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Answer and Affirmative Defenses

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT

IN AND FOR MARION COUNTY, FLORIDA

 

SAM H. REDACTED,

Plaintiff,

 

v. CASE NO.

 

REDACTED CLIENT,

Defendant.

____________________________________/

 

FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT

Defendant files the following answer and affirmative defenses to Plaintiff’s original complaint:

1. Without knowledge, therefore denied.

2. Admitted that Defendant is a Florida corporation.

3. Subject matter jurisdiction is admitted.

4. Admitted that venue is proper.

5. Denied that this Plaintiff has a contract with the Defendant. However, the contract that exists is attached to Plaintiff’s complaint and Defendant admits that is a true and correct copy of the same.

6. Denied there is a valid assignment of any interest. See exhibit B to the Complaint, paragraph 4.

7. Denied.

8. Denied.

9. Denied.

10. Denied.

11. Denied.

12. Denied.

13. Denied.

14. Denied.

15. Denied.

16. Defendant’s responses are similarly incorporated.

17. Denied.

18. Denied.

19. Denied.

20. Denied.

21. Admitted that Defendant served its Notice of Contest of lien as described.

22. Denied.

23. Denied.

24. Without knowledge, therefore denied.

25. Denied.

26. Defendant’s responses are similarly incorporated.

27. Denied.

28. Denied.

29. Defendant’s responses are similarly incorporated.

30. Denied.

31. Denied.

32. Denied.

33. Denied.

34. Denied.

35. Denied.

36. Denied.

37. Denied.

37. Denied.

38. Without knowledge, therefore denied.

All allegations not specifically admitted are denied.

Wherefore, Defendant seeks its attorneys’ fees and costs for having to defend this action, declaratory judgment that the Plaintiff’s claimed lien (and any other recordings) is invalid, and otherwise litigate the claimed lien and the matters raised in the Compliant.

Affirmative Defenses

1. The contract attached as Exhibit B to the Complaint cannot be assigned without written consent of the Defendant. Written consent was never provided (see paragraph 4 of the General Terms).

2. Defendant provided a notice of lien contest and the owner of the lien never enforced the same within 60 days thereof. Therefore, there is no valid lien.

3. This Plaintiff was not in privity with the Defendant and no notice to owner was served.

4. The document attached as Exhibit “B” is not a contract between Plaintiff and Defendant.

5. Plaintiff did not perform any services for Defendant.

6. Plaintiff never received consent or authorization from Defendant to perform work.

7. Plaintiff failed to segregate its records to demonstrate which work performed was extra or additional work and which work performed was contractual in nature.

8. Defendant is entitled to a set-off and/or recoupment due to amounts owed to it.

9. The Complaint fails to state a cause of action because no assignment is attached thereto but the basis of the case relies thereon.

10. The alleged construction lien is not owned by the Plaintiff or exaggerated, and thus fraudulent resulting in entitlement to Defendant for its attorneys’ fees. Plaintiff’s counsel knows or should have known that the amount of the claimed lien is (at a minimum) exaggerated.

11. Even if a contract existed between Plaintiff and Defendant, Plaintiff (or the contract responsible there under) breached it first and thus Defendant’s obligations there under are lessened, waived or voided.

12. Any supposed oral contract was not alleged with specificity and thus not valid.

13. Plaintiff conferred no actual benefit on Defendant.

14. Plaintiff cannot use unjust enrichment to avoid the terms of the contract attached as Exhibit B.

15. Plaintiff has unclean hands. For example, Plaintiff has failed to provide a detailed accounting of amounts owed, how it is owed, and how that is calculated.

16. Payment. Plaintiff has been paid some or all of the sums claimed.

17. Plaintiff failed to join an indispensible party in interest (REDACTED of Marion County, LLC).

18. Defendant should be awarded attorneys’ fees for having to defend this action and requests the same.

19. Defendant demands a trial by jury, attorneys’ fees and costs for having to defend this action.

20. REDACTED of Marion County, LLC did not satisfy all conditions precedent to filing this lawsuit.

21. Neither Plaintiff nor REDACTEDof Marion County, LLC satisfied the Section 8 of the Contract (Disputes) prior to filing this lawsuit.

22. REDACTED of Marion County, LLC failed to file a claim of lien in a timely and appropriate manner.

23. REDACTED of Marion County, LLC never provided a final affidavit and release of lien.

Defendant demands a trial by jury on all issues so triable.

Dated this February 22, 2012.

 

 

/s/ Michael Massey ______________________

Michael Massey, Esq.

Florida Bar No. 153680

Massey & Duffy, PLLC

855 E. University Ave.

Gainesville, FL 32601

(352) 505 8900

 

CERTIFICATE OF SERVICE

A true and correct copy was furnished by US mail this February 22, 2012 to the following recipient(s):

Massey & Duffy

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