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Filing # 134936817 E-Filed 09/20/2021 04:32:46 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
FRANCES BARONE & GABRIEL BARONE,
Plaintiffs,
vs. Case No. 2017-CA-003882-O
ASHFORD TRS WQ LLC, a foreign limited
liability company d/b/a WORLD QUEST
RESORT a/k/a WORLDQUEST ORLANDO
RESORT, ASHFORD WQ LICENSEE, LLC,
a foreign limited liability company, ASHFORD
TRS CORPORATION, a foreign profit
corporation, WQ HOTEL MANAGEMENT LLC,
a foreign limited liability company,
WORLDQUEST RESORT CONDOMINIUM
ASSOCIATION, INC., a Florida not for profit
corporation,
Defendants.
________________________________/
WQ HOTEL MANAGEMENT, LLC’S AMENDED ANSWER AND
AFFIRMATIVE DEFENSES TO WORLDQUEST RESORT
CONDOMINIUM ASSOCIATION, INC.’S CROSS-CLAIM
The Defendant, WQ HOTEL MANAGEMENT, LLC (hereinafter “Defendant”), hereby
responds to the cross-claims asserted by the Co-Defendant, WORLDQUEST RESORT
CONDOMINIUM ASSOCIATION, INC. (hereinafter “Cross-Claim”), and states as follows to the
correspondingly numbered allegations:
PARTIES
1. Admitted.
2. Admitted.
Page 1 of 7
JURISDICTION AND VENUE
3. The Defendant asserts its responses to the preceding allegations as if fully set forth
herein.
4. Admitted for jurisdictional purposes only, otherwise denied.
5. Admitted for jurisdictional purposes only, otherwise denied.
6. Admitted for jurisdictional purposes only, otherwise denied.
7. Admitted for jurisdictional purposes only, otherwise denied.
GENERAL ALLEGATIONS
8. The Defendant asserts its responses to the preceding allegations as if fully set forth
herein.
9. Admitted for jurisdictional purposes only, otherwise denied.
10. Admitted.
11. Admitted.
12. Admitted.
13. Admitted.
14. The Defendant is without knowledge and therefore denies the allegations in
Paragraph 14.
15. Admitted.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
20. Denied.
Page 2 of 7
21. Denied.
22. Denied.
23. Denied.
24. Denied.
COUNT I: BREACH OF CONTRACT
25. The Defendant asserts its responses to the preceding allegations as if fully set forth
herein.
26. Admitted for jurisdictional purposes only, otherwise denied.
27. Admitted.
28. Denied.
29. Denied.
30. Denied.
COUNT II: CONTRACTUAL INDEMNIFICATION
31. The Defendant asserts its responses to the preceding allegations as if fully set forth
herein.
32. Admitted for jurisdictional purposes only, otherwise denied.
33. Admitted.
34. Denied.
35. Denied.
36. Denied.
COUNT II: COMMON LAW INDEMNIFICATION
Page 3 of 7
37. The Defendant asserts its responses to the preceding allegations as if fully set forth
herein.
38. Admitted for jurisdictional purposes only, otherwise denied.
39. Denied.
40. Denied.
41. Denied.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Defendant would state that the Defendant had no actual notice of the cause alleged in the
Cross-Claim and said alleged dangerous condition had not been in place long enough to impute
constructive knowledge of said cause to the Defendant.
SECOND AFFIRMATIVE DEFENSE
The Defendant asserts all provisions of Fla. Stat. §768.81 and the principles of law as
announced in Fabre v. Marin, as it may be responsible only for its percentage of fault, if any, as
compared to all other entities or persons who contributed to Plaintiffs’ claimed damages,
regardless of whether they have been or could have been joined as defendants. The Defendant
would assert that it is not responsible for fault in causing Plaintiffs’ injuries complained of and
upon information and belief, Plaintiff FRANCES BARONE’s alleged fall was caused or
contributed to by the negligence of the Co-Defendant, WORLDQUEST RESORT
CONDOMINIUM ASSOCIATION, INC.
THIRD AFFIRMATIVE DEFENSE
Page 4 of 7
The Defendant asserts all provisions of Fla. Stat. §768.0755 that are factually and legally
applicable herein. The Defendant avers that it made reasonable efforts to keep the premises free
from transitory foreign objects or substances. As a result, the Defendant is not liable to the Co-
Defendant, WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC., because the
Co-Defendant cannot prove that the Defendants acted negligently by failing to exercise reasonable
care in the maintenance, inspection, repair, warning, or mode of operation of the premises.
FOURTH AFFIRMATIVE DEFENSE
The Defendant would state that the Co-Defendant, WORLDQUEST RESORT
CONDOMINIUM ASSOCIATION, INC., had a duty to mitigate its damages in this matter, and
carelessly and negligently failed to do so, and the Defendant is not responsible for any damages
that reasonably could have been avoided by the Plaintiffs.
FIFTH AFFIRMATIVE DEFENSE
WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC.’s damages, if any,
are limited pursuant to the terms, provisions and conditions of the contracts, subcontracts,
agreements and warranty agreements between the Defendant and Co-Defendant. Furthermore, Co-
Defendant's claims are barred, in whole or in part, to the extent that Co-Defendant failed to meet
all conditions precedent to filing this action, including, but not limited to, limitations set forth in
the agreements between the parties and/or any failure to provide sufficient notice of defects and/or
an opportunity to cure alleged defects prior to initiating litigation.
SIXTH AFFIRMATIVE DEFENSE
Page 5 of 7
To the extent that Defendant's work is found to have been previously inspected, approved,
accepted (expressly or impliedly) and paid for by the Co-Defendant and/or its agents, employees,
representatives, assignees, and /or predecessor/successor in interest thereof, WORLDQUEST
RESORT CONDOMINIUM ASSOCIATION, INC.’s claims are barred by the principles of
release, estoppel, waiver and merger.
SEVENTH AFFIRMATIVE DEFENSE
The errors and/or defects asserted in the Cross-Claim were caused by intervening or
superseding conditions, including, but not limited to, work, construction, and/or alterations by
WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC. or third parties, named or
unnamed.
EIGHTH AFFIRMATIVE DEFENSE
WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC.’s claims are barred,
in whole or in part, by the applicable statutes of limitations.
INCORPORATION OF DEFENSES
The Defendant incorporates all defenses asserted by their current and future co-
defendant(s) in this action as if fully set forth herein to the fullest extent they are applicable to the
Defendant or the claims asserted against the Defendant.
RESERVATION OF DEFENSES
The Defendant expressly reserves the right to amend and/or add additional defenses and
affirmative defenses as discovery and investigation continues.
Page 6 of 7
DEMAND FOR JURY TRIAL
The Defendant demands a trial by jury on all issues so triable.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
via E-Mail this 20th day of September, 2021, to the following: Anthony J. Manganiello, III, Esq.,
Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., amanganiello@icardmerrill.com,
lkarpova@icardmerrill.com, rgrehk@icardmerrill.com; Brian W. Bennett, Esq., Bennett Legal
Group, P.A., brian@bennettlegalgroup.com, bonnie@bennettlegalgroup.com; Brett A. Marlowe,
Esq., Bennett Legal Group, P.A., brett@bennettlegalgroup.com, bonnie@bennettlegalgroup.com;
Patrick C. Howell, Esq., Becker & Poliakoff, P.A., phowell@beckerlawyers.com,
nspeth@beckerlawyers.com, orlefile@beckerlawyers.com.
_/s/ Carla M. Sabbagh______________
WILLIAM G.K. SMOAK
Florida Bar No.: 645028
CARLA M. SABBAGH
Florida Bar No.:72727
Smoak Trial Lawyers
320 W. Kennedy Blvd.
4th Floor
Tampa, FL 33606
(813) 221-1331 Telephone
(813) 223-7881 Facsimile
courtdocuments@smoaktriallawyers.com
Counsel for Ashford Defendants and WQ
Hotel Management, LLC
Page 7 of 7
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Filing # 134936817 E-Filed 09/20/2021 04:32:46 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA FRANCES BARONE & GABRIEL BARONE, Plaintiffs, vs. Case No. 2017-CA-003882-O ASHFORD TRS WQ LLC, a foreign limited liability company d/b/a WORLD QUEST RESORT a/k/a WORLDQUEST ORLANDO RESORT, ASHFORD WQ LICENSEE, LLC, a foreign limited liability company, ASHFORD TRS CORPORATION, a foreign profit corporation, WQ HOTEL MANAGEMENT LLC, a foreign limited liability company, WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC., a Florida not for profit corporation, Defendants. ________________________________/ WQ HOTEL MANAGEMENT, LLC’S AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC.’S CROSS-CLAIM The Defendant, WQ HOTEL MANAGEMENT, LLC (hereinafter “Defendant”), hereby responds to the cross-claims asserted by the Co-Defendant, WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC. (hereinafter “Cross-Claim”), and states as follows to the correspondingly numbered allegations: PARTIES 1. Admitted. 2. Admitted. Page 1 of 7 JURISDICTION AND VENUE 3. The Defendant asserts its responses to the preceding allegations as if fully set forth herein. 4. Admitted for jurisdictional purposes only, otherwise denied. 5. Admitted for jurisdictional purposes only, otherwise denied. 6. Admitted for jurisdictional purposes only, otherwise denied. 7. Admitted for jurisdictional purposes only, otherwise denied. GENERAL ALLEGATIONS 8. The Defendant asserts its responses to the preceding allegations as if fully set forth herein. 9. Admitted for jurisdictional purposes only, otherwise denied. 10. Admitted. 11. Admitted. 12. Admitted. 13. Admitted. 14. The Defendant is without knowledge and therefore denies the allegations in Paragraph 14. 15. Admitted. 16. Denied. 17. Denied. 18. Denied. 19. Denied. 20. Denied. Page 2 of 7 21. Denied. 22. Denied. 23. Denied. 24. Denied. COUNT I: BREACH OF CONTRACT 25. The Defendant asserts its responses to the preceding allegations as if fully set forth herein. 26. Admitted for jurisdictional purposes only, otherwise denied. 27. Admitted. 28. Denied. 29. Denied. 30. Denied. COUNT II: CONTRACTUAL INDEMNIFICATION 31. The Defendant asserts its responses to the preceding allegations as if fully set forth herein. 32. Admitted for jurisdictional purposes only, otherwise denied. 33. Admitted. 34. Denied. 35. Denied. 36. Denied. COUNT II: COMMON LAW INDEMNIFICATION Page 3 of 7 37. The Defendant asserts its responses to the preceding allegations as if fully set forth herein. 38. Admitted for jurisdictional purposes only, otherwise denied. 39. Denied. 40. Denied. 41. Denied. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Defendant would state that the Defendant had no actual notice of the cause alleged in the Cross-Claim and said alleged dangerous condition had not been in place long enough to impute constructive knowledge of said cause to the Defendant. SECOND AFFIRMATIVE DEFENSE The Defendant asserts all provisions of Fla. Stat. §768.81 and the principles of law as announced in Fabre v. Marin, as it may be responsible only for its percentage of fault, if any, as compared to all other entities or persons who contributed to Plaintiffs’ claimed damages, regardless of whether they have been or could have been joined as defendants. The Defendant would assert that it is not responsible for fault in causing Plaintiffs’ injuries complained of and upon information and belief, Plaintiff FRANCES BARONE’s alleged fall was caused or contributed to by the negligence of the Co-Defendant, WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC. THIRD AFFIRMATIVE DEFENSE Page 4 of 7 The Defendant asserts all provisions of Fla. Stat. §768.0755 that are factually and legally applicable herein. The Defendant avers that it made reasonable efforts to keep the premises free from transitory foreign objects or substances. As a result, the Defendant is not liable to the Co- Defendant, WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC., because the Co-Defendant cannot prove that the Defendants acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the premises. FOURTH AFFIRMATIVE DEFENSE The Defendant would state that the Co-Defendant, WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC., had a duty to mitigate its damages in this matter, and carelessly and negligently failed to do so, and the Defendant is not responsible for any damages that reasonably could have been avoided by the Plaintiffs. FIFTH AFFIRMATIVE DEFENSE WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC.’s damages, if any, are limited pursuant to the terms, provisions and conditions of the contracts, subcontracts, agreements and warranty agreements between the Defendant and Co-Defendant. Furthermore, Co- Defendant's claims are barred, in whole or in part, to the extent that Co-Defendant failed to meet all conditions precedent to filing this action, including, but not limited to, limitations set forth in the agreements between the parties and/or any failure to provide sufficient notice of defects and/or an opportunity to cure alleged defects prior to initiating litigation. SIXTH AFFIRMATIVE DEFENSE Page 5 of 7 To the extent that Defendant's work is found to have been previously inspected, approved, accepted (expressly or impliedly) and paid for by the Co-Defendant and/or its agents, employees, representatives, assignees, and /or predecessor/successor in interest thereof, WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC.’s claims are barred by the principles of release, estoppel, waiver and merger. SEVENTH AFFIRMATIVE DEFENSE The errors and/or defects asserted in the Cross-Claim were caused by intervening or superseding conditions, including, but not limited to, work, construction, and/or alterations by WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC. or third parties, named or unnamed. EIGHTH AFFIRMATIVE DEFENSE WORLDQUEST RESORT CONDOMINIUM ASSOCIATION, INC.’s claims are barred, in whole or in part, by the applicable statutes of limitations. INCORPORATION OF DEFENSES The Defendant incorporates all defenses asserted by their current and future co- defendant(s) in this action as if fully set forth herein to the fullest extent they are applicable to the Defendant or the claims asserted against the Defendant. RESERVATION OF DEFENSES The Defendant expressly reserves the right to amend and/or add additional defenses and affirmative defenses as discovery and investigation continues. Page 6 of 7 DEMAND FOR JURY TRIAL The Defendant demands a trial by jury on all issues so triable. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via E-Mail this 20th day of September, 2021, to the following: Anthony J. Manganiello, III, Esq., Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., amanganiello@icardmerrill.com, lkarpova@icardmerrill.com, rgrehk@icardmerrill.com; Brian W. Bennett, Esq., Bennett Legal Group, P.A., brian@bennettlegalgroup.com, bonnie@bennettlegalgroup.com; Brett A. Marlowe, Esq., Bennett Legal Group, P.A., brett@bennettlegalgroup.com, bonnie@bennettlegalgroup.com; Patrick C. Howell, Esq., Becker & Poliakoff, P.A., phowell@beckerlawyers.com, nspeth@beckerlawyers.com, orlefile@beckerlawyers.com. _/s/ Carla M. Sabbagh______________ WILLIAM G.K. SMOAK Florida Bar No.: 645028 CARLA M. SABBAGH Florida Bar No.:72727 Smoak Trial Lawyers 320 W. Kennedy Blvd. 4th Floor Tampa, FL 33606 (813) 221-1331 Telephone (813) 223-7881 Facsimile courtdocuments@smoaktriallawyers.com Counsel for Ashford Defendants and WQ Hotel Management, LLC Page 7 of 7