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FLAGLER'S ANSWER TO AMENDED COMPLAINT_ AFFIRMATIVE

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FLAGLER'S ANSWER TO AMENDED COMPLAINT_ AFFIRMATIVE Powered By Docstoc
					                                     fN THE CIRCUIT COURT OF THE
                                                                     •
                                     FIFTEENTH JUDICIAL CIRCUIT, fN AND
                                     FOR PALM BEACH COUNTY, FLORIDA

                                     CASE NO.: SO-2008-007279-XXXXMB-AG

DRAWDY BROTHERS
CONSTRUCTION II, fNC.,

       Plaintiff,
                                                                                                                  ,..
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Ys.                                                                         ~';' ~",            '
                                                                                                          :::'?   ;-'
                                                                                                          --.'~   ....J
                                                                             r~;~~-'                      ~
FLAGLER LANDING, L.P.,                                                       :;::r:   ~.    ,
                                                                                      :-':,
                                                                                      .    :~       ,."


    Defendant.
_ _ _ _ _ _ _ _ _ _--'1

  FLAGLER'S ANSWER TO AMENDED COMPLAINT, AFFIRMATIVE DEFENSES
          AND COUNTERCLAIM AGAINST DRAWDY BROTHERS

       Defendant, Flagler Landing, L.P. ("Flagler"), files this Answer to the Amended Complaint filed

by Plaintiff, Drawdy Brothers Construction, II ("Drawdy"), and states as follows:

                     COUNT I - Action to Enforce Construction Lien and
                    Suit on Section §7I3.24, Florida Statutes, Transfer Bond

       I.      Admit for jurisdictional purposes only.

       2.      Admit.

       3.      Admit.

       4.      Admit.

       S.      Admit.

       6.      Without knowledge, therefore denied.

       7.      Without knowledge, and therefore denied.

       8.      Denied.

       9.      Denied.
        10.
                                                                         •
                Without knowledge whether Weitz accepted the work, denied that Flagler

accepted the work, otherwise denied.

        II.     Denied.

        12.     Admit that Plaintiff recorded its Claim of Lien on March 22,2007 in Official

Records Book 21543, Page 0059, Public Records of Palm Beach County, Florida, deny that

Plaintiff was not paid in full for its labor, services and materials, otherwise denied.

        13.     Denied.

        14.     Admit that Plaintiff has received payments since the recordation of its lien,

otherwise denied.

        15.     Denied.

        16.     Admit that Plaintiff has made demand on the Defendant, deny that there is an

outstanding balance, otherwise denied.

        17.     Denied.

        18.     Denied, see Affirmative Defenses.

        19.     Denied.

        20.     Admit.

        21.     Without knowledge, and therefore denied.

                               COUNT II - CODtract Implied by Law

        2 J.[sic]Admit for jurisdictional purposes only.

        22.     Defendant repeats and realleges its answers to paragraphs 2, 3, 4, 5, 10, 11, 16

and 17 as if set forth in full herein.

        23.     Denied.

        24.     Denied.




                                                  2
        25.    Denied.
                                                                       •
        26.    Denied.

        27.    Denied

                                 AFFIRMATIVE DEFENSES

        I.     Plaintiffs recovery is barred due to prior material breach of contract.

        2.     Plaintiffs recovery is barred due to the doctrine of waiver and estoppel.

        3.     Plaintiffs recovery is barred due to laches and unclean hands.

        4.     Plaintiffs recovery under Chapter 713, Florida Statutes is barred because of

Plaintiffs failure to comply with all conditions precedent in accordance with the requirements of

the statute.

        5.     Plaintiffs recovery is barred or subject to reduction in that Plaintiffs construction

work performed failed to comply with the plans and specifications.

        6.     Plaintiffs recovery is subject to reduction based upon Defendant's right to set-off

costs of repair and other damages flowing from Plaintiffs defective work.

                   COUNTERCLAIM AGAINST DRAWDY BROTHERS

        Defendant, Flagler Landing, L.P. ("Flagler") files this Counterclaim against Plaintiff,

Drawdy Brothers Construction II, Inc. ("Drawdy"), and alleges as follows:

        I.     Counterclaim-Plaintiff, Flagler was at all times material hereto the owner of the

real property known as Flagler Landing, located at 3900 North Flagler Drive, West Palm Beach,

Palm Beach County, Florida, and improved by Weitz.

        2.     Counterclaim-Defendant, Drawdy was at all times material hereto a Florida

corporation maintaining its office for the conduct of business in St. Lucie County, Florida.

        3.     Venue is proper in Palm Beach County as the construction project at issue is




                                                 3
                                                                        •
located in Palm Beach, the cause of action arose in Palm Beach and real property that is the

subject of the Claim of Lien lies in Palm Beach County.

       4.        All conditions precedent to bringing this action have occurred or otherwise been

waived.

        5.       Flagler has retained the law firm of Greenberg Traurig, P.A. and is obligated to

pay a reasonable attorney's fee for their services.

        6.       This is an action for damages and to discharge a fraudulent lien pursuant to

Section 713.31, Florida Statutes (2007) and is within the jurisdiction of this Court.

        7.       On or about March 22, 2007, Drawdy recorded a Claim of Lien against property

belonging to Flagler, in Official Records Book 21543, Page 0059, Public Records of Palm Beach

County, Florida and attached hereto as Exhibit"A".

          8.     The lien is a fraudulent lien because:

                 a.      Drawdy has willfully exaggerated the amount for which the lien is

        claimed because it includes items which are not properly lienable pursuant to

          Chapter 713, Florida Statutes;

                 b.      Drawdy has willfully exaggerated the amount for which the lien is

          claimed by filing the lien at a time when all payments were not due;

                 c.      Drawdy has willfully included claims for work not performed upon

        and for materials not provided for the property upon which the lien is claimed.; or

                 d.      Drawdy has compiled its lien with such willful and gross

          negligence as to amount to a willful exaggeration.




                                                   4
        9.
                                                                         •
                 Pursuant to Section 713.31(2), Florida Statutes, Flagler is entitled to recover its

actual damages resulting from the filing of the fraudulent lien, and attorney's fees and costs as

well as punitive damages.

        WHEREFORE, Counterclaim-Plaintiff, Flagler Landing, L.P., demands judgment against

Counterclaim-Defendant, Drawdy Brothers Construction II, Inc., discharging the fraudulent lien,

awarding Flagler its actual damages and punitive damages, and awarding Flagler attorney's fees

and costs, and such further relief as the Court may deem appropriate.

                                     CERTIFICATE OF SERVICE

        I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished

via Facsimile and U.S. Mail to: Michael J. Monchick, Esq., Attorney for Plaintiff, Casey Ciklin

Lubitz Martens & O'Connell, 515 North Flagler Drive, Suite 1700, West Palm Beach, Florida

33402-4626, this      to          day of May, 2008.



                                                 MICHAEL G. MURPHY
                                                 Florida Bar No. 0139890
                                                 ALLISON M. HUNT
                                                 Florida Bar No. 0037084
                                                 Greenberg Traurig, P.A.
                                                 450 South Orange Ave, Suite 650
                                                 Orlando, Florida 32801
                                                 Telephone:     (407) 420-1000
                                                 Facsimile:     (407) 841-1295
                                                 Attorneys for Defendant, Flagler Landing, L.P.


ORL 296,886,46Ovl 094268.010800




                                                      5
   '.
                                                 .~
                                                                              FIf 20070.1.40749
                                                                             R' BK21.S43· pi:; :..... S9
   r~      by 4; Retarn 10:                                                RECOBD£D 03/22/2007 11-117143
   Jennifer Pottorff                                                       Palm 'Beach CoUnty, "Florida
   Drawdy BIOIhClS·Construetion.II, Inc,.                                  Sh~ron.R.      Bobk,CLEftX & CDnPTROLLXR
   2945 West Midway Rd        .                                            Pg "59; Upgl
   Ft. Pierce, Florida 34981


                            WARNINGl
  .THIS LEGAL DOCUMENTREFLECfS THAT A CONSTRUCTION LIEN HAS
   BEEN PLACED ON THE REAL PROPERTY LISTED BEUIN, UNLESS IDE
   OWNER OF SUCH PROPERTY TAKES AcnON TO SHORTEN THE TIME
   PERIOD. THIS LIEN MAY REMAIN VALID FOR ONE YEAR'FROM IDE
  DATE OF RECORDING. AND. SHALL EXPlBE AND BECOME' NULL AND.
  VOID THEREAFTER UNLESS LEGAL PROCEEDINGS BAVE BEEN
   COMMENCED TO FORECLOSE OR TO DISCHARGE TR!$ LIEN.


                                                   CLAIM OF LIEN

  STATE OF FLORIDA     )
  COUNTY OF ST. LUCIE. )

           Before me, the undersigned Notary Public, penonaJiy appeared Jennifer Pottorlf.
  as Secrct.axy of Drawdy Brothers Construction II. Inc., who was duly sworn BJ1d says
  that she is the agent of the lienor herein, whose address is 2945 West Midway Rood.
  Ft. Picroe. FL 34981 • and that in accordmce with a Contract with The Weitz
  ColDJ"'!lY. lialor furnished 1ahor, serviceS or mal<rials consisting of. Labor & Materials
  to Derform various cone= construction                       on the fonowing described real property
  localcd in Palm Beacb County. Florida:

 T'RACTS A AND 8 OF PLAGl.ER. tJ,NDlNa. ACCORDINO TO nm PLAT nJ:E:R.!Of. AS RECOJUJBD IN PLAT BOOK 103,
 AT PAO£ 95. QPnmPUllUCRECORDS OPPALM BeACH COUNTY, FLORlDA

 Owned by       Flagler !..aDding L,P; of 8 total value of _$6.192.278.20, of which there
 remains unpaid _$342.658.67 • and lbmi.shed the first of the items on ~ and the last
 of the items on 12124106: and (If required) that the lienor served the Notice to Owner on
 the Owner OD April 14tl1 , 2005 and with a copy on the Contractor•. April 14th, 2005,
 by Certified Mail



                                                  Drawdy Brothers Construction n Inc. (lienor)


                                                 ~~eNarn~§(f:(;H;*
STATE OF FLORJDA
C01.JNT'Y OF     :Sf . L~c.i.e.-.
         S.... om.Jo   (01    affinncd) and SUbSC1lbcd before me:   thu ~+- day   of   Mo..JrC.A.   ~              by
  :JSn"i-fer RrH .... e-f.
PREPARED BY AND RI!TIIRN TO:                                              SIgn:   Cz,~.o . ..thu..rJ
  illo.1ft- P"j-b,,-f£
                                                                          fri.cC4.+o< s.     (3,-"""

Produced Identification'                                                  NOTARYPUBUC, STATE OF FLC~Jbl1
FLORIDA
Type ofldentffication Produeed                            _               M)' Commlssloo No. "b:b .5'b?   ;J (.,   f

                                                                          My Commission Expires:    q.'1-D?




                                                                                                                        EXHIBIT

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