Preview
Filing # 63191564 E-Filed 10/23/2017 03:07:53 PM
IN THE CIRCUIT COURT OF THE
NINTH JUDICIAL CIRCUIT IN AND
FOR ORANGE COLINTY, FLORIDA
CASE NO. 2017-CA-004884-O
DIVISION 32
PAYAS COMMERCIAL
REAL ESTATE, INC.,
a Florida corporation,
Plaintifl
HOSTDIME.COM, INC., a Florida
corporation; the TOWN OF EATONVILLE,
a municipal corporation; and the SCHOOL
BOARD OF ORANGE COUNTY, FLORIDA,
Defendants.
ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT
TOWN OF EATONVILLE'S AFFIRMATIVE DEFENSES
THIS MATTER is before the Court on Plaintifls Motion to Strike Defendant
Town of Eatonville's Affirmative Defenses, filed on July 18, 2017; and Defendant
Town of Eatonville's Response, filed on August 4,2017. Plaintiff moves to strike
the six affirmative defenses asserted by Defendant Town ofEatonville in paragraphs
16 to 2l of its Answer. The court, having reviewed the court file and being fully
advised in the premises, finds and decides as follows:
First Affirmative Defense. The First Affirmative Defense, which claims lack
of consideration, is STRICKEN wITHour PREJUDICE. The court finds that this
defense is insufficiently pled, as it is conclusory and lacks supporting factual
allegations. See Holtzman v. B/E Aerospace, Inc., No. 07-80551-CN, (S.D. Fla.
May 29, 2008) [2008 WL 2225668) ("While Defendants need not provide detailed
factual allegations, they must provide more than bare-bones conclusions. Plaintiff
should not be left to discover the bare minimum facts constituting a defense until
discovery. . . ."). Defendant Town of Eatonville shall have twenty (20) days from
the date of this Order to plead its First Affirmative Defense with greater specificity.
If Defendant Town of Eatonville fails to plead its First Affirmative Defense with
greater specificity within the time provided in this Order, it shall be deemed stricken
with prejudice without further order from the Court.
Second Affirmative Defense. The Second Affirmative Defenses is
STRICKEN WITH PREJLIDICE. As Defendant Town of Eatonville properly
concedes, Plaintifls "alleged commission is outside the statute of frauds.,,
Third. Fourth. and Fifth Affirmative Defenses. As plaintiff argues, these
affirmative defenses are essentially mere denials. Additionally, to the extent that
they challenge the sufficiency of the allegations in the Complaint, they are not proper
affirmative defenses. See St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d483,487
(Fla. 5th DCA 2002) ("An affirmative defense is a defense which admits the cause
ofaction, but avoids liability, in whole or in part, by alleging an excuse,justification,
2
or other matter negating or limiting liability."). Accordingly, the Third, Fourth, and
Fifth Affirmative Defenses are STRICKEN WITH PREJUDICE.
Sixth Affirmative Defense. In the Sixth Affirmative Defense, Defendant
Town of Eatonville states, "Plaintiff s cause of action for unjust enrichment should
fail because he has shown in his allegations that he has other adequate legal
remedies." However, as Plaintiff points out, under Florida law it is permissible to
plead in the altemative. See Estate Value Co., Inc. v. Carnival Corp.,92So.3d255,
263 n.2 (Fla. 3d DCA 20 12) ("Under Florida law, a parry may simultaneously allege
the existence of an express contract and altematively plead a claim for unjust
enrichment. Of course, upon a showing that an express contract conceming the same
subject matter exists, the unjust enrichment claim necessarily fails.") (citation
omitted). Accordingly, the Sixth Affirmative Defense is STRICKEN WITH
PREJUDICE.
DONE AND ORDERED in Chambers in Orlando, Orange County, Florida
this 23rd day ofOctober,2017.
DA.MYERS,
J
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foresoins was filed with the Clerk of the Court
this 33 aay ot (.Wlsg . ion-ay using the Florida Courts E-Filing
Portal System. Accordingly, a copy of the foregoing is being served on this day to
all attomey(s)/interested parties identified on the ePortal Electronic Service List, via
transmission of Notices of Electronic Filing generated by the ePortal system.
741/rr*&h
Melissa Goodwin
Judicial Assistant
4
Preview
Filing # 63191564 E-Filed 10/23/2017 03:07:53 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COLINTY, FLORIDA CASE NO. 2017-CA-004884-O DIVISION 32 PAYAS COMMERCIAL REAL ESTATE, INC., a Florida corporation, Plaintifl HOSTDIME.COM, INC., a Florida corporation; the TOWN OF EATONVILLE, a municipal corporation; and the SCHOOL BOARD OF ORANGE COUNTY, FLORIDA, Defendants. ORDER GRANTING PLAINTIFF'S MOTION TO STRIKE DEFENDANT TOWN OF EATONVILLE'S AFFIRMATIVE DEFENSES THIS MATTER is before the Court on Plaintifls Motion to Strike Defendant Town of Eatonville's Affirmative Defenses, filed on July 18, 2017; and Defendant Town of Eatonville's Response, filed on August 4,2017. Plaintiff moves to strike the six affirmative defenses asserted by Defendant Town ofEatonville in paragraphs 16 to 2l of its Answer. The court, having reviewed the court file and being fully advised in the premises, finds and decides as follows: First Affirmative Defense. The First Affirmative Defense, which claims lack of consideration, is STRICKEN wITHour PREJUDICE. The court finds that this defense is insufficiently pled, as it is conclusory and lacks supporting factual allegations. See Holtzman v. B/E Aerospace, Inc., No. 07-80551-CN, (S.D. Fla. May 29, 2008) [2008 WL 2225668) ("While Defendants need not provide detailed factual allegations, they must provide more than bare-bones conclusions. Plaintiff should not be left to discover the bare minimum facts constituting a defense until discovery. . . ."). Defendant Town of Eatonville shall have twenty (20) days from the date of this Order to plead its First Affirmative Defense with greater specificity. If Defendant Town of Eatonville fails to plead its First Affirmative Defense with greater specificity within the time provided in this Order, it shall be deemed stricken with prejudice without further order from the Court. Second Affirmative Defense. The Second Affirmative Defenses is STRICKEN WITH PREJLIDICE. As Defendant Town of Eatonville properly concedes, Plaintifls "alleged commission is outside the statute of frauds.,, Third. Fourth. and Fifth Affirmative Defenses. As plaintiff argues, these affirmative defenses are essentially mere denials. Additionally, to the extent that they challenge the sufficiency of the allegations in the Complaint, they are not proper affirmative defenses. See St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d483,487 (Fla. 5th DCA 2002) ("An affirmative defense is a defense which admits the cause ofaction, but avoids liability, in whole or in part, by alleging an excuse,justification, 2 or other matter negating or limiting liability."). Accordingly, the Third, Fourth, and Fifth Affirmative Defenses are STRICKEN WITH PREJUDICE. Sixth Affirmative Defense. In the Sixth Affirmative Defense, Defendant Town of Eatonville states, "Plaintiff s cause of action for unjust enrichment should fail because he has shown in his allegations that he has other adequate legal remedies." However, as Plaintiff points out, under Florida law it is permissible to plead in the altemative. See Estate Value Co., Inc. v. Carnival Corp.,92So.3d255, 263 n.2 (Fla. 3d DCA 20 12) ("Under Florida law, a parry may simultaneously allege the existence of an express contract and altematively plead a claim for unjust enrichment. Of course, upon a showing that an express contract conceming the same subject matter exists, the unjust enrichment claim necessarily fails.") (citation omitted). Accordingly, the Sixth Affirmative Defense is STRICKEN WITH PREJUDICE. DONE AND ORDERED in Chambers in Orlando, Orange County, Florida this 23rd day ofOctober,2017. DA.MYERS, J CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foresoins was filed with the Clerk of the Court this 33 aay ot (.Wlsg . ion-ay using the Florida Courts E-Filing Portal System. Accordingly, a copy of the foregoing is being served on this day to all attomey(s)/interested parties identified on the ePortal Electronic Service List, via transmission of Notices of Electronic Filing generated by the ePortal system. 741/rr*&h Melissa Goodwin Judicial Assistant 4