of the property.
37, Despite the fact that the deed to the property was inartfully drawn,
BEAUGRAND has no present interest in the propery except as a contingent beneficiary
upon the death of O'TOOLE (should he predecease her) the basis for which no longer
exists (in that they are no longer ina commited relationship).
38, BEAUGRAND obtained any interest she has in the 880 PROPERTY under
the promise and expectation thar she would remain in a commited relationship with
O'TOOLE until the first of them were to pass and would share equally in the expense and
management of it; O'TOOLE executed the deed in reliance upon those express and implied
promises; a confidential relationship existed at the time between BEAUGRAND. and
O'TOOLE; and BEAUGRAND would be unjustly enriched were she to suéceed in
depriving O'TOOLE of ownership of this property.
39. By operation of law and otherwise the interest of BEAUGRAND in
OPTOOLE’S propetyy is by way of a constructive of resulting ttust.
40, The equities concerning the 880 PROPERTY militate in favor of recognizing
the interests of O'TOOLE in the same to the exclusion of BEAUGRAND,
WHEREFORE, counterplaintiff O'TOOLE prays that. the Court enter a
declaratory judgment finding the equities to be in favor of O'TOOLE and against
BEAUGRAND concerning any rights or interest she may otherwise have in and to the 880
PROPERTY; finding that her interests are in the nature of a constructive or resulting trust;
ordering a reformation of the deed to reflect the true interests of the parties in this property;
awarding to him a special equity in.any and all proceeds upon the forced sale of the property;
and that the Court grant such additional and further selief provided by law or in equity, and
deemed appropriate in the premises.Beaugrand v. O'Toole
Case # 2016 CA 6331 NC
COUNT IV; CLAIMS RELATED TO THE GALLERY PLAZA UNIT
41, O'TOOLE tealleges and incorporates by reference as if fully set forth herein,
the preceding paragraphs numbered 1 through 19.
42, Asis more fully set forth herein and otherwise, O°YOOLE entered into an
agreement with KLAUSE GOERKE whereby the later loaned the sum of $50,000 towards
the acquisition of the GALLERY PLAZA UNIT, where O'TOOLE, in relainace on this
arranagement, relocated his computer repair business.
43, Title to the GALLERY PLAZA UNIT became vested in KLAUSE
GOERKE and HEIDRUN RIEDNER (BEAUGRAND’s parents) to the exclusion of
O'TOOLE and without a properly recorded mortgage reflecting the ruc arrangements
between the parties concerning the loan made by GOERKE to O'TOOLE.
44, Pursuant to a-course of dealing between GOERKE and O'TOOLE, the later
continued to make Joan payments and other payments.in connection with the GALLERY
PLAZA UNIT in feliance upon the validity of the agreement berween them.
45, Subsequent to the separation of BEAUGRAND and O'TOOLE, the former,
acting on behalf of her parents pursuant to a power(s) of attorney, terminated the agreement
as between GOERKE and O'TOOLE, falsely alleged that the parties in fact had entered
into a “lease” of the GALLERY PLAZA UNIT, and forced the ejectment of O'TOOLE
and his business from the premises on extremely short notice.
46. The termination of the agreement between GOERKE and O’TOOLE
caused direct and consequential damages to O'TOOLE, was inequitable, and caused unjust
enrichment to BEAUGRAND and her parents.
47, In fashioning relief as between the parties, either at law or in equity,
O'TOOLE is entitled to a credit for the losses he sustained as'a result of the wrongful
termination of the agreement as between GOERKE and O'TOOLE, or judgment for
money damages equal to the amount of that loss,
WivegeBeangrand v,. O'Toole
Case # 2016 CA 6351 NC
WHEREFORE, counterplaintiff ©/TOOLE prays that the Court. eater a
declaratory judgment finding the equities to be in favor of O'TOOLE and against
BEAUGRAND in connection with the GALLERY PLAZA UNIT; finding that he is
entitled to a special equity, credit or equitable lien concerning the same; awarding. to him
judgment for his losses concerning the termination of the loan agreement and wrongful
sjectment either as a judgment for damages or by way of promissory estoppel; and that the
Court grant such additional and further relief deemed appropriate in the premises,
COUNT V; CLAIMS RELATED TO PERSONAL PROPERTY
48. O'TOOLE realleges and incorporates by reference as if fully ser forth hetcin,
the preceding paragraphs numbered 1 through 19
49. As more fully set forth herein and otherwise, the parties dbtained joint tide
to, énter alia, a stallion (“Tosso”) and other property.
50. Pursuant to Florida Statutes (64.091, in addition to real property, personalty
is also subject to the partition process.
51, BEAUGRAND also has possession of other property belonging to
O'TOOLE that she has declined to return to him, including, inver alia, a boat trailer, att, and
personal books and records,
52, O'TOOLE is entitled be reimbursed for the amounts paid by him towards
the acquisition of jointly owned property or for the sale of the same with the proceeds
equitably divided between the parties, and for the return of the items of personal property
belonging to him still in the possession of BEAUGRAND.
WHEREFORE, counterplaintiff O'TOOLE. prays that the Court enter a
declaratory judgment equitably dividing personal property jointly owned by the parties and
for the partition and sale of the same, if necessary; otdeting BEAUGRAND to serum
personal property in her possession and control that belongs to O'TOOLE; ordering .an
accounting of the personal property jointly owned or in which each has a special claim of
RiPsgeBeangrand v. Q”Foole
Case # 2016 CA 6151 NC
right or equity; and that the Court grant such additional and further relief provided by law or
in equity, and deemed appropriate in the premises.
1 DO HEREBY CERTIFY that a tue and correct copy of the foregoing was
caused to be served by electronic mail on May 14, 2017, apon Steele T, Williams, Esquire,
STEELE T WILLIAMS, PA, aniomney for * phat Pineapple Place, 1381 McAnsh Square,
Sarasota, Florida, 34236; Stecte'T Wi ame “
Respectfully submitted,
BRET SHAWN CLARK, PA
PO BOX 1133
Englewood, Florida 34295
Tel: (941) 404-4704
BretClark@ WebNetLawyver.Com
[Bret Clark
Bret Clark, Esquire FB #384038
Attomey for Defendant/Counterplaintiff
Robert O'Toole
{EXHIBITS ON FOLLOWING PAGES]Beaugrand v. O'Toole
Case # 2016 CA 6351 NC
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EXHIBIT ABeaugrand v, OToale
Cast # 2016 CA 6351 NC
CHARLOTTE COUNTY CLERK OF CIRCUIT COURT OR BOOK: 4046, PGS: 2082 PAGES 1 OF 2
INSTR # 2409966 Doe Type: D, Recorded: U2YIOLG at 11:14 ANT
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land, situate, lying and being im the County of Cwiclole _, State of
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bshoof of the said second party forever.
In Whines Whercof, the said first party has signed and sealed these presents the day and year fist
above written,
EXHIBIT B
ISiPupeBeangrand vO Toole
Case # 2016 CA 6331 NC
OR BOK: 4046, PAGE NUMBER: 2003 INSTRY 2409906 PAGE: 2 OF 2
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Filing # 89497405 E-Filed 05/14/2019 02:03:52 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION IRIS BEAUGRAND, individually and as POA for Heidrun Riedner, Plaintiff, v. CASE NO: 2017 CA 181 ROBERT O’TOOLE, Defendant. / PLAINTIFF’S MOTION IN LIMINE AND/OR MOTION TO DETERMINE WHAT JUSTICIABLE ISSUES / CLAIMS OF DEFENDANT EXIST Plaintiff, Iris Beaugrand, individually and as POA for Heidrun Riedner, files this motion and states: 1. The parties stipulated in writing (See attached Exhibit A incorporated herein by this reference) and on the record at trial in the Sarasota case (defined hereinafter) that “the parties will resolve and try all issues they have between them” in the court proceeding in the Sarasota Court in the Twelfth Judicial Circuit Court case number 2016 CA 6351, Iris Beaugrand v. Robert O’ Toole, (Referenced herein as the “Sarasota case.”) iro All issues between the parties were decided, see the final judgment of the Sarasota case (which is attached as Exhibit B and incorporated herein by this reference.), The Sarasota case was affirmed in all respects by the Second District Court of Appeal in case number 2D18-1935, Robert O’ Toole, appellant y. Iris Beaugrand, appellee. The clairns and issues asserted in the counterclaim by Defendant are barred in this matter as a result of res judicata, collateral estoppel and issue preclusion. 3. In Bryan v. Fernald, 211 $0.3d 333, 335, the Second District Coutt of Appeal stated: “Under the doctrine of res judicata, 1j/Page[a] judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. Fla. Dep't of Transp. v. Juliano , 801 So.2d 101, 105 (Fla. 2001) (quoting Kimbrell v. Paige , 448 So.2d 1009, 1012 (Fla. 1984) ). Thus, res judicata applies when the following four identities are present: "(1) identity of the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action; and (4) identity of the quality of the persons for or against whom the claim is made.” Topps v. State , 865 So.2d 1253, 1255 (Fla. 2004). This court reviews de novo the trial court's application of res judicata. See Campbell v, State , 906 So.2d 293, 295 (Fla. 2d DCA 2004).” 4, Whether causes of action in a subsequent lawsuit between the same parties are the same, depends on whether the facts or evidence necessary to maintain the suit are the same as the prior lawsuit. Bryan at 335-336 (citing Albrecht v. State, 444 So.2d 8, 12 (Fla. 1984). See also U.S. Project Memt., Inc. Pare Royale E. Dev., Inc., 861 So.2d 74, 76 (Fla. 4 DCA 2003). 5. As stated in Aronowitz v. Home Diagnostics, Inc., Fla. 4" DCA 2015), if the causes of action are the same, then res judicata would bar “every other matter which the parties might have litigated and had determined, within the issues as [framed] by the pleadings or as incident to or essentially connected with the subject matter’ of the first litigation." Zikofsky v. Mktg. 10, Inc., 904 So. 2d 520, 523 (Fla. 4th DCA 2005) (quoting Hav v. Salisbury, 109 So. 617, 621 (1926) and Tyson v. Viacom, Inc., 890 So. 2d 1205, 1214 (Fla. 4th DCA 2005) (Gross, J., concurring) (quotation marks omitted).” 6. Even if the causes of action are not the same, collateral estoppel would apply to any issues “that were actually litigated and decided by the former suit.” Zikofsky 902 So.3d 520, 525 (Fla. 4% DCA 2005). —2|Page7. As to Plaintiff's complaint for partition of jointly owned property of the parties in Sarasota County, ie. 1855 Bayshore Dr, Englewood, FL 34223, the final judgment (Exhibit “B”) is res judicata as to issues asserted herein in regards to this property including but not limited to: what the respective interests of the parties are in the property and what each party contributed to the property. Further, Defendant Robert O’Toole’s claim for a special equity in this property was denied in the Sarasota case. 8. In light of Plaintiff’s complaint for partition herein of jointly owned property of the parties in Charlotte County, ie. 808 E. First Street, Englewood, FL 34223 (the “Charlotte property”), whether partition relief should be granted, what the respective interests of the parties are in this property, and what their proportionate share in the proceeds should be has already been decided in the Sarasota case. 9. Further, in light of Defendant’s extensive counterclaim filed in the Sarasota case (see attached Exhibit “C”) and the disposition of that counterclaim, see the final judgment of the Sarasota case at Exhibit “B,” claims associated with the Charlotte property and the Pinto property have already been decided. 10. In sum, all equitable and damage claims of Defendant Robert O’ Toole against Plaintiff Iris Beaugrand have been decided in the Sarasota case. WHEREFORE Iris Beaugrand seeks an order declaring what claims and issues pertaining to the properties identified in the pleadings of the parties have already been decided and for an order declaring what issues / claims of Defendant still exist which are being tried in this matter. 3/PageCERTIFICATE OF SERVICE THEREBY CERTIFY that a true and correct copy of the foregoing has been sent via Email to Bret Clark, Esq. attorney for Robert O’Toole on this 14th day of May, 2019. Steele T. Williams, P.A. Pineapple Place 1381 McAnsh Square Sarasota, FL 34236-5620 Ph: (941)378-1800 Email: Steele TWilliams@comeast.net Website: Steele Williams.com /s/ Steele T. Williams FBN: 079995 4\PageEXHIBIT AIN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CIVIL ACTION TRIS BEAUGRAND, individually and as POA for Heidrun Riedner, Plaintiff, ve CASE NO: 17000181 CA ROBERT O’TOOLE, Defendant. initial nen STIPULATION COMES NOW the parties to this matter who hereby stipulate to the following: i. The parties were a couple for many years. 2, Asa part of their relationship they became joint title owners of property. One property is located in Charlotte County, the other property is located in Sarasota County. we Plaintiff has brought a partition and accounting complaint in this court to address the Jointly title real property in Charlotte County, and a partition and accounting complaint in Sarasota County to address the jointly title real property in Sarasota County. 4, The parties have another case in the Twelfth Judicial Circuit Court, to-wit: Case Number: 2016 CA 6351 NC (the Sarasota case) which concerns the Sarasota County real property the parties jointly own. 5. The Sarasota case is set for trial during December 2017, and the parties expect the issues between them to resolve the title issues and claims involved in this case at such time. 6. For economies of the parties and the judiciary, the parties will resolve and try all issues they have between them in the Sarasota case and will request the ruling the court in Sarasota County to be controlling as to the disposition of all matters at issue in this case. Exhibit A - Or 1lPage7. This matter should be stayed until settlement or resolution of the Sarasota case. 8. Upon resolution of the Sarasota case, the parties, either of them, will report by motion to this Court what the resolution of the Sarasota case was and what the disposition of this case should be as a result. Attorney for Plaintiff Attorney for Defendant _____ Steele T, Williams (Bret Clark STEELE T. WILLIAMS, ESQ. BRET CLARK, ESQUIRE Florida Bar Number 079995 Florida Bar Number 384038 STEELE T. WILLIAMS, PA BRET SHAWN CLARK, PA 1381 McAnsh Square PO BOX 1133 Sarasota, Florida 34236 Englewood, Florida 34295 (941) 378-1800 (941) 404-4704 SteeleT William @ comcast.net BretClark @ WebNetLawyer.Com Date signed: August 15, 2017 Date signed: August 16, 2017 ‘21PageEXHIBIT B¥ CASE NO: 2016 CA 6351 ROBERT O°TOOLE, Defeadant. i RINAL JUDGMENT THIS CAUSE came to be tried on the causes of action asserted by both parties, including based on the stipulation of the parties all claims the pertios assert in the Twentieth Judicial Florida Circuit ‘Court Case: 2017 CA 181, io Charlotte County, Florida, and on the evidence presented. IT IS ADJUDGED thar 1. Plaintiff iris Beangrend, whose address is 616 Pinto Trail, Englewood, FL 34223 and defendant Robert O'Toole each own an undivided interest as tenants in common in the real property in Sarasota County, Florida described as: Parcel description: Lot $53 Gardens Unit 5, as. ‘thereof, recorded ia Pat Book 4, Page 72, of the Puie Reoods of Sarasota Conwy, Floss Mailing address: 1855 Bayshore Dr, Englewood, FL 34223 ‘This propesty is indivisible and cannot be partitioned in kind and is referred to herein as the “Sarasota property.” 2. Within 45 Plaintiff shall sobmit a separate order wherein the the Saresots property will be reed fbn ies sale socondiog to Flori law with the procends of such male ale being i tend seco mertgages, second the cose of much sale including rete ne and thereafter the remaining sums ‘atomey h are to be equally distributed to the parties. ™ " 3. Dh tiMaaot ce: recommends that the Circuit Court of Charlotte County order aa follows: a) eet eee ees aaa Rots Toate cath ooh waded ioe Senants in common in the real property in Charlotte County, Florida ‘Lot | and 2, Block B, Rock Creek Pari, according to the plat thereof as recorded in Leet Maen ret eet " Mailing address: 808 B. First Street, Englewood, FL 34223 EB " ik it 6 : ijPage OTe Filed 05/02/2018 01:03 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLft b) This property is indivisible and cannot be partitioned in kind and is referred to herein as the ? “Charlotte property.” cane of Circuit Court Case: 2017 CA iain Gusione Gonna The is to be sold st a judi law with the a) cots ofan a bene Hs odilal se scoonding to Frida ©) Within 4S days ater enry, Plaintiff hl this judgment with the Charitte Conuty court © ae oft prt ctf Tweet od 6. As to Defendant's counterclaims, the parties stipulated that Count IV of the counterclaim was resolved on the record at trial, and as to Counts J, Ul, 111 end V of the counterclaim of Defendant judgment is entered against Robert O'Toole and in favor of Iris Beaugrand. 7. The court reserves jurisdiction to eatforce this judgment, to award attomtey fees and to tux costs, AND in Chambers in SARASOTA County, Flvida, this Oday of ao comme ANDREA MCHUGH ce: Sueele T. Williams, Eeq,, attomey for Plaintiff ‘Brot Clarke, Esp, attorney for Defendant 2)Page Filed 05/02/2018 01:03 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLEXHIBIT CFiling # 56828536 E-Filed 05/23/2017 04:36:47 PM IN THE 12"! CIRCUIT COURT IN AND FOR SARASOTA COUNTY, FLORIDA Case No: 2016 CA 006351 NC TRIS BEAUGRAND, Plaintiff we DEFENDANT BOB O°TOOLE'S ANSWER, AFFIRMATIVE DEFENSES, ROBERT O'TOOLE, AND COUNTER-CLAIM Defendant, , Defendant ROBERT O'TOOLE, by and through undersigned counsel, answers the complaint in this action as follows: ANSWER 1. The allegations contained in paragraph 1 of the complaint are admitted for jurisdictional purposes only. 2. The allegations contained in paragraphs 2, 3, 4 and 13 of the complaint are admitted, 3. The allegations contained in paragraphs 5, 7, 8, 9, 10 and 12 of the complaint are denied and strict proof thercof is hereby demanded. 4. With respect to. the allegations contained in paragraph 6 of the complaint defendant admits that counsel for plaintiff issued a letter to him making certain demands concerning the disposition of the property that is the subject of this action (@and another property described dafa at paragraph 11 of the counterclaim) and that litigation against him would commence should he fail to adhere to these demands. Remainder denied. 5. With respect to the allegations contained in paragraph 11 of the complaint defendant admits that the property that is the subject of this action is a rental property the income from which, in part, funds the costs to maintain it. Remainder denied, Pose UiPege Exhibit (7. Filed. 05/23/2017 05:07 PM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLBeangrand v, O'Toole Case #2016 CA NE 6. To the extent allegations are deemed to exist within the wherefore clause or piayer for relief of the complaint, or ate otherwise not mentioned in the. preceding paragraphs or otherwise herein, those allegations are denied, AFFIRMATIVE DEFENSES 7, Asan affirmative defense, defendant asserts that plaintiff has failed to attach the instruments which form the basis of ber lawsuit against defendant, to wit: the deed, note and mortgage conceming. the property that is the subject matter of this action, in contravention of Fla,R.Civ.P. 1,130(a). 8 As an affirmative defense, defendant further asserts that the complaint fails to state a claim for which telief can be granted in thar plaintiff, in her demand letter that preceded this action, claimed the existence of a partnership with respect to the property that is the subject matter of this action, but there are insufficient allegations in the complaint to support 2 cause of action for disassociation, dissolution and winding up of the affairs of the purported partnership, or an accounting or other relief, as required by Florida Statute §620.81002 et, seg. Revised Uniform Partnership Act of 1995). 9. As an affirmative defense, defendant further asserts that the partics are jointly liable under a note secured by a mortgage that encumbers the property that is the subject of this action and the forced, premature sale of the property ptior to maturity of the fote is contrary to the best interests of defendant, and would constitute wrongful disassociation of defendant as plaintiff's purported partner for this particular undertaking, in violation of Florida Statute §620.8602(b). 10. As an affirmative defense, defendant further asserts that the complaint fails to state a-claim upon which relief can be granted to force the sale of the property that is the subject of this action; for an. accounting; and for payment of plaintiff's legal fess in that-the complaint does not allege facts sufficient to establish a right to do so. 11, As an affirmative defense, defendant further asserts that the’ property in question is not occupied by either party, is an invesement property that generates rental income, and is not a non-divisible property within the meaning of Chapter 64, Florida 21PageBeangrand 2. O'Toole Case # 2016 CA 6351 NC Stanutes, avr has plaintiff established a proper basis or compelling reason to force the sale of the property to the detriment of defendant, who is the rightful owner of it, 12, As an affiemative defense, defendant further asserts: that defendant owned the property in fee simple prior to his zelationship with plaintiff, deediag the property to himself and ker with rights of survivorship as a means of estate planning (the parties were nevet legally married to one another) with no financial contribution by plaintiff whatsoevet. She consequently has no present interest in the property except as a contingent beneficiary upon the death of defendant (should he predecease her). 13. As an affirmative. defense, defendant further asserts that plaintiff is not entitled to seek equitable relief by failing herself to do equity, is estopped from seeking such relief, or otherwise may not seck such relief by inducing defendant to place her on the title to his property on the pretense of her love and affection for hima, inducing him by the same means to pay all costs associated with maintaining this property, without any contribution by plaintiff towards that end, and then by seeking in this action to deprive defendant of his rightful interest in the property; force the sale of the property; and cause unnecessary oss and expense, all to the detriment of defendant. 14, As an. affirmative defense, defendant further asserts that it would. otherwise be inequitable for plaintiff to be granted the telief demanded in the complaint 15. As an affirmative defense, or by way of set-off or counterclaim, defendant further asserts that plaintiff has made no financial contribution to the acquisition of the property that is the subject of this action, has made no contribution towards the costs of maintaining the property, has made no conitibution towards the management of the Property, and therofore has no right to disbursement of a portion of the proceeds. over and above her contribution, if any, towards the costs and management of the property. 16. Defendant has retained undersigned counsel to represent him in this cause and to compensate him in reasonable fashion for his efforts. 17. To the extent these affirmative defenses or answers are deemed to constitute a set-off or counterclaim, or vice versa, defendant prays they be so treated. sieBeangrand v. O'Toole Case # 2016 CA 6351 NE WHEREFORE, defendant ROBERT O'TOOLE prays that the Court deny all relief to plaintiff as against him, or such portion of the relief deemed just and appropriate; enter judgment in his favor and against plaintiff, either partially or wholly; award to him an amount by way of set-off or by way of counterclaim in bis favor and against plaintiff for the amounts justly due to him; award to him attorney fees and costs if appropriate, and otherwise as provided by law; and that the Court grant such additional and further relief provided by law and deemed appropriate in the premises. COUNTERCLAIM Defendant/Counterplaintiff ROBERT. O'TOOLE, sues plaintiff/counterdefendant IRIS BEAUGRAND, individually and as attorney in fact under power(s) of attorney. for KLAUSE GOERKE and HEIDRUN RIEDNER, and alleges as follows: 1 This is an action for equitable and other appropriate relief concerning real and personal property tided jointly. or individually, as the case may be, wherein the ¢mount in controversy exceeds $15,000, exclusive of interests and costs. 2. Counterplaintiff ROBERT O'TOOLE (“O'TOOLE is the owner of record of certain real and personal property, and has an interest in. such properties not of record, as more fully appears herein. 3. Counterdefendant IRIS BEAUGRAND (BEAUGRAND") is the owner of record of certain real and personal property, and, as more fully appears herein, has asserted tights and an interest in others on behalf of her parents, KLAUSE GOERKE and HEIDRUN RIEDNER, pursuant to a power(s) of attomey to act on their behalf. 4, Atall times material hereto BEAUGRAND was and is-a duly licensed and practicing Realtor in the State of Florida and has superior knowledge and experience concerning real estate transactions as compared to O'TOOLE. 5 Sometime in approximately 2005 BEAUGRAND and O°TOOLE began a committed relationship with. one another and shortly thereafter began to cohabitate in the seal property located at 1855 Bayshore Drive, Haglewood, Flodda (“BAYSHORE PROPERTY”), which at that time was owned in fee simple absolute by O'TOOLE,Beaugrand 2. O'Toole Case # 2016. CA 6351 NC 6. After approximately one year of cohabitating at the BAYSHORE PROPERTY the couple moved in to the property located at 616 Pinto Trail, Englewood, Florida (‘PINTO TRAW.”), owned by BEAUGRAND in fee simple, and continued to so cohabitate until they separated in the summer of 2016, 2% ‘The parties cohabitaced at PINTO TRAIL under an agreement whereby they would equally divide the PINTO TRAIL housing expenses, including mortgage payments, taxes, insurance and utilities. Living with them at PINTO TRAIL were the children of BEAUGRAND, bom of a previous relationship. 8. In November, 2007, in consideration of the fact that the couple were in a committed relationship (and had moved from O’TOOLE’s home and into PINTO 'T) RAIL), BEAUGRAND induced O'TOOLE to execute a deed to the BAYSHORE PROPERTY as a means of estate planning, whereby they held tile to the property as joint. tenants with rights of survivorship. A true and correct copy of the deed to that effect ig attached hereto and made a part hereof as Exhibit A, 9. BEAUGRAND also induced O'TOOLE to-execute a note and mortgage to the BAYSHORE, PROPERTY by advising him (incorrectly) that this would allow: the existing mortgage 10 be refinanced on more favorable terms. BEAUGRAND. further advised that she would have to appear on the title to the property in order for her t0 also execute the note and mortgage on the BAYSHORE PROPERTY. 10. BEAUGRAND. contributed no funds towards the acquisition of any interest in the BAYSHORE PROPERTY. and contributed litte, if any, towards payment of mortgage loan payments, taxes, insurance, and maintenance for this property. 11, In December, 2015, O'TOOLE. purchased property located at 880 East 1° Street, Englewood, Florida (“880 PROPERTY”), a result of which BEAUGRAND received a seal estate commission, BEAUGRAND contributed no funds towards the acquisition of this property and contributed litle, if any, towards payment of loan paymenits, taxes, insurance, and maintenance for this property. 5)PopeBeaugrand v.. O'Toole Case # 2016 CA 6351 NC 12. In January, 2016 (approximately six months before the parties separated) BEAUGRAND induced O'TOOLE to execute a deed to the 880 PROPERTY purportedly also as a means of estate planning, whereby they would hold dde to the property as joint tenants with rights of survivorship, as was the case with O’TOOLE’s BAYSHORE PROPERTY. A true and correct copy of the handweitten quit claim deed presumably to that effect is attached hereto and made a part hereof as Exhibit B. 13, The deed to the 880 PROPERTY described in. patagraph 12 sypru, was prepared without the assistance of counsel, or by a qualified title agent. The deed, signed shortly after the closing (where BEAUGRAND teceived a commission} fails to contain words to the effect that title was to be held jointly with rights of survivorship. 14, In the summer of 2012, O'TOOLE purchased commercial space in’ the Gallery. Plaza, located at Unit 5, 3502 North Access Road, Englewood (“GALLERY PLAZA to O'TOOLE for the purchase ($50,000) under terms whereby O'TOOLE would make ‘or his computer repair business, KLAUSE GOERKE loaned the funds interest-only payments and pay taxes.on the property, 15, In June, 2012, rather than having a properly prepared note and mortgage executed, KLAUSE GOERKE and HRIDRUN RIEDNER took title to the GALLERY PLAZA UNIT jointly in their names with no mention of O'TOOLE, 16, O'TOOLE continued to make loan and other payments for the GALLERY PLAZA UNIT until, as more fully appears infzs, BEAUGRAND, pursuant to asserted rights under a power(s) of attorney, evicted him and his business from the premises, 1%. During their relationship, the parties jointy acquired other property, including, inter ala, a stallion (“Tosso”). BEAUGRAND also has possession of other property belonging to O'TOOLE that she has declined to return to him, including, inter alia, a boat trailer, art, and personal books and records. 38. All conditions precedent to this action have been satisfied or waived.Beangrand 2. O'Toole Case # 2016 CA 6351. NC 19. O'TOOLE has tetained undersigned counsel to represent him in this cause and to compensate him in reasonable fashion for his efforts. COUNT I: CLAIMS RELATED TO BAYSHORE PROPERTY 20. O'TOOLE realleges and incorporates by reference as if fully set forth herein, the preceding paragraphs numbered 1 through 19. 21, As is more fully ser forth herein and otherwise, BEAUGRAND induced O'TOOLE to execute a deed to the BAYSHORE PROPERTY that purports to grant to her an interest in the property as a joint tenant with rights two take sole title to the property in the event O'TOOLE predeceases her, O'TOOLE, was induced to enter into this arrangement as 2 means of estate planning (the parties were never legally married t one another) and on the pretense of BEAUGRAND's enduring love and affection for him. 22, BEAUGRAND made no financial contribution towatds the BAYSHORE PROPERTY cither at the time she induced O'TOOLE to place her in title to the property nor in. the years subsequent thereto, during which O'TOOLE made payments for the morigage, taxes, insurance and maintenance of the property. 23, BEAUGRAND has no present interest in the property except as a contingent beneficiary upon the death of O'TOOLE (should he predecease her) the basis for which no longer exists (in that they are no longer in a commited relationship), 24, BEAUGRAND obtained any: interest she has in the BAYSHORE PROPERTY under the promise and expectation that she would remain in a committed relationship with O'TOOLE until the first of them were to pass and would share equally in the expense and management of it; O'TOOLE executed the deed in reliance upon those express and implied promises; a confidential relationship existed at the time between BEAUGRAND and O'TOOLE; and BEAUGRAND would be unjustly enriched were she to succeed in depriving O'TOOLE of ownership of this property. 25. . By operation of law and otherwise the interest of BEAUGRAND in O'TOOLE’ property is by way of a constructive of resulting crust, TPage.Beangrand v. O'Toole Case # 2016 CA 6351 NC 26, The equities conceming the BAYSHORE PROPERTY militate in favor of recognizing the interests of O'TOOLE in the same to the exclusion of BEAUGRAND. WHEREFORE, counterplaintiff O'TOOLH prays that the Court enter a declaratory judgment finding the equities to be in favor of O'TOOLE and against BEAUGRAND concefning any tights or interest she may otherwise have in and to the BAYSHORE PROPERTY; finding that her interests are in the nature of a constructive or resulting trust; ordering a reformation of the deed to reflect the true interests of the parties in this property; awarding to him a special equity in any and all proceeds upon the forced sale of the property; and that the Court grant such additional and further relief provided by Jaw of in equity, and deemd appropriate in the premises. COUNT I: CLAIMS RELATED TO PINTO ‘TRAIL 27, O'TOOLE realleges and incorporates by reference as if fully set forth herein, the preceding paragraphs numbered 1 through 19, 28. As set forth herein and otherwise, BEAUGRAND and O’TOOLE entered into a committed relationship outside of marriage, but cohabitated as such for a substantial period of time, duriag which their finances became entangled, 29, Specifically, the parties moved out of O'TOOLE’s residence (BAYSHORE PROPERTY) and into PINTO TRAIL under an ‘arrangement whereby they would equally share the PINTO TRAIL housing expenses, which O'TOOLE would otherwise not incur had they remained at his own residence. 30. During the dime the parties cohabitated ar PINTO TRAIL, BEAUGRAND consistently failed to remit payment for her share of the housing expenses, while O'TOOLE just as consistently kept current for both parties’ share of those expenses, and also contributed funds and labor for repairs and maintenance of the property. 31, BEAUGRAND induced O'TOOLE to deed interests in his property to her in consideration of their continued. relationship with one another, but failed and tefused to 81PogeBeaugrand v. O'Toole Case # 2616 CA 6351 NC grat any interest in PINTO TRAIL to him, even while accepting the benefits of funds and labor he expended to allow her to maintain possession and title to her property. 32, BEAUGRAND was accordingly unjustly enriched by the fands and labor expended by O'TOOLE for her benefit and that of PINTO TRAIL in violation of the agreement between the parties that she would bear one-half of those expenses and labor. 33, In fashioning relief as between the partics, either at law o.in equity, O'TOO:! BEAUGRAND and het property, or judgment for money damages equal to the amount so is entitled to a credit for the funds and labor expended by him to the benefit of expended by him during the course of their relationship and cohabitation. WHEREFORE, counierplaintiff O'TOOLE prays that the Court enter 2 declaratory judgment finding the equities to be in favor of O'TOOLE. and ‘against BEAUGRAND concerning the funds expended by him for her benefit in connection with the PINTO PROPERTY; finding that he ix entided to a special equity, credit of equitable lien concerning the same; awarding to him judgment for the. unreimbursed amounts expended by him either by way of damages or in quantum merult; and that the Court grant such additional and further relief deemd appropriate in the premises. COUNT HE CLAIMS RELATED TO THE 880 PROPERTY 34, O'TOOLE sealleges and incorporates by reference as if fully set forth herein, the preceding paragraphs numbered 1 through 19. 35. As is more fully set forth herein and. otherwise, BEAUGRAND induced O'TOOLE to execute a deed to his 880 PROPERTY that purports to grant to her an interest in-the property as a joint tenant, O’TOOLE was induced to enter into this arrangement as.a means of estate planning (the parties were never legally matried to one another) and on the pretense of BEAUGRAND’s enduring love and affection for him. 36. BEAUGRAND. made no financial contribution towards the 880 PROPERTY either at the time she induced O'TOOLE to place her in title to the propertyBeangrand 1, O'Teole Case #2016 CA 6351 NC nor in the years subsequent thereto, during which O'TOOLE made payments for the morigage, taxes, insurance and maintence of the property. 37, Despite the fact that the deed to the property was inartfully drawn, BEAUGRAND has no present interest in the propery except as a contingent beneficiary upon the death of O'TOOLE (should he predecease her) the basis for which no longer exists (in that they are no longer ina commited relationship). 38, BEAUGRAND obtained any interest she has in the 880 PROPERTY under the promise and expectation thar she would remain in a commited relationship with O'TOOLE until the first of them were to pass and would share equally in the expense and management of it; O'TOOLE executed the deed in reliance upon those express and implied promises; a confidential relationship existed at the time between BEAUGRAND. and O'TOOLE; and BEAUGRAND would be unjustly enriched were she to suéceed in depriving O'TOOLE of ownership of this property. 39. By operation of law and otherwise the interest of BEAUGRAND in OPTOOLE’S propetyy is by way of a constructive of resulting ttust. 40, The equities concerning the 880 PROPERTY militate in favor of recognizing the interests of O'TOOLE in the same to the exclusion of BEAUGRAND, WHEREFORE, counterplaintiff O'TOOLE prays that. the Court enter a declaratory judgment finding the equities to be in favor of O'TOOLE and against BEAUGRAND concerning any rights or interest she may otherwise have in and to the 880 PROPERTY; finding that her interests are in the nature of a constructive or resulting trust; ordering a reformation of the deed to reflect the true interests of the parties in this property; awarding to him a special equity in.any and all proceeds upon the forced sale of the property; and that the Court grant such additional and further selief provided by law or in equity, and deemed appropriate in the premises.Beaugrand v. O'Toole Case # 2016 CA 6331 NC COUNT IV; CLAIMS RELATED TO THE GALLERY PLAZA UNIT 41, O'TOOLE tealleges and incorporates by reference as if fully set forth herein, the preceding paragraphs numbered 1 through 19. 42, Asis more fully set forth herein and otherwise, O°YOOLE entered into an agreement with KLAUSE GOERKE whereby the later loaned the sum of $50,000 towards the acquisition of the GALLERY PLAZA UNIT, where O'TOOLE, in relainace on this arranagement, relocated his computer repair business. 43, Title to the GALLERY PLAZA UNIT became vested in KLAUSE GOERKE and HEIDRUN RIEDNER (BEAUGRAND’s parents) to the exclusion of O'TOOLE and without a properly recorded mortgage reflecting the ruc arrangements between the parties concerning the loan made by GOERKE to O'TOOLE. 44, Pursuant to a-course of dealing between GOERKE and O'TOOLE, the later continued to make Joan payments and other payments.in connection with the GALLERY PLAZA UNIT in feliance upon the validity of the agreement berween them. 45, Subsequent to the separation of BEAUGRAND and O'TOOLE, the former, acting on behalf of her parents pursuant to a power(s) of attorney, terminated the agreement as between GOERKE and O'TOOLE, falsely alleged that the parties in fact had entered into a “lease” of the GALLERY PLAZA UNIT, and forced the ejectment of O'TOOLE and his business from the premises on extremely short notice. 46. The termination of the agreement between GOERKE and O’TOOLE caused direct and consequential damages to O'TOOLE, was inequitable, and caused unjust enrichment to BEAUGRAND and her parents. 47, In fashioning relief as between the parties, either at law or in equity, O'TOOLE is entitled to a credit for the losses he sustained as'a result of the wrongful termination of the agreement as between GOERKE and O'TOOLE, or judgment for money damages equal to the amount of that loss, WivegeBeangrand v,. O'Toole Case # 2016 CA 6351 NC WHEREFORE, counterplaintiff ©/TOOLE prays that the Court. eater a declaratory judgment finding the equities to be in favor of O'TOOLE and against BEAUGRAND in connection with the GALLERY PLAZA UNIT; finding that he is entitled to a special equity, credit or equitable lien concerning the same; awarding. to him judgment for his losses concerning the termination of the loan agreement and wrongful sjectment either as a judgment for damages or by way of promissory estoppel; and that the Court grant such additional and further relief deemed appropriate in the premises, COUNT V; CLAIMS RELATED TO PERSONAL PROPERTY 48. O'TOOLE realleges and incorporates by reference as if fully ser forth hetcin, the preceding paragraphs numbered 1 through 19 49. As more fully set forth herein and otherwise, the parties dbtained joint tide to, énter alia, a stallion (“Tosso”) and other property. 50. Pursuant to Florida Statutes (64.091, in addition to real property, personalty is also subject to the partition process. 51, BEAUGRAND also has possession of other property belonging to O'TOOLE that she has declined to return to him, including, inver alia, a boat trailer, att, and personal books and records, 52, O'TOOLE is entitled be reimbursed for the amounts paid by him towards the acquisition of jointly owned property or for the sale of the same with the proceeds equitably divided between the parties, and for the return of the items of personal property belonging to him still in the possession of BEAUGRAND. WHEREFORE, counterplaintiff O'TOOLE. prays that the Court enter a declaratory judgment equitably dividing personal property jointly owned by the parties and for the partition and sale of the same, if necessary; otdeting BEAUGRAND to serum personal property in her possession and control that belongs to O'TOOLE; ordering .an accounting of the personal property jointly owned or in which each has a special claim of RiPsgeBeangrand v. Q”Foole Case # 2016 CA 6151 NC right or equity; and that the Court grant such additional and further relief provided by law or in equity, and deemed appropriate in the premises. 1 DO HEREBY CERTIFY that a tue and correct copy of the foregoing was caused to be served by electronic mail on May 14, 2017, apon Steele T, Williams, Esquire, STEELE T WILLIAMS, PA, aniomney for * phat Pineapple Place, 1381 McAnsh Square, Sarasota, Florida, 34236; Stecte'T Wi ame “ Respectfully submitted, BRET SHAWN CLARK, PA PO BOX 1133 Englewood, Florida 34295 Tel: (941) 404-4704 BretClark@ WebNetLawyver.Com [Bret Clark Bret Clark, Esquire FB #384038 Attomey for Defendant/Counterplaintiff Robert O'Toole {EXHIBITS ON FOLLOWING PAGES]Beaugrand v. O'Toole Case # 2016 CA 6351 NC “RONEN ERS pepo : 9 fiat Pegelt TRENT # SGD 1 Goss! Scary Tite ts: 207 Wy 1 Be V ai wet SRREN £, ROBIN aglesons Finis 34226 Coke OF THe CIRCUIT cou? SARASTTA GUATY FLORIDA te Nabe T2208 CRARETE Receiet BOBS ‘ee Stane-teeds Dad General Warranty Deed , — mo, a Mase this Naver 36,2007 A.D. By Robert O' Toute, a sng man whase vines ix. 1855 Reshore Or. Elewsoe. FL W223, exon cles he prac Yea Benogrand and Robert Faas joint saat with flights of werviverhip, exe pot ocr fines 1888 Bayshuce Dees, Englewood, FL. 3423, betas called the gran ‘hen wet ee em ip tee a i aoe de eral een a ef a on wanna apn oo) Witnesseth, wate gray, ond coder af ee Tex Dati, (8.00 and herve conser, ‘esi ube ety acre, bere gracs, pas, els ali ros, onc, obeys conrad erste, a Gatcervin aad shat m Sra Cony, Pn, ve ‘Lat $85, fnigewood Gardens Unit & i per pt therv,racorded in Plat Hook 8, Page T2 and 73, ofthe Public Reronds of Surnsata County, Frid, ‘Sipe tes Se coe, coven, ein an earner of tan fay. Pace (0 Nenber B26 ‘Vogether wisi te cements, eeu ad apyeninc bsi Wlngig oy appa ‘To Have and to Hold, te sun in ee seni Baers ‘And she pct sty covenants with lg tat te rats fly sind fond nt spe abe ator at good ight newt tory oe wd cere lands hate rv oe Rly ca hee i and wi tend ‘Ge na apis fo vt a 6 prsson nacre, ae at i ad See of ali encunhmies ee aes Aero sStocqest December 1 2006 { Witzess Whereof, te suit gramer bas sign and veneer the dy yer fi abore wit Sighted, sealed and delivered in owe presence: ss oT oom Coupe. iain pace Campo ws = ° am tt hoe ES CUIEY \ = (Sesip Libhagatd iRise aie 2a Was Pros ig Sais of Fert Coos of Cale “Te oregon, instroners wa teu this Neyer 26, 207, by Rober Footy, x ope mun, who ee peony ronen wie oe win tuhove nodwed FR.ocida Dy bold. ot dentition ‘tm notery sea) ai ary Oat age cs “Gate Cnet EXHIBIT ABeaugrand v, OToale Cast # 2016 CA 6351 NC CHARLOTTE COUNTY CLERK OF CIRCUIT COURT OR BOOK: 4046, PGS: 2082 PAGES 1 OF 2 INSTR # 2409966 Doe Type: D, Recorded: U2YIOLG at 11:14 ANT Rec, Feet RECORDING $18.80 D BOCTAX PD 86.79 Cashier By: AMANDAD ProparedBy: Sooke ie e ae HWS ae 2% 8OBE Ist Sheet emalewtnn Na By (first party) “Rovert \. O' Veole. Fo(eerond pore) \ ioint oaks, & Meausrand aud Rdoert 3. O'toole ao 4 wees blo Pinto Veh, cn lewood FL MARS (wherever used herein the terms “lirst party” and “seesad party” thal include singular avd plural, heirs, Jegal representatives sad atsigns of individuals, was the nuccesnics and assigns of corporatians, wherreer the coatext so ainita sr requires.) ‘Witnesseth, That the said first party, for and in consideration of the sum of $12" im Jhand pald by the said second party, the receipt whereof is hereby acknowledged, does hereby remist, release and quit-claim unto the said second barty forever, all the right, tite, interest, claim and demand which the said first party has iu and to the following described lot, piece or parcel land, situate, lying and being im the County of Cwiclole _, State of Aes TO Witt BR coaches call own properly aS pink feuouts. ‘To have and to hold the same together with all and singular the appurtenances thereuato belonging or in anywise appertaining, and all the estade , right, tite, interest, lien, equity und elim whatsoever for the said first party, either ia law or equity, to the only proper use, henefit and bshoof of the said second party forever. In Whines Whercof, the said first party has signed and sealed these presents the day and year fist above written, EXHIBIT B ISiPupeBeangrand vO Toole Case # 2016 CA 6331 NC OR BOK: 4046, PAGE NUMBER: 2003 INSTRY 2409906 PAGE: 2 OF 2 Signed ele, and dtverd ig the presence af y RQ Gad rade ‘Wismass Signatien a to First Party ‘Signature of Firs Pary. ~ ec tat Relics CBT OT Onl = ‘Priased Kame. Printed Name re A Py 2) tle Elle TE Bre Gt oeg ‘Wasess Sigeature as ijFire Party Post Glfice Address T¥a28 OVAL AN sic Bans “Reavarand cere nine ‘Wiiness Sigaaturs ab to Co First Party (any) ‘Signature of Co-Firai Party Gtaay) Priaied Name ™ ‘Printed Newae ‘Witness Sigaature as to CocFirst Purly Gfaay) on Ofte Adres saitiar a oa ane Seas STATE OF FLORIDA-COUNTY OF ‘The foregoing instrument was acknowl ed before me this. y of “SPs Wks sty Ra \ioc & Sian who is petsonaliy known to me or has produced ek SSumalla RES yee identifieation and who did/did nut take an oath, Nad S gS C & re of Nota ty Clerk : ews Vide b Printed Nas YF eames # FTE id Dep ey a EXHIBIT B