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Filing # 58842085 E-Filed 07/11/2017 12:38:43 PM
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
SUGARLOAF WI-FI, INC.,
Assignee of KEYS WI-FI, INC., a
Florida business corporation,
Plaintiff,
v. CASE NO:2017-CA-20-K
SUGARLOAF VOLUNTEER FIRE DEPARTMENT,
INC., a not for profit Florida corporation,
Defendant.
DEFENDANT'S MOTION TO AMEND AFFIRMATIVE DEFENSES
Pursuant to Rule 1.190, Fla. R. Civ. P., Defendant, SUGARLOAF VOLUNTEER
FIRE DEPARTMENT., moves to amend the Answer and Affirmative Defenses, dated May 19,
2017, in accordance with the attached proposed Amended Answer and Affirmative Defenses.
MEMORANDUM OF LAW
Article I, § 24 (b) of the Florida Constitution and § 286.011, Fla. Stat, require any
authority of a county to comply with the public notice and open meeting requirements of the
Sunshine Law.
Defendant has been acting on behalf of a public agency and is therefore subject to the
Sunshine Law. Schwartzman v Merritt Island Volunteer Fire Department, 352 So. 2d 1230
(1977); Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857 (Fla. 3rd DCA
1994).1
1 See also,Op. Att'y Gen. Fla. 2004-32
The mere showing of a Sunshine Law violation renders final government action void ab
initio. Monroe County, 647 So. 2d at 860.
The alleged lease between Defendant and Plaintiff was entered into without Sunshine
Law compliance. Accordingly, the lease is void ab initio.
WHEREFORE, Defendant respectfully requests that the Court grant the Motion herein
and allow the proposed amended Answer and Affirmative Defenses as attached to stand over as
Defendant's Amended Answer and Affirmative Defenses as of the date of the Order granting the
Motion herein.
Respectfully submitted,
/s/ Lee Robert Rohe, Esq.. P.A.
Attorney for Defendant
Post Office Box 420259
Summerland Key, Fl 33042
(305) 745-2254/745-4075
Florida Bar No: 271365
Email: lniaw@bellsouth.net
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
on July 113 2017 via Electronic Transmission to John Marston, Esq. at
marston@keywestlaw.net, iulie@Jkeywestlaw.net and eservice@keywestlaw.net.
/s/ Lee Robert Rohe. Esq. P.A.
IN THE CIRCUIT COURT OF THE 16™ JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
SUGARLOAF WI-FI, INC.,
Assignee of KEYS WI-FI, INC., a
Florida business corporation,
Plaintiff,
v. CASE NO:2017-CA-20-K
SUGARLOAF VOLUNTEER FIRE DEPARTMENT,
INC., a not for profit Florida corporation,
Defendant.
DEFENDANT'S AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO
AMENDED COMPLAINT
COMES NOW, Defendant, SUGARLOAF VOLUNTEER FIRE DEPARTMENT,
(hereafter "SLVFD"), by and through its undersigned attorney, who files its Answer by
corresponding paragraph and Affirmative Defenses as follows:
1. Admitted as to the first sentence. Denied as to the second sentence which states that
SWF has standing to bring this action as assignee of Keys Wi-Fi, Inc.
2. Admitted.
3. Without Knowledge.
4. Without Knowledge.
5. Without Knowledge.
6. Admitted.
7. Denied as to the first sentence. Admitted that Exhibits A and B are attached but
Denied otherwise as to the second sentence.
8. Denied.
9. Denied.
10. Denied.
11. Without Knowledge.
12. Without Knowledge.
13. Denied as to the first sentence. Denied that Exhibit C is attached.
14. Defendant incorporates its responses to paragraph 4 through 13 as if fully set forth
herein.
15. Without Knowledge.
16. Without Knowledge.
17. Defendant incorporates its responses to paragraph 4 through 13 as if fully set forth
herein.
18. Without Knowledge.
19. Defendant incorporates by reference paragraphs 4 through 13 as if fully set forth
herein.
20. Denied.
21. Denied.
22. Denied.
23. Defendants incorporates by reference paragraphs 4 through 22 as if fully set forth
herein.
24. Denied.
25. Denied.
AFFIRMATIVE DEFENSES
FIRST DEFENSE - FAILURE OF CONSIDERATION
No consideration was recited or paid by Plaintiff to Defendant for the alleged Option
Contract.
SECOND DEFENSE - LACK OF EXECUTION
The Option Contract was not executed by the Defendant. There can be no breach of the
lease without the formation of a valid Option Contract and Lease.
THIRD DEFENSE - ADEQUATE REMEDY AT LAW
Plaintiff is suing under an alleged contract or lease and claims monetary damages for
breach of lease. Injunctive relief cannot be granted when Plaintiff has pled an adequate remedy
at law.
FOURTH DEFENSE - LEASE NOT CAPABLE OF SPECIFIC PERFORMANCE
Specific performance is not an available remedy where an adequate remedy at law exists.
FIFTH DEFENSE - THE OPTION AND LEASE LACK DEFINITENESS
At the time the Option and Lease were signed on November 4, 2014., the Option and
Lease did not describe the property to be leased. The Option and Lease lacked definiteness and
particularity for lack of a legal description; therefore, the Option and Lease never came into
existence.
SIXTH DEFENSE - THE LEASE IS VOW ABINITIO
Defendant is subject to the Florida Sunshine Law. Under Florida }s Sunshine Law, the
alleged lease is void ab initiofor the lack of compliance with public notice and open meeting law
requirements.
WHEREFORE, the so-called Option and Lease are void ab initio under Florida
Sunshine Law and the lease cannot be enforced through specific performance. Nor did
Defendant have any obligations under the invalid Option and Lease. Defendant requests that the
Court award costs and attorney's fees and such other relief as deemed appropriate by the Court.
/s/ Lee Robert Rohe, Esq.. P.A.
Attorney for Defendant
Post Office Box 420259
Summerland Key, Fl 33042
(3 05) 745-2254/745-4075
Florida Bar No: 271365
Email: lrrlaw@bellsouth.net
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
on July 11, 2017 via Electronic Transmission to John Marston, Esq. at
marston@keywestlaw.net, julie@keywestlaw.net and eservice@keywestlaw.net.
/s/ Lee Robert Rohe. Esq. P.A.
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Filing # 58842085 E-Filed 07/11/2017 12:38:43 PM IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA SUGARLOAF WI-FI, INC., Assignee of KEYS WI-FI, INC., a Florida business corporation, Plaintiff, v. CASE NO:2017-CA-20-K SUGARLOAF VOLUNTEER FIRE DEPARTMENT, INC., a not for profit Florida corporation, Defendant. DEFENDANT'S MOTION TO AMEND AFFIRMATIVE DEFENSES Pursuant to Rule 1.190, Fla. R. Civ. P., Defendant, SUGARLOAF VOLUNTEER FIRE DEPARTMENT., moves to amend the Answer and Affirmative Defenses, dated May 19, 2017, in accordance with the attached proposed Amended Answer and Affirmative Defenses. MEMORANDUM OF LAW Article I, § 24 (b) of the Florida Constitution and § 286.011, Fla. Stat, require any authority of a county to comply with the public notice and open meeting requirements of the Sunshine Law. Defendant has been acting on behalf of a public agency and is therefore subject to the Sunshine Law. Schwartzman v Merritt Island Volunteer Fire Department, 352 So. 2d 1230 (1977); Monroe County v. Pigeon Key Historical Park, Inc., 647 So. 2d 857 (Fla. 3rd DCA 1994).1 1 See also,Op. Att'y Gen. Fla. 2004-32 The mere showing of a Sunshine Law violation renders final government action void ab initio. Monroe County, 647 So. 2d at 860. The alleged lease between Defendant and Plaintiff was entered into without Sunshine Law compliance. Accordingly, the lease is void ab initio. WHEREFORE, Defendant respectfully requests that the Court grant the Motion herein and allow the proposed amended Answer and Affirmative Defenses as attached to stand over as Defendant's Amended Answer and Affirmative Defenses as of the date of the Order granting the Motion herein. Respectfully submitted, /s/ Lee Robert Rohe, Esq.. P.A. Attorney for Defendant Post Office Box 420259 Summerland Key, Fl 33042 (305) 745-2254/745-4075 Florida Bar No: 271365 Email: lniaw@bellsouth.net CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished on July 113 2017 via Electronic Transmission to John Marston, Esq. at marston@keywestlaw.net, iulie@Jkeywestlaw.net and eservice@keywestlaw.net. /s/ Lee Robert Rohe. Esq. P.A. IN THE CIRCUIT COURT OF THE 16™ JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA SUGARLOAF WI-FI, INC., Assignee of KEYS WI-FI, INC., a Florida business corporation, Plaintiff, v. CASE NO:2017-CA-20-K SUGARLOAF VOLUNTEER FIRE DEPARTMENT, INC., a not for profit Florida corporation, Defendant. DEFENDANT'S AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO AMENDED COMPLAINT COMES NOW, Defendant, SUGARLOAF VOLUNTEER FIRE DEPARTMENT, (hereafter "SLVFD"), by and through its undersigned attorney, who files its Answer by corresponding paragraph and Affirmative Defenses as follows: 1. Admitted as to the first sentence. Denied as to the second sentence which states that SWF has standing to bring this action as assignee of Keys Wi-Fi, Inc. 2. Admitted. 3. Without Knowledge. 4. Without Knowledge. 5. Without Knowledge. 6. Admitted. 7. Denied as to the first sentence. Admitted that Exhibits A and B are attached but Denied otherwise as to the second sentence. 8. Denied. 9. Denied. 10. Denied. 11. Without Knowledge. 12. Without Knowledge. 13. Denied as to the first sentence. Denied that Exhibit C is attached. 14. Defendant incorporates its responses to paragraph 4 through 13 as if fully set forth herein. 15. Without Knowledge. 16. Without Knowledge. 17. Defendant incorporates its responses to paragraph 4 through 13 as if fully set forth herein. 18. Without Knowledge. 19. Defendant incorporates by reference paragraphs 4 through 13 as if fully set forth herein. 20. Denied. 21. Denied. 22. Denied. 23. Defendants incorporates by reference paragraphs 4 through 22 as if fully set forth herein. 24. Denied. 25. Denied. AFFIRMATIVE DEFENSES FIRST DEFENSE - FAILURE OF CONSIDERATION No consideration was recited or paid by Plaintiff to Defendant for the alleged Option Contract. SECOND DEFENSE - LACK OF EXECUTION The Option Contract was not executed by the Defendant. There can be no breach of the lease without the formation of a valid Option Contract and Lease. THIRD DEFENSE - ADEQUATE REMEDY AT LAW Plaintiff is suing under an alleged contract or lease and claims monetary damages for breach of lease. Injunctive relief cannot be granted when Plaintiff has pled an adequate remedy at law. FOURTH DEFENSE - LEASE NOT CAPABLE OF SPECIFIC PERFORMANCE Specific performance is not an available remedy where an adequate remedy at law exists. FIFTH DEFENSE - THE OPTION AND LEASE LACK DEFINITENESS At the time the Option and Lease were signed on November 4, 2014., the Option and Lease did not describe the property to be leased. The Option and Lease lacked definiteness and particularity for lack of a legal description; therefore, the Option and Lease never came into existence. SIXTH DEFENSE - THE LEASE IS VOW ABINITIO Defendant is subject to the Florida Sunshine Law. Under Florida }s Sunshine Law, the alleged lease is void ab initiofor the lack of compliance with public notice and open meeting law requirements. WHEREFORE, the so-called Option and Lease are void ab initio under Florida Sunshine Law and the lease cannot be enforced through specific performance. Nor did Defendant have any obligations under the invalid Option and Lease. Defendant requests that the Court award costs and attorney's fees and such other relief as deemed appropriate by the Court. /s/ Lee Robert Rohe, Esq.. P.A. Attorney for Defendant Post Office Box 420259 Summerland Key, Fl 33042 (3 05) 745-2254/745-4075 Florida Bar No: 271365 Email: lrrlaw@bellsouth.net CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished on July 11, 2017 via Electronic Transmission to John Marston, Esq. at marston@keywestlaw.net, julie@keywestlaw.net and eservice@keywestlaw.net. /s/ Lee Robert Rohe. Esq. P.A.