Answer And Counter Claim 4764862 Comments: EFILE#91302696 ANSWER AFFIRMATIVE DEFENSES AND COUNTERCLAIMS TO PLAINTIFF'S AMENDED COMPLAINT, AND DEMAND FOR JURY TRIAL June 18, 2019

On November 26, 2018 a Answer was filed involving a dispute between Photopia - Studios Inc., and A Boat 4 Fun Inc., for Contract Indebtedness in the District Court of Monroe County.

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Filing # 91302696 E-Filed 06/18/2019 05:03:46 PM.

IN THE CIRCUIT COURT OF THE SIXTEENTH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
CIVIL DIVISION
PHOTOPIA - STUDIOS INC.,
a Florida corporation,

Plaintiff/Counter-Defendant,

Vv Case No.: 2018-CA-00852-PK
Honorable Luis M. Garcia
A BOAT 4 FUN, INC., a Florida
corporation, d/b/a Catamaran
Boatyard,

Defendant/Counter-Plaintiff,

CHRISTIAN KOLM,

Counter-Defendant.
/
ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS TO
PLAINTIFF’S AMENDED COMPLAINT, AND
DEMAND FOR JURY TRIAL,

Defendant, A BOAT 4 FUN, INC. (hereinafter “A Boat 4 Fun”), by

and through its undersigned attorney and pursuant to and pursuant to

Florida Rules of Civil Procedure 1.110, 1.140 and 1.170, file this its

Answer, Affirmative Defenses and Counterclaims, in response to

Plaintiff's Amended Complaint, and states:

1 The allegations in paragraph 1 constitute a statement

regarding jurisdiction of the Court to which no response is required.
22. The allegations in paragraph 2 are admitted.

3. The allegations in paragraph 3 are denied.

4 A Boat 4 Fim is without knowledge with regard to the
allegations of paragraph 4 and, therefore, denies same.

5. The allegations in paragraph 5 are denied.
The allegations in paragraph 6 are admitted.

The allegations in paragraph 7 are denied.

The allegations in paragraph 8 are admitted.

The allegations in paragraph 9 are denied.

10 The allegations in paragraph 10 are denied.

11 A Boat 4 Fim restates its previous answers.

12 The allegations in paragraph 12 are denied.

13 The allegations in paragraph 18 are denied.

14 The allegations in paragraph 14 are denied
15 The allegations in paragraph 15 are denied.

16. A Boat 4 Fun is without knowledge with regard to the

allegations of paragraph 16 and, therefore, denies same.

17 A Boat 4 Fin restates its previous answers.

18 The allegations in paragraph 18 are denied.

19 The allegations in paragraph 19 are admitted.

20 The allegations in paragraph 20 are denied.

21 The allegations in paragraph 21 are denied.

22 The allegations in paragraph 22 are denied.

23 A Boat 4 Fun restates its previous answers.

24 The allegations in paragraph 24 are denied. Contrary to the
material and intentional misrepresentation of Plaintiff's counsel, Douglas

Stratton, to the Court at the hearing on A Boat 4 Fun’s Motion to Dismiss

Amended Complaint, that Plaintiff's vessel was “not at the dock” after

sinking, the vessel remained moored to the dock until it was ultimately

removed by Plaintiff on or about March 2018. See photograph of “sunk”

vessel still attached to its dock slip, attached as Exhibit A.
22
25. Any allegations not specifically admitted are denied.

AFFIRMATIVE DEFENSES TO LIEN FORECLOSURE
FIRST DEFENSE - FATLURE TO STATE A CAUSE OF ACTION

26. Plaintiffs claim for return of the security deposit, although

inartfully drafted, is apparently based solely upon Plaintiff's incorrect

allegation that the Agreement [Exhibit A to the Amended Complaint]

“commenced April 10, 2015 and ended April 80, 2017” [paragraph 9] and

that “Neither party extended the term of the Dockage Agreement.”

[paragraph 10]
27. Although apparently unread by Plaintiff and contrary to

Plaintiff's allegation in it Amended Complaint, paragraph 3 of the

Agreement states:

Upon expiration of the Lease the Boat may remain in its slip
at the Marina ... on a month to month basis at the monthly
rent of $750.00 per month plus all applicable sales tax, plus
actual cost for usage of electrical service and water for a
period of twelve (12) months and the rent thereafter should
the Boat remain at the Marina shall increase on May Ist of
each year thereafter by the amount of $50.00 per month, per
year.

28. Plaintiff adimits that, in fact, Plaintiff exercised its right

provided by paragraph 3 of the Agreement and continued to dock the

vessel at A Boat 4 Fun’s facility until March 2018. This admission

completely eviscerates Plaintiff's claim for return of the security deposit.

29. Florida Rule of Civil Procedure 1.130(b) provides that any

exhibit attached to a pleading shall be considered a part of the pleading

for all purposes.

30. It is long been held in Florida that, where there is an

inconsistency between the claims and allegations in the complaint and

3
the specific facts as revealed by the exhibits, they have the effect of

neutralizing each allegation as against the other and dismissal of the

complaint is proper.

31. Due to inconsistency between the claims and allegations in

the Plaintiff's Amended Complaint and the specific facts as revealed in

the April 10, 2015 written agreement, Plaintiff's exhibit A, Count I the

Amended Complaint fails to state a cause of action.

SECOND DEFENSE - FAILURE TO STATE CAUSE OF ACTION
32. In Count I, Plaintiff alleges that A Boat 4 Fun “acted.
negligently and in breach of Defendant’s obligations to Plaintiff.

[Paragraph 21]. The alleged negligence apparently occurred “prior to

Hurricane Inma hitting Key Largo...”.

33. Although apparently unread by Plaintiff and contrary to

Plaintiffs allegation in it Amended Complaint, paragraph 9 of the

Agreement states that,”[t]his Agreement is not a bailment of the Boat

Owner’s Boat, but a lease of dock space, and Marina’s liability is limited

to supervision and maintenance of waterfront area.”

34. Although apparently unread by Plaintiff and contrary to

Plaintiff's allegation in it Amended Complaint, paragraph 11 of the

Agreement states that, “Marina has no obligation to render aid or

assistance to the Boat under any circumstances. The Marina is not

responsible for losses of or damages to Boats in the Marina.”

35. Plaintiff admits that, in fact, Plaintiff exercised its right

provided by paragraph 3 of the Agreement and continued to dock the

vessel at A Boat 4 Fun’s facility until March 2018. Pursuant to the afore-

4
cited language of the Agreement, Plaintiff has in fact contractually waived

any claim for “negligence” or “breach of obligation” it claims in Count TT.

36. Florida Rule of Civil Procedure 1.180(b) provides that any

exhibit attached to a pleading shall be considered a part of the pleading

for all purposes.

37. It is long been held in Florida that, where there is an

inconsistency between the claims and allegations in the complaint and

the specific facts as revealed by the exhibits, they have the effect of

neutralizing each allegation as against the other and dismissal of the

complaint is proper.

38. Due to inconsistency between the claims and allegations in
the Plaintiff's Amended Complaint of negligence by A Boat 4 Fun, and the

specific facts and waiver as revealed by the April 10, 2015 written

agreement, Plaintiff's exhibit A, Count II the Amended Complaint fails to

state a cause of action.

THIRD DEFENSE - FAILURE TO STATE CAUSE OF ACTION

39. There is no independent cause of action for “unjust

enrichment.” The equitable doctrine of unjust enrichment gives rise to

the remedies of imposition of a constructive trust or an equitable lien, or

to subrogate a plaintiff to the rights of an obligee or lien holder. Trawick,

Fla. Prac. and Proc., Section 6-17.

40 Moreover, the remedies under the equitable theory of unjust

enrichment are not available where, as in the present case, there is an

adequate legal remedy under the valid contract claimed by Plaintiff.

Al. Photopia in fact makes no claim in Count III that it has no

remedy at law, and, in fact, attached the Agreement between the parties

5
as Exhibit A to its Amended Complaint. Nor does Plaintiff seek the

remedies of imposition of a constructive trust or an equitable lien, or to

subrogate a plaintiff to the rights of an obligee or lien holder.

AB. Plaintiff's claim for the return of dock rental payments made

to A Boat 4 Fun a benefit conferred under its Agreement is not permitted

under Florida law.

43. Photopia’s claim against A Boat 4 Fun for unjust enrichment

is fatally defective and fails to state a cause of action.

FOURTH DEFENSE - SET OFF
44, To the extent that Plaintiff may have suffered damages, such

damage amount should be set off in an amount to be proven by A Boat 4

Fun to compensate A Boat 4 Fun for damages to its docking facility

caused by the negligence of Plaintiff.
FIFTH DEFENSE - SET OFF
45. To the extent that Plaintiff may have suffered damages, such

damage amount should be set off in an amount to be proven by A Boat 4

Fun to compensate a A Boat 4 Fun for damages to its docking facility

caused by the breach of contract of Plaintiff.

SIXTH DEFENSE - BREACH OF CONTRACT
46. A Boat 4 Fun adopts and realleges the facts set forth in

paragraphs | though 10 and 16 through 20 of the Counterclaims, infra.

RESERVATION OF RIGHT TO AMEND

47. A Boat 4 Fun reserves the right to raise and assert all other

additional affirmative defenses that may become known to A Boat 4 Fun

or its attorney from the date of this pleading to the time this cause is

tried.
COUNTERCLAIMS

COUNTER-PLAINTIEFF, A BOAT 4 FUN, INC. (hereinafter “A Boat 4

Fun”), by and through its undersigned attorney, file this its counterclaims

against Counter-Defendants, PHOTOPIA - STUDIOS INC. (hereinafter

“Photopia”), and CHRISTIAN KOLM (hereinafter “Mr. Kolm”) and

states:

FACTS THAT ENTITLE COUNTER-PLAINTIFF TO RELIEF
1 At all times material hereto, Photopia was the owner of a

forty (40) food vessel that is described in paragraph 4 of its Amended.

Complaint (hereinafter the “Vessel”),
22 At all times material hereto, Mr. Kolm was the sole officer

and director of Photopia.

3 On April 10, 2015, Photopia and A Boat 4 Fun entered into an

agreement for dockage of the vessel at the A Boat 4 Fun facility in Key

Largo, Florida (hereinafter the “Agreement”). A copy of the Agreement is

attached as Exhibit A to the Amended Complaint.

4 The Vessel, the subject of Photopia’s baseless allegations,

was docked, pursuant to the Agreement, at A Boat 4 Fun’s boatyard prior

to the landfall of Hurricane Irma in September of 2017.

5 As a result of the hurricane force winds and the massive

storm surge, the Vessel, improperly moored and secured by Photopia and

Mr. Kolm, sank at the dock and caused serious damages to A Boat 4

Fun’s dock structures and pilings.

6. Upon inspection, it was determined that the damages to A

Boat 4 Fun’s dock structures and pilings exceeded Fifteen Thousand

Dollars ($15,000.00)
t At all times material hereto, Photopia and Mr. Kolm knew or

should have known that, pursuant to paragraph 11 of the Agreement,

Photopia had a duty and was required to properly moor and secure the

Vessel prior to the landfall of Hurricane Irma in September of 2017.

8. At all times material hereto, Photopia and Mr. Kolm knew or

should have known that, pursuant to paragraph 11 of the Agreement,

Photopia had a duty and was required to provide A Boat 4 Fun, well in

advance of the landfall of the approaching hurricane, with four (4), forty

(40) foot long aluminum beams to allow A Boat 4 Fun to remove the

Vessel from the water in anticipation of the approaching hurricane,

without causing damage to the Vessel.

9 As a direct and proximate result of and negligent failure of

and breach of duty by Photopia and Mr. Kolm to properly moor and

secure the Vessel prior to the landfall of Hurricane Irma in September of

2017, A Boat 4 Fun’s dock structures and pilings suffered damages that

exceeded Fifteen Thousand Dollars ($15,000.00).

10. As a direct and proximate result of the negligent failure of

and negligent failure of and breach of duty by Photopia and Mr. Koln to

provide A Boat 4 Fun, well in advance of the landfall of the approaching

hurricane, with four (4), forty (40) foot long aluminum beams to allow A

Boat 4 Fun to remove the Vessel from the water in anticipation of the

approaching hurricane, A Boat 4 Fun’s dock structures and pilings

suffered damages that exceeded Fifteen Thousand Dollars ($15,000.00)

COUNT I - NEGLIGENCE BY PHOTOPIA
TA. A Boat 4 Fun adopts and re-alleges the facts set forth in

paragraphs 1 through 10 of the Counterclaims, as if fully set forth herein.
8
12. As a direct and proximate result of and negligent failure of

and breach of duty by Photopia, A Boat 4 Fun suffered damages that

exceeded Fifteen Thousand Dollars ($15,000.00).

WHEREFORE, Counter-Plaintiff, A BOAT 4 FUN, INC., demands

judgment against Counter-Defendant, PHOTOPIA - STUDIOS INC., for

compensatory and special damages, plus costs, prejudgment interest, and

demands a trial by jury.

COUNT II - NEGLIGENCE BY MR. KOLM

13. A Boat 4 Fun adopts and re-alleges the facts set forth in
paragraphs 1 through 10 of the Counterclaims, as if fully set forth herein.

14. As a direct and proximate result of and negligent failure of

and breach of duty by Mr. Kolm, A Boat 4 Fun suffered damages that

exceeded Fifteen Thousand Dollars ($15,000.00).

WHEREFORE, Counter-Plaintiff, A BOAT 4 FUN, INC., demands

judgment against Counter-Defendant, CHRISTIAN KOLM, for

compensatory and special damages, plus costs, prejudgment interest, and.

demands a trial by jury.

COUNT III - BREACH OF CONTRACT
15. A Boat 4 Fun adopts and re-alleges the facts set forth in
paragraphs 1 through 10 of the Counterclaims, as if fully set forth herein.

16. Pursuant to the terms of the Agreement, Photopia is

responsible for any damages caused by Photopia or its Vessel to A Boat 4

Fun’s dock structures and pilings.

17. In material breach of the Agreement, Photopia has refused

and continues to refuse to pay for the damages caused by its Vessel to A

Boat 4 Fun’s dock structures and pilings.
9
18. A Boat 4 Fun has performed all conditions precedent to the

full performance of the Agreement or such conditions have occurred or

been waived.

19. Pursuant to the terms of the Agreement, A Boat 4 Fun is

entitled to an award of its attorney fees and costs in this action.

20. A Boat 4 Fun has retained the undersigned counsel and
agreed to pay him a reasonable attorney's fee for his services in this

matter.

WHEREFORE, Counter-Plaintiff, A BOAT 4 FUN, INC., demands

judgment against Counter-Defendant, PHOTOPIA - STUDIOS INC., for

compensatory damages, an award of attorney fees, plus costs,

prejudgment interest, and demands a trial by jury.

I HEREBY CERTIFY that a true and correct copy of the foregoing

was clectronically filed with the Clerk of Court using the Florida E-Filing

Portal system, and further served via E-Filing Portal upon any and all

active Florida E-Filing Portal system participants in the above-styled case

including: Douglas D. Stratton, Esquire, 407 Lincoln Road, Suite 2A,

Miami Beach, Florida 33139, douglas@srlawfirm.com; on this 18th day of

June 2019.

JOHN A. JABRO, ESQUIRE
Attorney for Defendant/
Counter-Plaintiff
90311 Overseas Highway, Suite B
Tavernier, Florida 83070
Email: jjabro@aol.com
keyslegal@aol.com
(805) 852-9233
Florida Bar No. 864452

/s/ JOHN A. JABRO

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Case Info

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Timothy Koenig Track Judge’s New Case

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Document Filed Date

June 18, 2019

Case Filing Date

November 26, 2018

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Answer: : Photopia - Studios Inc. vs A BOAT 4 FUN INC.

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