Complaint and SLohA Answer...and Frd Answer

Frd O'N eel (Attny), Attorney has answered SLohA and here's an accounting of that discussion so far.

The first part is SLohA's affirmative defenses to The Complaint and the second part is Frd's answer refuting those affirmative defenses.   First, a definition of an affirmative defense:

The plaintiff (S u e) has the burden of proof as to her original claims in the complaint, meaning that she is responsible for demonstrating to the court that those claims are true. However, the defendant (SLohA) has the burden of proof as to any affirmative defenses it raises.

1. SLohA says that S u e has not incurred any damages or losses as a result of any allegations levied in this Complaint, and accordingly, she is not entitled to any award of damages in this action. And to any extent S u e is found to have incurred any damages, S u e failed to mitigate same and, therefore, is not entitled to relief in this action.

Frd Said:
In its first affirmative defense, SLohA fails to allege what S u e has allegedly failed to do to mitigate her damages. Under Florida law, the requirement of “certainty” applies just as much to pleading a defense as to pleading a cause of action. Agrofollajes, S.A. v. E.I. DuPont de Nemours & Company, 48 So.3d 976, 996 (Fla. 3d DCA 2010) (“Defenses are required to be pled with as much specificity as are claims.”); see also, 40 Fla.Jur.2d PLEADINGS, Section 31 (“Certainty”) (“The requirement of certainty will be insisted on in the pleading of a defense, just as in the statement of a claim. A plaintiff is as much entitled to know the ground on which it is claimed he or she should not recover as is a defendant to be apprised, with reasonable certainty, of the basis of the plaintiff’s claim.”). Therefore, at a minimum, SLohA is required to state what actions it argues S u e failed to take in order to limit her damages. For that reason, SLohA’s first affirmative defense fails to state a legal defense to any of the claims in Plaintiff’s complaint.

2.  SLohA says that S u e failed to state a cause of action for slander of title, for declaratory relief under Fla. Stat. s. 86.011, Fla. Stat. s. 65.011, Fla. Stat. s. 65.021, or Fla. Stat. s. 712.01, et. seq. and therefore, this action is due to be dismissed.

Frd Said:
b. Rule 1.140(b), Fla.R.Civ.P., states that the grounds of the defense of failure to state a cause of action and the substantial matters of law intended to be argued are to be stated specifically and with particularity in the responsive pleading.   Because SLohA’s second affirmative defense fails to comply with that rule, it fails to state a legal defense to any of the claims in Plaintiff’s complaint.

3.  S u e failed to comply with the conditions precedent to filing an action for declaratory relief and/or for filing an action pursuant to Chapters 65, 86, or 712, Florida Statutes.

Frd Said:
Rule 1.120(c) (“Conditions Precedent”), Fla.R.Civ.P., states that a denial of performance or occurrence of a condition precedent sH all be made specifically and with particularity. Because SLohA’s third affirmative defense fails to comply with that rule, it fails to state a legal defense to any of the claims in Plaintiff’s complaint.

4.  SLohA says any documents or materials recorded in Public Records by Defendant SLohA with regard to Plaintiff's lot are legal, truthful and applicable to the subject policy, and as such, Plaintiffs title has not been slandered.

Frd Said:
SLohA’s fourth affirmative defense is merely a denial of allegations in Plaintiff’s complaint. As such it fails to state a legal defense to any of the claims in Plaintiff’s complaint.

5. SLohA says S u e's action is barred by the applicable statute(s) of limitations, which may include but are not necessarily limited to Florida Statute ss. 95.12, 95.231, and 95.11.

Frd Said:
As to SLohA’s fifth affirmative defense, Plaintiff denies that any of the claims in her complaint are barred by applicable statutes of limitation.

6. S u e's action is barred by the doctrine of laches.

Frd Said:
“Laches” does not constitute a legal defense to any of the claims in Plaintiff’s complaint. Therefore, SLohA’s sixth affirmative defense fails to state a legal defense to any of the claims in Plaintiff’s complaint.

7. S u e waived any entitlement to bring the causes of action raised in her Complaint when she purchased the subject property with the known, and publicly recorded, interest of SLohA upon that property. The title record disclosed same.

Frd Said:
In its seventh affirmative defense, SLohA fails to allege sufficient ultimate facts to show the essential elements of “waiver” such as would bar any of the claims in Plaintiff’s complaint. See, e.g., GodWyn v. Blu Murray Insurance Agency, Inc., 939 So.2d 1098, 1104 (Fla. 5th DCA 2006) (“The elements of waiver are: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit which may be waived; (2) the actual or constructive knowledge of the right; and (3) the intention to relinquish the right.”). In particular, SLohA fails to allege ultimate facts showing how Plaintiff’s purchase of her lot prior to the April 5, 2013 recording of the “Notice of Preservation of S-bag Lake Owners Association’s Covenants and Restrictions” constitutes a waiver of her right to contest the validity of that document. For these reasons, SLohA’s seventh affirmative defense fails to state a legal defense to any of the claims in Plaintiffs’ complaint.

8.  SLohA says all documents recorded by SLohA, addressed in Plaintiff's Complaint, were legal, accurate and properly recorded by SLohA pursuant to Chapter 720. Furthermore, SLohA acted in accordance with its fiduciary duties in recording same.

Frd Said:
SLohA’s eighth affirmative defense is merely a denial of allegations in Plaintiff’s complaint. As such it fails to state a legal defense to any of the claims in Plaintiff’s complaint.

9. SLohA says there is no justicable controversy to be determined in this action, and therefore, a count for declaratory relief pursuant to Chapter 86 may not be maintained.

Frd Said:
SLohA’s ninth affirmative defense is merely a denial of allegations in Plaintiff’s complaint. As such it fails to state a legal defense to any of the claims in Plaintiff’s complaint.

10. SLohA says that, even assuming, arguendo, that the SLohA's Notice of Preservation filed in February 2013 is not upheld as a valid preservation, the 1986 Amended Declaration is still valid and enforceable, and applies to Plaintiff's lot.

Frd Said:
Based on the holding in Matissek v. Waller, 51 So.3d 625 (Fla. 2nd DCA 2011) and the fact that the 1986 Amended Declaration is not specifically identified by reference to official records book and page in any of the muniments of title within S u e’s chain of title, SLohA’s tenth affirmative defense fails to state a legal defense to any of the claims in Plaintiff’s complaint.

11. SLohA says all relevant actions taken by SLohA's Board of Directors were legal and appropriate pursuant to its obligations with respect to the Association and its members.

Frd Said:
SLohA’s eleventh affirmative defense is merely a denial of allegations in S u e’s complaint. As such it fails to state a legal defense to any of the claims in her complaint.

So, you can throw out Affirmative Defenses #4,5,6,8, 9 & 11 which all fail to state a legal defense and don't amount to a hill of beans.  That leaves Defense #1, #2 and #3 which are too general-defenses must be stated with specificity and certainty, Defense #7 fails to state the elements required for a waiver, and #10 which SLohA asserts the 1986 Amended Declaration is enforceable.  The dispute of facts of #10 are the "heart" of the controversy.