MOTION TO STRIKE DEFENDANT AFFIRMATIVE DEFENSES PLAINTIFF, by and through her undersigned attorneys, moves to strike Defendant, affirmative

defenses for failure to satisfy the Florida Rules of Civil Procedure pleading requirements and in support thereof state: I. Introduction In another attempt to increase fees and delay this action, Defendant asserts thirteen frivolous affirmative defenses. Each paragraph set forth numerous conclusory affirmative defenses without pleading any facts that form the basis for those defenses. As pled, all of the “affirmative defenses” are legally insufficient therefore without merit and must be stricken pursuant Rule 1.140(b). Florida Rule of Civil Procedure 1.140(b). Significantly, each and every one of Defendant’s thirteen affirmative defenses are short on facts and long on legal conclusions. Each lacks specificity and appear to have been asserted with no factual investigation or regard to relevance. In sum, all of Defendant’s allegations are insufficiently pled, fail to properly state a legal defense, and offer no cognizable legal claim for relief. II. The Affirmative Defenses Each of Defendant’s affirmative defenses falls short of satisfying Rule 1.140’s “fair notice” pleading requirement. Indeed, as pled, Defendant’s affirmative defenses provide

absolutely no indication of what the factual basis of those affirmative defenses might be, and therefore, force Plaintiff to guess and wonder. Defendant’s recitation of affirmative defenses reads, in its entity: For ANMPA [Defendant Alberto N. Moris PA], First Affirmative Defense, ANMPA states that Plaintiff has failed to state a proper cause of action for which relief can be granted.

For ANMPA’s Second Affirmative Defense, ANMPA states that all conditions precedent to bringing this action by Plaintiff have not occurred and have not been excused or waived. For ANMPA’s Third Affirmative Defense, ANMPA states that Plaintiff’s claims are barred due to the doctrine of Laches. Plaintiff’s delay in making its claim has prejudiced ANMPA. For ANMPA’s Fourth Affirmative Defense, ANMPA states that any liability of ANMPA (without admitting that any such liability exists) is the direct result of Plaintiff’s actions herein. For ANMPA’s Fifth Affirmative Defense, ANMPA states that Plaintiff has released ANMPA from any liability by virtue of its signature on the HUD-1 Settlement Statement. For ANMPA’s Sixth Affirmative Defense, ANMPA states that Plaintiff (without admitting that any damages exist) has failed to mitigate its damages, even though the Plaintiff had the opportunity and means of doing so. For ANMPA’s Seventh Affirmative Defense, ANMPA states that Plaintiff has waived its claim by virtue of its due diligence performance before the subject transaction took place, specifically, Plaintiff acknowledged in writing that the parking spots were NOT included in the subject purchase. For ANMPA’s Eighth Affirmative Defense, ANMPA states that Plaintiff’s tort claim is barred by the economic loss rule, which precludes Plaintiff from recovering a purely economic loss suffered through a breach of contract. For ANMPA’s Ninth Affirmative Defense, ANMPA states that Plaintiff’s claims are barred against ANMPA due to the doctrine of agency. For ANMPA’s Tenth Affirmative Defense, ANMPA states that Plaintiff’s claims are barred against ANMPA due to the doctrine of waiver. Plaintiff waived its right to make the claims in its Complaint by acknowledging that there were no parking spots included in this transaction, fully executing the “as-is” contract and HUD-1 Settlement Statement, and by accepting the bill of sale for the subject property. For ANMPA’s Eleventh Affirmative Defense, ANMPA states that Plaintiff is barred from recovery due to the Plaintiff’s own failure to complete the transaction because Plaintiff refused to pick up the membership certificate from the condominium association after the

condominium association approved the issuance of the certificate, the transaction had closed, moneys were disbursed, and the Plaintiff was notified that there were no issues with the transfer of the subject boat dock. Plaintiff’s claims simply amount to buyer’s remorse. For ANMPA’s Twelfth Affirmative Defense, ANMPA states that Plaintiff is comparatively negligent due to Plaintiff’s performance of due diligence before closing on the subject transaction, Plaintiff’s failure to completely perform under the agreements between the parties, and Plaintiff’s obfuscation. For ANMPA’s Thirteenth Affirmative Defense, ANMPA states that any damages (without admitting that any damages exist) must be setoff by any amounts received by Plaintiff. Unquestionably, this bare bones boilerplate pleading of affirmative defenses is inadequate. Defendant’s bald assertions of failure to state a cause of action, failure of condition precedent, waiver, laches, setoff, economic loss, doctrine of agency, comparative fault, etc. do not provide Plaintiff with “fair notice” of the defenses being advanced. It is simply unacceptable for a party’s attorney to simply to mouth affirmative defenses in formula-like fashion (laches, agency, waiver, or what have you) for that does not do the job of apprising undersigned or this Court of the predicate for the claimed defense which is after all the goal of notice factual pleading. The Defendant’s Answer and Affirmative Defenses is so evasive, so rambling and so wanton that no one can but a gifted psychic can decipher it. The record in this case is devoid of factual support for these defenses and Defendant has made no attempt to introduce or allege any similar supporting facts. No facts are contained in Defendant’s pleadings other than denials of the facts alleged in Plaintiff’s complaint and no notice is given as to how or why any of Defendant’s alleged affirmative defenses apply. III. Legal Argument

It is well established that courts have broad discretion to strike insufficient affirmative defenses. Defendant’s affirmative defenses must be stricken because they are void of any facts or rife with nonsensical arguments. A motion to strike a defense is proper when the defense is insufficient as a matter of law. All of the Defendant’s affirmative defenses fail to meet the requirements of Florida Rules of Civil Procedure 1.140(b), which require “[t]he grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued [to] be stated specifically and with particularity in the responsive pleading or motion.” (emphasis added). An affirmative

defense is subject to the same pleading requirements as the complaint it must be pled with enough specificity to give the plaintiff “fair notice” of the defense being advanced.. “It is insufficient to plead opinions, theories, legal conclusions or argument.” Barrett v. City of Margate, 743 So.2d 1160, 1162-63 (Fla. 4th DCA 1999). “A plaintiff is as much entitled to be aware of the ground upon which it is claimed he should not recover as is a defendant to be apprised of the basis of the plaintiff’s claim.” Walker v. Walker, 254 So.2d 832, 834 (Fla. 1st DCA 1971). This requires defendant to “set forth the facts in such a manner as to reasonably inform [Plaintiff] of what is proposed to be proved” so that Plaintiff has a “fair opportunity to meet it and prepare [her] evidence.” Zito v. Wash. Fed. Sav. & Loan Ass’n, 318 So.2d 175, 176-77 (Fla. 3d DCA 1975)(citations omitted). Bare bones legal conclusions or naked assertions devoid of any factual enhancements are clearly insufficient. Further, a defendant must refrain from making conclusory statements not constituting a sufficient defense to the complaint. See Cady v. Chevy Chase Sav. & Loan, Inc., 528 So.2d 136, 137-38 (Fla. 4th DCA 1988)(“A careful analysis of each of the affirmative defenses reflects they are, on the whole, conclusory in their content, and lacking in any real allegations of ultimate fact demonstrating a good

defense to the complaint.”). “]P]leading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.” Bliss v. Carmona, 418 So.2d 1017, 1019 (Fla. 3d DCA 1982) (citations omitted). Legally insufficient affirmative defenses must be stricken. Cf. Windle v. Sebod, 241 So.2d 165, 166 (Fla. 45h DCA 1970) (“A motion to strike an affirmative defense … tests the legal sufficiency of such defense.”). The Defendant’s affirmative defenses all fail to meet these standards and must be stricken. By way of example, under Rule 1.120(c), Plaintiff may generally aver the satisfaction of conditions precedent, the Defendant is required to deny such compliance with “specificity and with particularly.” Fla. R. Civ. P. 1.120(c); see also Goodman v. Martin County Health Dep’t, 786 So.2d 661, 663 (Fla. 4th DCA 2001). Once satisfaction of conditions precedent is pled, the burden shifts to the Defendant to negate compliance by specifying how Plaintiff did not comply with the conditions precedent. See e.g., Calero v. Metro. Dade County, 787 So.2d 911, 914 (Fla. 3d DCA 2001). Defendant’s generic allegation “that all conditions precedent to the bringing of this action by Plaintiff have not occurred and have not been excused or waived” is insufficient to meet its burden. (Answer, Affirmative Defenses at 7, ¶ 2). Affirmative defenses “conclusory in their content and lacking any real allegations of ultimate fact” are legally insufficient. Cady, 528 So.2d at 137-38; see also Spettecasi v. Bd of Pub. Instruction of Pinellas County, 156 So.2d 652, 655 (Fla. 2d DCA 1963) (finding affirmative defenses that did not set forth facts in support of each element thereof was properly stricken).

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