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Filing # 91964938 E-Filed 07/01/2019 07:29:50 PM
IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT
IN AND FOR INDIAN RIVER COUNTY, FLORIDA
LEAH M. HUBBARD CASENO. 312019CA000232
Plaintiff
CIVIL DIVISION
vs.
E. CLAYTON YATES, P.A.
Defendant(s).
/
PLAINTIFFS’ MOTION TO STRIKE AFFIRMATIVE DEFENSES
COMES NOW, Plaintiff, LEAH M, HUBBARD, and files this Plaintiffs’ Motion to
Strike Affirmative Defenses for failure to satisfy the Florida Rules of Civil Procedure pleading
requirements and as grounds therefore states:
INTRODUCTION
In another attempt to delay this action, Defendant asserts thirteen frivolous and irrelevant
affirmative defenses. Each paragraph set forth numerous conclusory affirmative defenses without
pleading any facts that form the basis for those defenses. As pled, all ofthe affirmative
defenses are legally insufficient and without merit and must be stricken pursuant
Rule 1.140(b). Florida Rule of Civil Procedure 1.140(b). Significantly, each and every one of Defendant’s
thirteen affirmative lacks specificity and appear to have no factual investigation or regard to
relevance. In addition, all of the Defendant’s defenses are insufficiently pled without regard to
decisions already addressed by the Court, fail to properly state a legal defense and offer no
cognizable legal claim for relief.
1. Defendant, E. Clayton Yates, P.A., filed an Answer that included affirmative defenses.
2. The Defendant's affirmative defenses fail to state a legal defense.
3. Florida is a fact pleading state and requires that ultimate facts in support of the legal
theory be pled in any pleading set forth a claim for relief. S. Fla. Coastal Elec., Inc. v.
Treasure on the Bay If Condo Ass'n, 89 So. 34 264, 267 (Fla.3d DCA 2012).
4. The Defendant attempts to assert comparative negligence in paragraphs One, Three, Four
Five and Eleven of the affirmative defenses. The Defendant fails to state a legal defense.
Further, no viable evidence was submitted in support of the allegations and the Courtw
addressed comparative negligence, unclean hands and the legal terms of the Plaintiff's
sanctions in the Defendant’s Motion to Dismiss which was denied.
‘The Defendant’s Second affirmative defense fails to state a legal defense. “The elements
of equitable estoppel are (1) a representation as to a material fact that is contrary to a
later-asserted position, (2) reliance on that representation, and (3) a change in position
detrimental to the party claiming estoppel, caused by the representation and reliance
thereon.” State v. Harris, 881 So,.2d 1079, 1084 (Fla. 2004). Further, “The conduct, such
as to create an estoppel, necessary to a waiver consists of willful or negligent words and
admissions, or conduct, acts and acquiescence causing another to believe in a certain state
of things by which such other person is or may be induced to act to his prejudice. The
acts or conduct need not be positive, but can consist of failure to act or, more particularly,
failure to speak when under some duty to speak.” Richards y. Dodge, 150 So.2d 477, 481
(Fla, 2d DCA 1963). The Plaintiff's was adjudicated withheld by the Indian River County
court and was given sanctions of probation, Under Florida law, the Plaintiff is not a
convicted felon nor was the Plaintiff found guilty of any crime. In addition, the Plaintiff
spent 6 months in Indian River Count jail due to the egregious, intentional and heinous
acts, lack of acts and misrepresentation of the Defendant. The Defendant is the proximate
cause for the Plaintiff's incarceration and all harm and financial damage which followed
to present.
Affirmative defense Six fails to state a Jegal defense and the Defendant did not articulate
ultimate facts supporting the defense. An exception to the Impact rule is breach of
confidentiality. In addition, the Defendant touched the Plaintiff by putting his hands on
the Plaintiff inappropriately multiple times after July 18, 2017, which the Plaintiff
interpreted as an implied sexual advance. The Plaintiff will motion the court for leave to
amend to include a sexual harassment cause of action.
Affirmative defense Seven fails to state a legal defense and the Defendant did not
articulate ultimate facts supporting the defense.
Affirmative defense Eight fails to state a legal defense and the Defendant did not
articulate ultimate facts supporting the defense.
Affirmative defense Nine fails to state a legal defense and the Defendant did not
articulate ultimate facts supporting the defense. Further, Florida Statute Section95.11(4)(2) states the statute of limitations is 2 years and therefore the Plaintiff is within
the boundaries of the statute of limitations.
10. Affirmative defense Ten fails to state a legal defense and the Defendant did not articulate
ultimate facts supporting the defense.
11. Affirmative defense Twelve fails to state a legal defense and the Defendant did not
articulate ultimate facts supporting the defense. Further, the defense is moot since the
Court already addressed cause of action in the Defendant’s Motion to Dismiss which was
denied.
12. Affirmative defense Thirteen fails to state a legal defense and the Defendant did not
articulate ultimate facts supporting the defense.
13. Plaintiff moves to strike the affirmative defenses the Defendant pled in his answer.
WHEREFORE, the Plaintiffs prays that this Honorable Court strike the Defendant’s
Affirmative Defenses and any other relief the court may deem just and necessary.
Under penalties of perjury, I declare that I have read the foregoing [document] and that the
facts stated in it are true.
\A
M. Hubbard?
2046 79" Avenue
Vero Beach, FL 32966
(407) 866-4931
laintiff
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
by e-service to Jeffrey K. Rubin, Esq. eservicewpb@econroysimbere.com and
ka hh cf
jrubin@conroysimberg.com, this 1“ day of July, 2019.
M. Hubbard, Plaintiff
2046 79 Avenue
Vero Beach, FL 32966
407-866-4931
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Filing # 91964938 E-Filed 07/01/2019 07:29:50 PM IN THE CIRCUIT COURT OF THE NINETEENTH JUDICIAL CIRCUIT IN AND FOR INDIAN RIVER COUNTY, FLORIDA LEAH M. HUBBARD CASENO. 312019CA000232 Plaintiff CIVIL DIVISION vs. E. CLAYTON YATES, P.A. Defendant(s). / PLAINTIFFS’ MOTION TO STRIKE AFFIRMATIVE DEFENSES COMES NOW, Plaintiff, LEAH M, HUBBARD, and files this Plaintiffs’ Motion to Strike Affirmative Defenses for failure to satisfy the Florida Rules of Civil Procedure pleading requirements and as grounds therefore states: INTRODUCTION In another attempt to delay this action, Defendant asserts thirteen frivolous and irrelevant affirmative defenses. Each paragraph set forth numerous conclusory affirmative defenses without pleading any facts that form the basis for those defenses. As pled, all ofthe affirmative defenses are legally insufficient and without merit and must be stricken pursuant Rule 1.140(b). Florida Rule of Civil Procedure 1.140(b). Significantly, each and every one of Defendant’s thirteen affirmative lacks specificity and appear to have no factual investigation or regard to relevance. In addition, all of the Defendant’s defenses are insufficiently pled without regard to decisions already addressed by the Court, fail to properly state a legal defense and offer no cognizable legal claim for relief. 1. Defendant, E. Clayton Yates, P.A., filed an Answer that included affirmative defenses. 2. The Defendant's affirmative defenses fail to state a legal defense. 3. Florida is a fact pleading state and requires that ultimate facts in support of the legal theory be pled in any pleading set forth a claim for relief. S. Fla. Coastal Elec., Inc. v. Treasure on the Bay If Condo Ass'n, 89 So. 34 264, 267 (Fla.3d DCA 2012). 4. The Defendant attempts to assert comparative negligence in paragraphs One, Three, Four Five and Eleven of the affirmative defenses. The Defendant fails to state a legal defense. Further, no viable evidence was submitted in support of the allegations and the Courtw addressed comparative negligence, unclean hands and the legal terms of the Plaintiff's sanctions in the Defendant’s Motion to Dismiss which was denied. ‘The Defendant’s Second affirmative defense fails to state a legal defense. “The elements of equitable estoppel are (1) a representation as to a material fact that is contrary to a later-asserted position, (2) reliance on that representation, and (3) a change in position detrimental to the party claiming estoppel, caused by the representation and reliance thereon.” State v. Harris, 881 So,.2d 1079, 1084 (Fla. 2004). Further, “The conduct, such as to create an estoppel, necessary to a waiver consists of willful or negligent words and admissions, or conduct, acts and acquiescence causing another to believe in a certain state of things by which such other person is or may be induced to act to his prejudice. The acts or conduct need not be positive, but can consist of failure to act or, more particularly, failure to speak when under some duty to speak.” Richards y. Dodge, 150 So.2d 477, 481 (Fla, 2d DCA 1963). The Plaintiff's was adjudicated withheld by the Indian River County court and was given sanctions of probation, Under Florida law, the Plaintiff is not a convicted felon nor was the Plaintiff found guilty of any crime. In addition, the Plaintiff spent 6 months in Indian River Count jail due to the egregious, intentional and heinous acts, lack of acts and misrepresentation of the Defendant. The Defendant is the proximate cause for the Plaintiff's incarceration and all harm and financial damage which followed to present. Affirmative defense Six fails to state a Jegal defense and the Defendant did not articulate ultimate facts supporting the defense. An exception to the Impact rule is breach of confidentiality. In addition, the Defendant touched the Plaintiff by putting his hands on the Plaintiff inappropriately multiple times after July 18, 2017, which the Plaintiff interpreted as an implied sexual advance. The Plaintiff will motion the court for leave to amend to include a sexual harassment cause of action. Affirmative defense Seven fails to state a legal defense and the Defendant did not articulate ultimate facts supporting the defense. Affirmative defense Eight fails to state a legal defense and the Defendant did not articulate ultimate facts supporting the defense. Affirmative defense Nine fails to state a legal defense and the Defendant did not articulate ultimate facts supporting the defense. Further, Florida Statute Section95.11(4)(2) states the statute of limitations is 2 years and therefore the Plaintiff is within the boundaries of the statute of limitations. 10. Affirmative defense Ten fails to state a legal defense and the Defendant did not articulate ultimate facts supporting the defense. 11. Affirmative defense Twelve fails to state a legal defense and the Defendant did not articulate ultimate facts supporting the defense. Further, the defense is moot since the Court already addressed cause of action in the Defendant’s Motion to Dismiss which was denied. 12. Affirmative defense Thirteen fails to state a legal defense and the Defendant did not articulate ultimate facts supporting the defense. 13. Plaintiff moves to strike the affirmative defenses the Defendant pled in his answer. WHEREFORE, the Plaintiffs prays that this Honorable Court strike the Defendant’s Affirmative Defenses and any other relief the court may deem just and necessary. Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true. \A M. Hubbard? 2046 79" Avenue Vero Beach, FL 32966 (407) 866-4931 laintiff CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by e-service to Jeffrey K. Rubin, Esq. eservicewpb@econroysimbere.com and ka hh cf jrubin@conroysimberg.com, this 1“ day of July, 2019. M. Hubbard, Plaintiff 2046 79 Avenue Vero Beach, FL 32966 407-866-4931