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Filing # 118186781 E-Filed 12/14/2020 06:02:05 PM
IN THE CIRCUIT COURT OF THE 177
JUDICIAL CIRCUIT IN AND FOR
BROWARD COUNTY, FLORIDA
FOOD MARKETING CONSULTANTS, INC.
d/b/a SAN BERNARDO,
Plaintiff,
vs. CASE NO. CACE18-000924
NEW ALBERTSON’S LP f/n/a
NEW ALBERTSON’S, INC.
Defendants.
See
PLAINTIFF’S ANSWER AND AFFIRMATIVE
DEFENSES TO DEFENDANT’S COUNTERCLAIM
Plaintiff, Food Marketing Consultants, Inc. d/b/a San Bernardo, by and through its
undersigned counsel, files this, its Answer to Defendant, New Albertson’s LP f/n/a New
Albertsons, Inc.’s, Counterclaim with Affirmative Defenses, and does state:
1. Plaintiff admits the allegations in Paragraph 1 of the Counterclaim for jurisdiction,
but denies the remaining allegations.
2. Plaintiff admits that Broward County is the proper venue for this Counterclaim, but
denies the remaining allegations in Paragraph 2 of the Counterclaim.
3. Plaintiff admits the allegations in Paragraph 3 of the Counterclaim to the extent that
C&S for delivery and storage and deny to the balance.
4. Plaintiff admits the allegations in Paragraph 4 of the Counterclaim as C&S was
delivering and storing and deny to the balance.
5. Plaintiff admits the allegations in Paragraph 5 of the Counterclaim for delivery and
storage and deny to the balance.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/14/2020 06:02:04 PM.****10.
11.
12.
14.
15.
above.
16.
Plaintiff admits the allegations in Paragraph 6 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 7 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 8 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 9 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 10 of the Counterclaim.
Plaintiff denies as written the allegations in Paragraph 11 of the Counterclaim.
Plaintiff denies as written the allegations in Paragraph 12 of the Counterclaim.
Plaintiff denies as written the allegations in Paragraph 13 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 14 of the Counterclaim.
COUNT I— BREACH OF CONTRACT
Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14
Plaintiff admits to the monthly payment of $10,000 as to allegations in Paragraph
16 of the Counterclaim pursuant to an overall relationship, and denies the balance as written.
17.
18.
19.
20.
21.
22.
23.
24.
25.
Plaintiff admits the allegations in Paragraph 17 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 18 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 19 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 20 of the Counterclaim.
Plaintiff admits the allegations in Paragraph 21 of the Counterclaim.
Plaintiff admits the allegations in Paragraph 22 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 23 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 24 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 25 of the Counterclaim.26. Plaintiff denies the allegations in Paragraph 26 of the Counterclaim.
WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or
any relief and prays for judgment in their favor, dismissing the action, together with an award of
costs and attorney fees and for such other and further relief as deemed just and proper.
COUNT TWO — ACCOUNT STATED
27. Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14
above.
28. Plaintiff admits that Albertson’s submitted the invoices attached as Exhibit 1 to the
Counterclaim.
29. Plaintiff denies the allegations in Paragraph 29 of the Counterclaim.
30. Plaintiff denies as written the allegations in Paragraph 30 of the Counterclaim.
31. Plaintiff denies as written the allegations in Paragraph 31 of the Counterclaim.
32. Plaintiff denies the allegations in Paragraph 32 of the Counterclaim.
WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or
any relief and prays for judgment in their favor, dismissing the action, together with an award of
costs and attorney fees and for such other and further relief as deemed just and proper.
COUNT THREE — OPEN ACCOUNT
33. Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14
above.
34. Plaintiff admits the allegations in Paragraph 34 of the Counterclaim.
35. Plaintiff admits the allegations in Paragraph 35 of the Counterclaim.
36. Plaintiff admits that Albertson’s submitted the invoices attaches as Exhibit | to the
Counterclaim, and denies the balance of Paragraph 36 of the Counterclaim.37.
Plaintiff denies as written the allegations in Paragraph 37 of the Counterclaim.
WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or
any relief and prays for judgment in their favor, dismissing the action, together with an award of
costs and attorney fees and for such other and further relief as deemed just and proper.
38.
above.
39.
40.
41.
42.
43.
COUNT FOUR — UNJUST ENRICHMENT
Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14
Plaintiff admits the allegations in Paragraph 39 of the Counterclaim.
Plaintiff admits the allegations in Paragraph 40 of the Counterclaim.
Plaintiff admits the allegations in Paragraph 41 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 42 of the Counterclaim.
Plaintiff denies the allegations in Paragraph 43 of the Counterclaim.
WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or
any relief and prays for judgment in their favor, dismissing the action, together with an award of
costs and attorney fees and for such other and further relief as deemed just and proper.
AFFIRMATIVE DEFENSES
Having answered the Counterclaim, Plaintiff asserts the following enumerated Affirmative
Defenses.
FIRST AFFIRMATIVE DEFENSE
As the First Affirmative Defense, the Counter-Defendant asserts that Counter-Plaintiff has
unclean hands while it seeks equity from this Court. Among other inequitable acts, Counter-
Plaintiff made promises with no intent or follow through on the commitment in order to gainmoney from Counter-Defendant associated with the 2017 arrangement. Counter-Plaintiff should
not be allowed to prevail on its equitable claims in light of their actions.
SECOND AFFIRMATIVE DEFENSE
As the Second Affirmative Defense, Counter-Plaintiff committed a prior breach and
Counter-Defendant was released of its obligations. Counter-Plaintiff committed the breach as
stated in the complaint which relieved Counter-Defendant of its obligations to pay.
THIRD AFFIRMATIVE DEFENSE
As the Third Affirmative Defense, the Plaintiff assert that the Defendant’s damages, if any,
were caused by the Defendant’s own negligence and/or actions and should be proportionally
diminished.
FOURTH AFFIRMATIVE DEFENSE
As the Fourth Affirmative Defense, the Plaintiff asserts frustration of purpose in light of
the purpose it entered into arrangements with Defendant to sell its products and the basis to pay
the demanded amount was frustrated. Defendant knew of Plaintiff's purpose. It was not Plaintiff's
actions that frustrated the purpose. There was a failure of consideration, Defendant fulfilling its
part and unexpected and unforeseen circumstances.
Respectfully Submitted,
Business and Family Law Center, Inc.
1290 Weston Road, Suite 218
Weston, Florida 33326
notices@swlawcenter.com
Tel: (954) 384-0998
Fax: (954) 384-5390
By: _/s/ Kraig S. Weiss
Kraig S. Weiss, Esq.
Fla. Bar No. 0063193CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the Florida
Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com and Erik Stidham,
Esq., efstidham@hollandhart.com on this 14th day of December, 2020.
By:_/s/ Kraig S. Weiss
Kraig S. Weiss, Esq.
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Filing # 118186781 E-Filed 12/14/2020 06:02:05 PM IN THE CIRCUIT COURT OF THE 177 JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA FOOD MARKETING CONSULTANTS, INC. d/b/a SAN BERNARDO, Plaintiff, vs. CASE NO. CACE18-000924 NEW ALBERTSON’S LP f/n/a NEW ALBERTSON’S, INC. Defendants. See PLAINTIFF’S ANSWER AND AFFIRMATIVE DEFENSES TO DEFENDANT’S COUNTERCLAIM Plaintiff, Food Marketing Consultants, Inc. d/b/a San Bernardo, by and through its undersigned counsel, files this, its Answer to Defendant, New Albertson’s LP f/n/a New Albertsons, Inc.’s, Counterclaim with Affirmative Defenses, and does state: 1. Plaintiff admits the allegations in Paragraph 1 of the Counterclaim for jurisdiction, but denies the remaining allegations. 2. Plaintiff admits that Broward County is the proper venue for this Counterclaim, but denies the remaining allegations in Paragraph 2 of the Counterclaim. 3. Plaintiff admits the allegations in Paragraph 3 of the Counterclaim to the extent that C&S for delivery and storage and deny to the balance. 4. Plaintiff admits the allegations in Paragraph 4 of the Counterclaim as C&S was delivering and storing and deny to the balance. 5. Plaintiff admits the allegations in Paragraph 5 of the Counterclaim for delivery and storage and deny to the balance. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 12/14/2020 06:02:04 PM.****10. 11. 12. 14. 15. above. 16. Plaintiff admits the allegations in Paragraph 6 of the Counterclaim. Plaintiff denies the allegations in Paragraph 7 of the Counterclaim. Plaintiff denies the allegations in Paragraph 8 of the Counterclaim. Plaintiff denies the allegations in Paragraph 9 of the Counterclaim. Plaintiff denies the allegations in Paragraph 10 of the Counterclaim. Plaintiff denies as written the allegations in Paragraph 11 of the Counterclaim. Plaintiff denies as written the allegations in Paragraph 12 of the Counterclaim. Plaintiff denies as written the allegations in Paragraph 13 of the Counterclaim. Plaintiff denies the allegations in Paragraph 14 of the Counterclaim. COUNT I— BREACH OF CONTRACT Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14 Plaintiff admits to the monthly payment of $10,000 as to allegations in Paragraph 16 of the Counterclaim pursuant to an overall relationship, and denies the balance as written. 17. 18. 19. 20. 21. 22. 23. 24. 25. Plaintiff admits the allegations in Paragraph 17 of the Counterclaim. Plaintiff denies the allegations in Paragraph 18 of the Counterclaim. Plaintiff denies the allegations in Paragraph 19 of the Counterclaim. Plaintiff denies the allegations in Paragraph 20 of the Counterclaim. Plaintiff admits the allegations in Paragraph 21 of the Counterclaim. Plaintiff admits the allegations in Paragraph 22 of the Counterclaim. Plaintiff denies the allegations in Paragraph 23 of the Counterclaim. Plaintiff denies the allegations in Paragraph 24 of the Counterclaim. Plaintiff denies the allegations in Paragraph 25 of the Counterclaim.26. Plaintiff denies the allegations in Paragraph 26 of the Counterclaim. WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or any relief and prays for judgment in their favor, dismissing the action, together with an award of costs and attorney fees and for such other and further relief as deemed just and proper. COUNT TWO — ACCOUNT STATED 27. Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14 above. 28. Plaintiff admits that Albertson’s submitted the invoices attached as Exhibit 1 to the Counterclaim. 29. Plaintiff denies the allegations in Paragraph 29 of the Counterclaim. 30. Plaintiff denies as written the allegations in Paragraph 30 of the Counterclaim. 31. Plaintiff denies as written the allegations in Paragraph 31 of the Counterclaim. 32. Plaintiff denies the allegations in Paragraph 32 of the Counterclaim. WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or any relief and prays for judgment in their favor, dismissing the action, together with an award of costs and attorney fees and for such other and further relief as deemed just and proper. COUNT THREE — OPEN ACCOUNT 33. Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14 above. 34. Plaintiff admits the allegations in Paragraph 34 of the Counterclaim. 35. Plaintiff admits the allegations in Paragraph 35 of the Counterclaim. 36. Plaintiff admits that Albertson’s submitted the invoices attaches as Exhibit | to the Counterclaim, and denies the balance of Paragraph 36 of the Counterclaim.37. Plaintiff denies as written the allegations in Paragraph 37 of the Counterclaim. WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or any relief and prays for judgment in their favor, dismissing the action, together with an award of costs and attorney fees and for such other and further relief as deemed just and proper. 38. above. 39. 40. 41. 42. 43. COUNT FOUR — UNJUST ENRICHMENT Plaintiff reasserts and realleges the responses to the allegations in Paragraphs 1-14 Plaintiff admits the allegations in Paragraph 39 of the Counterclaim. Plaintiff admits the allegations in Paragraph 40 of the Counterclaim. Plaintiff admits the allegations in Paragraph 41 of the Counterclaim. Plaintiff denies the allegations in Paragraph 42 of the Counterclaim. Plaintiff denies the allegations in Paragraph 43 of the Counterclaim. WHEREFORE, the Plaintiff denies that the Defendant is entitled to the requested relief or any relief and prays for judgment in their favor, dismissing the action, together with an award of costs and attorney fees and for such other and further relief as deemed just and proper. AFFIRMATIVE DEFENSES Having answered the Counterclaim, Plaintiff asserts the following enumerated Affirmative Defenses. FIRST AFFIRMATIVE DEFENSE As the First Affirmative Defense, the Counter-Defendant asserts that Counter-Plaintiff has unclean hands while it seeks equity from this Court. Among other inequitable acts, Counter- Plaintiff made promises with no intent or follow through on the commitment in order to gainmoney from Counter-Defendant associated with the 2017 arrangement. Counter-Plaintiff should not be allowed to prevail on its equitable claims in light of their actions. SECOND AFFIRMATIVE DEFENSE As the Second Affirmative Defense, Counter-Plaintiff committed a prior breach and Counter-Defendant was released of its obligations. Counter-Plaintiff committed the breach as stated in the complaint which relieved Counter-Defendant of its obligations to pay. THIRD AFFIRMATIVE DEFENSE As the Third Affirmative Defense, the Plaintiff assert that the Defendant’s damages, if any, were caused by the Defendant’s own negligence and/or actions and should be proportionally diminished. FOURTH AFFIRMATIVE DEFENSE As the Fourth Affirmative Defense, the Plaintiff asserts frustration of purpose in light of the purpose it entered into arrangements with Defendant to sell its products and the basis to pay the demanded amount was frustrated. Defendant knew of Plaintiff's purpose. It was not Plaintiff's actions that frustrated the purpose. There was a failure of consideration, Defendant fulfilling its part and unexpected and unforeseen circumstances. Respectfully Submitted, Business and Family Law Center, Inc. 1290 Weston Road, Suite 218 Weston, Florida 33326 notices@swlawcenter.com Tel: (954) 384-0998 Fax: (954) 384-5390 By: _/s/ Kraig S. Weiss Kraig S. Weiss, Esq. Fla. Bar No. 0063193CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was filed via the Florida Courts E-Filing portal and furnished to Eric Lee, Esq. at lee@leeamlaw.com and Erik Stidham, Esq., efstidham@hollandhart.com on this 14th day of December, 2020. By:_/s/ Kraig S. Weiss Kraig S. Weiss, Esq.