PLAINTIFFS MOTION TO STRIKE AFFIRMATIVE DEFENSES. Plaintiffs, CLARK L. DURPO, JR. ( Chip Durpo ) and CLARK L. DURPO ( Clark

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1 Filing # Electronically Filed 11/20/ :25:54 PM IN THE CIRCUIT COURT OF THE 20 TH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CLARK L. DURPO, JR. and CLARK L. DURPO, NO. 13 CA v. Plaintiffs, BELLA LAGO CONDOMINIUM AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., CASA MARINA ASSOCIATION, INC., CASA MARINA II CONDOMINIUM ASSOCIATION, INC., CASA MARINA III CONDOMINIUM ASSOCIATION, INC., HARBOUR POINTE CONDOMINIUM ASSOCIATION, INC., HIBISCUS POINTE CONDOMINIUM ASSOCIATION, INC., MANATEE BAY AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., ROYAL PELICAN ASSOCIATION, INC., SUNSET GULF CONDOMINIUM ASSOCIATION, INC., THE PALMS OF BAY BEACH CONDOMINIUM ASSOCIATION, INC., VALENCIA VILLAS AT BAY BEACH ASSOCIATION, INC., WATERSIDE I AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE II AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE III AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE IV AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE V AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE MANATEE BAY HOLDINGS, LLC, all Florida corporations, and SOUTH FLORIDA WATER MANAGEMENT DISTRICT, Defendants. / PLAINTIFFS MOTION TO STRIKE AFFIRMATIVE DEFENSES Plaintiffs, CLARK L. DURPO, JR. ( Chip Durpo ) and CLARK L. DURPO ( Clark Durpo ), collectively ( Plaintiffs or Durpos ) by and through their undersigned counsel hereby move this court to strike certain affirmative defenses raised by Defendants - 1 -

2 Associations, BELLA LAGO CONDOMINIUM AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., CASA MARINA ASSOCIATION, INC., CASA MARINA II CONDOMINIUM ASSOCIATION, INC., CASA MARINA III CONDOMINIUM ASSOCIATION, INC., HARBOUR POINTE CONDOMINIUM ASSOCIATION, INC., HIBISCUS POINTE CONDOMINIUM ASSOCIATION, INC., MANATEE BAY AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., ROYAL PELICAN ASSOCIATION, INC., SUNSET GULF CONDOMINIUM ASSOCIATION, INC., THE PALMS OF BAY BEACH CONDOMINUM ASSOCIATION, INC., VALENCIA VILLAS AT BAY BEACH ASSOCIATION, INC., WATERSIDE I AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE II AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE III AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., WATERSIDE IV AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., and WATERSIDE V AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., (collectively Defendant Associations ) in their Amended Answer and Affirmative Defenses, and, in support, state as follows: 1. The standard set out by the courts for reviewing the sufficiency of affirmative defenses is found in Zito v. Washington Federal Savings & Loan Association of Miami Beach, 318 So. 2d 175 (Fla. 3d DCA 1975), which requires certainty in the pleading of defenses. [T]he pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence. Id. A motion to strike is the counterpart of a motion to dismiss for failure to state a cause of action. Tampa - 2 -

3 Suburban Utilities Corp. v. Hillsborough County Aviation Auth., 195 So. 2d 568, 569 (Fla. 2d DCA 1967). 2. The standard applicable to pleading of a claim applies equally to the pleading of a defense. Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982). 3. Further, pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988); Bliss, 418 So. 2d at For the foregoing reasons, the following defenses fail to meet these pleading requirements. 5. The Defendant Associations Second Affirmative Defense must be stricken because if fails to allege a legally cognizable affirmative defense. This defense purports to allege the Defendant Associations entitlement to dump their surface waters onto the Durpos property. However, this defense amounts to a mere denial of the Durpos claims, to wit, that the Defendant Associations dump water onto the Durpos property without any legal right to do so. (See Am. Comp., 44, 46, 53, 62 & 87.) A denial of claim does not amount to an affirmative defense. See St. Paul Mercury Ins. Co. v. Coucher, 837 So. 2d 483, 487 (Fla. 5th DCA 2002) (an affirmative defense is a defense which admits the cause of action, but avoids liability, in whole or in part, by alleging an excuse, justification, or other matter negating or limiting liability). Because, the Defendant Associations are merely denying the basis of the Durpos claim, the Second Affirmative Defense should be stricken. 6. The Third Affirmative Defense should be stricken because it fails to state a legally cognizable defense, as pled. This defense purports to state a defense of - 3 -

4 equitable estoppel, but, as the Defendant Associations acknowledge, this legal defense requires that the party claiming it have acted in reliance on the other party s words or conduct, or otherwise change its condition or position. See Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001). The Defendant Associations merely allege they continued to drain into the System. As they must concede, the Defendant Associations drained their surface waters onto the Golf Course Property prior to any word or deed by the Durpos. Thus, this defense fails to plead ultimate facts that establish this last element of the defense of equitable estoppel and should be stricken. Bliss, supra. 7. The Sixth Affirmative Defense should be stricken because it fails to state a legally cognizable defense, as pled. This defense purports to state a defense to Counts III (Unjust Enrichment) and IV (Quantum Meruit) on the grounds that an express agreement allegedly exists. However, the Cost Share Agreement, as that term is defined in the Counterclaim to which the defenses refer, states that it is an agreement entered into between the Estero Bay Improvement Association and Bay Beach Golf Club, Inc., NOT the Durpos. (See Counterclaim, 49, and Exhibit Y thereto.) Thus, the defense fails to allege ultimate facts that would establish that an express agreement between the Defendant Associations and the Durpos existed, which would bar these claims. This defense is merely a conclusion of law unsupported by allegations of ultimate fact and is legally insufficient. See Cady and Bliss, supra. 8. Further, to the extent the Sixth Affirmative Defense relies on the allegation that the Defendant Associations were entitled to drain or dump their surface waters onto - 4 -

5 the Durpos property, this is merely a denial of the allegations and claims made by the Durpos, and not an affirmative defense. See St. Paul Mercury Ins. Co., supra. 9. The Eighth Affirmative Defense should be stricken because it is duplicative of the Seventh Affirmative defense, which also states the defense of waiver, and therefore redundant. Fla R. Civ. P (f) (court may strike redundant matter from pleading at any time). 10. Further, the Seventh Affirmative Defense relies on an interpretation of certain permits at issue in this case. The permits, and the Durpos interpretation of the requirements of same, were raised in the Amended Complaint. It is the Durpos position that the Defendant Associations have no legal right or permit that allows them to dump their surface waters onto the Durpos property in the manner in which they currently do. Thus, the Eight Affirmative defense relying on a different interpretation of the applicable permits is nothing more than a denial of the allegations made by the Durpos, and not an affirmative defense. 11. The Ninth Affirmative Defense must be stricken because it fails to allege any ultimate facts that would support its defense that the Durpos have failed to exhaust administrative remedies. The Defendant Associations merely allege that adequate administrative remedies exist, without stating what those remedies are or how the Durpos failed to exhaust them. This is merely a conclusion of law unsupported by allegations of ultimate fact and is legally insufficient. See Cady and Bliss, supra. 12. Further, the Defendant Associations refer to the Durpos permit and modification of same, but the claims made in Counts I IV of the Amended Complaint address the dumping of water by the Defendant Associations and their lack of a legal - 5 -

6 right to do so. The Defendant Associations fail to explain how modification of the Durpos permits would provide the Defendant Associations with a legal right to dump their surface waters onto the Golf Course Property. Thus, this defense fails to state a legally cognizable defense, as pled, to Counts I IV of the Amended Complaint, and should be stricken. 13. Finally, the Sixteenth Defense must be stricken because it fails to allege a legally cognizable defense. To prevail on the defense of unclean hands, a defendant must demonstrate that: (1) the plaintiff's alleged wrongdoing is directly related to the claim against which it is asserted; and (2) the defendant was personally injured by the plaintiff's conduct. Thornton v. J Jargon Co., 580 F. Supp. 2d 1261, 1283 (M.D. Fla. 2008). The Associations have failed to allege any personal injury to them from the conduct of which they complain. Indeed, it is difficult to fathom how the Associations could be injured by their free use of the System for over seven years. 14. Additionally, the unclean hands doctrine traditionally applies only to claims for equitable relief, but where, as here, a plaintiff seeks to recover damages, the unclean hands doctrine is not applicable. Regions Bank v. Old Jupiter, LLC, CIV, 2010 WL , at *5-6 (S.D. Fla. 2010) aff'd, 449 Fed. Appx. 818 (11th Cir. 2011). Thus, the doctrine of unclean hands cannot serve as a bar to the Durpos claims for damages. WHEREFORE, Plaintiffs, CLARK L. DURPO, JR. and CLARK L. DURPO, respectfully request that this Court enter an Order striking the above-identified affirmative defenses

7 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was filed with the Florida Court s E-Filing Portal on this 20th day of November, 2014, and pursuant to the Florida Supreme Court s Administrative Order No. AOSC13-49, a copy of foregoing will be served via upon all counsel listed on the attached Service List, in accordance with the requirements within Rule 2.516, Florida Rules of Judicial Administration. Respectfully submitted, Attorneys for Plaintiffs, BEASLEY, DEMOS & BROWN, LLC 201 Alhambra Circle, Suite 601 Coral Gables, FL Tel.: , Fax: /s/ Joseph W. Beasley By: JOSEPH W. BEASLEY Florida Bar No jbeasley@beasleydemos.com jmanley@beasleydemos.com JENNIFER PEREZ ALONSO Florida Bar No jalonso@beasleydemos.com - 7 -

8 DURPO v. BELLA LAGO CONDOMINIUM AT BAY BEACH CONDOMINIUM ASSOCIATION, INC., ET AL. In the Circuit Court in and for Lee County, FL Case No. 13-CA SERVICE LIST Attorneys for Plaintiffs Clark L. Durpo, Jr. ( Chip ) and Clark L. Durpo Joseph W. Beasley, Esq. BEASLEY, DEMOS & BROWN, LLC 201 Alhambra Circle, Suite 601 Coral Gables, FL Tel.: , Fax: jbeasley@beasleydemos.com jmanley@beasleydemos.com jalonso@beasleydemos.com sdemos@beasleydemos.com and Timothy J. Murty, Esq Periwinkle Way, Suite A Sanibel Island, FL Tel.: , Fax: timmurty@islandatty.com Attorneys for Plaintiffs in Defense of Counterclaim: Tirso M. Carreja, Jr., Esq. & Lauren Kirkpatrick, Esq. SHUTTS & BOWEN, LLP 4301 W. Boy Scout Blvd., Suite 300 Tampa, FL Tel: TCarreja@shutts.com, STaylor@shutts.com AKfro@shutts.com lkirkpatrick@shutts.com, shatfield@shutts.com Attorneys for The Palms of Bay Beach Condominium Association, Inc., Steven G. Koeppel, Esq. YESLOW & KOEPPEL, P.A. P.O. Box 9226 Fort Myers, FL Tel: , Fax: steve@yklegal.com, kris@yklegal.com Attorneys for Bella Lago Condominium at Bay Beach Condominium Association, Inc., Waterside III at Bay Beach Condominium Association, Inc. Jennifer A. Nichols, Esq. & Ashley D. Lupo, Esq. ROETZEL & ANDRESS, L.P.A. 850 Park Shore Drive, 3 rd Floor Naples, FL Tel.: , Fax: jnichols@ralaw.com, serve.jnichols@ralaw.com alupo@ralaw.com, serve.alupo@ralaw.com Attorneys for Bella Lago Condominium at Bay Beach Condominium Association, Inc., Casa Marina Association, Inc., Casa Marina II Condominium Association, Inc., Valencia Villas at Bay Beach Association, Inc., Waterside I at Bay Beach Condominium Association, Inc., Waterside II at Bay Beach Condominium Association, Inc., Waterside III at Bay Beach Condominium Association, Inc., Waterside IV at Bay Beach Condominium Association, Inc., Waterside V at Bay Beach Condominium Association, Inc. David Potter, Esq. & Thomas Coleman, Esq. BUCHANAN INGERSOLL & ROONEY P/C FOWLER WHITE BOGGS P.A First Street Fort Myers, Florida Direct: , Fax: david.potter@fowlerwhite.com cynthiahanrahan@fowlerwhite.com tom.coleman@bipc.com AND Michael Ciccarone, Esq. Corporate Quarters, Suite N. Cleveland Avenue North Fort Myers, FL Tel , Fax: Michael.ciccarone@fllandlaw.com - 8 -

9 Attorneys for Royal Pelican Association, Inc., Hibiscus Pointe Condominium Association, Inc., Harbor Pointe Condominium Association, Inc. & Sunset Gulf Condominium Association, Inc. Herbert O. Brock, Jr., Esq,, Sara Spector, Esq. & Thomas J. Code, Esq. BECKER & POLIAKOFF, P.A Carissa Commerce Court, Suite 200 Fort Myers, FL Tel.: , Fax: Attorneys for Casa Marina III Condominium Association, Inc., Manatee Bay at Bay Beach Condominium Association, Inc. Royal Pelican Association, Inc., Sunset Gulf Condominium Association, Inc., Valencia Villas at Bay Beach Association, Inc., Waterside I at Bay Beach Condominium Association, Inc., Waterside II at Bay Beach Condominium Association, Inc. David Chaiet, Esq. & Michele A. Crosa, Esq. ESINGER, BROWN, LEWIS, FRANKEL & CHAIET, P.A. Presidential Circle, Suite 265-South 4000 Hollywood Boulevard Hollywood, FL Tel.: , Fax: dchaiet@eisingerlaw.com, mcrosa@eisingerlaw.com, rjacobsen@eisingerlaw.com Attorneys for Defendant South Florida Water Management District Jeffrey A. Collier, Esq., Office of Counsel Practice Leader-Environmental Group Douglas H. MacLaughlin, Esq. South Florida Water Management District 3301 Gun Club Road, MSC 1410 West Palm Beach, FL Tel: , Fax: jacollier@sfwmd.gov, dmaclaug@sfwmd.gov litigation@sfwmd.gov, knisip@sfwmd.gov Attorneys for Casa Marina II Condominium Association, Inc., D. Spencer Mallard, Esq. & Nicholas P. Conto, Esq. LYDECKER DIAZ 1221 Brickell Avenue, 19 th Floor Miami, FL Tel.: , Fax: sm@lydeckerdiaz.com, ddc@lydeckerdiaz.com nconto@lydeckerdiaz.com, lmm@lydeckerdiaz.com eservice@lyderdiaz.com Attorneys Waterside Manatee Bay Holdings, LLC Julia L. Jennison, Esq. & Kathryn Rossmell, Esq. & Michelle Diffenderfer, Esq. & Wayne Flowers, Esq. LEWIS, LONGMAN & WALKER, P.A. 515 N. Flagler Drive, Suite 1500 West Palm Beach, FL Tel.: , Fax: jjennison@llw-law.com, krossmell@llw-law.com wflowers@llw-law.com mdiffenderfer@llw-law.com Attorneys for Casa Marina III Condominium Association, Inc., Harbor Pointe Condominium Association, Inc., Hibiscus Pointe Condominium Association, Inc., Manatee Bay at Bay Beach Condominium Association, Inc., Royal Pelican Association, Inc., Sunset Gulf Condominium Association, Inc., The Palms of Bay Beach Condominium Association, Inc., Waterside III at Bay Beach Condominium Association, Inc., Waterside IV at Bay Beach Condominium Association, Inc. Ron M. Campbell, Esq. & Lindsay Lee, Esq. COLE, SCOTT & KISSANE, P.A Riverview Center Blvd., Suite 200 Bonita Springs, FL Tel: , Fax: Ron.campbell@csklegal.com Lindsay.lee@csklegal.com Angela.hernandez@csklegal.com - 9 -