IN THE CIRCUIT COURT, SEVENTH JUDICIAL CIRCUIT, IN AND FOR ST. JOHNS COUNTY, FLORIDA BEACH HOMES AT VILLAGES OF VILANO CONDOMINIUM ASSOCIATION, INC., a Florida net for profit corporation, CASE NO.: CA09-0179 DIVISION: 55 v. Plaintiff, VILLAGES OF VILANO HOMEOWNERS' ASSOCIATION, INC., a Florida not for profit corporation, Defendant. / ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL OF VILLAGES OF VILANO HOMEOWNERS' ASSOCIATION, INC. COMES NOW, Defendant, Villages of Vilano Homeowners Association, Inc., (hereinafter, "Villages of Vilano"), by and through undersigned counsel, pursuant to the applicable Florida Rules of Civil Procedure and Local Rules governing practice hereby files this Answer, Affirmative Defenses and Demand for Jury Trial in response to Plaintiffs, Beach Homes at Villages of Vilano Condominium Association, Inc., (hereinafter, "Beach Homes") Complaint as follows: ANSWER 1. Villages of Vilano admits the allegations contained in Paragraph 1. 2. Villages of Vilano admits the allegations contained in Paragraph 2. 3. Villages of Vilano admits the allegations contained in Paragraph 3.
4. Villages of Vilano admits that Beach Homes and Villages of Vilano are governed by multiple statutes, Florida law, declarations of covenants, bylaws, actions of boards of directors, and other association documents, which include among other documents, the Declaration of Covenants and Restrictions for Villages of Vilano ("Declaration"), as amended from time to time, the contents of which speak for itself. Otherwise, Villages of Vilano denies the remaining 5. Villages of Vilano admits that Beach Homes is governed by multiple statutes, Florida law, declarations of covenants, bylaws, actions of boards of directors, and other association documents, which include among other documents, the Declaration of Condominium of Beach Homes at Villages of Vilano (" BH Declaration"), as amended from time to time, the contents of which speak for itself. Otherwise, Villages of Vilano denies the remaining allegations contained within this paragraph. 6. Villages of Vilano denies the 7. Villages of Vilano admits that one of its responsibilities pursuant to the Declaration is the management and control of the Common Area, which is defined by the Declaration and by Florida law. Otherwise, Villages of Vilano denies the remaining allegations contained within this paragraph. 8. Villages of Vilano denies the 9. Villages of Vilano admits that in 2003, Villages of Vilano passed a duly authorized resolution which clarified certain assessments to all owners within the Villages of Vilano beginning in January of 2004. Villages of Vilano denies the remaining allegations contained within this paragraph. 10. Villages of Vilano denies the 2
11. Villages of Vilano denies the 12. Villages of Vilano admits that Florida Statutes 720.303 contains statutory language, the contents of which speak for itself. Villages of Vilano denies the remaining allegations contained within this paragraph. 13. Villages of Vilano denies the 14. Villages of Vilano denies the 15. Villages of Vilano admits that the Declaration of contains certain language and 16. Villages of Vilano admits that the Declaration of contains certain language and 17. Villages of Vilano denies the contents of this paragraph because Beach Homes failed to properly cite the Declaration's definition of "Unit," as amended. Villages of Vilano denies the remaining 18. Villages of Vilano denies the 19. Villages of Vilano admits that the Declaration of contains certain language and 20. Villages of Vilano denies the 21. Villages of Vilano denies the 3
22. Villages of Vilano admits that the Declaration of contains certain language and 23. Villages of Vilano admits that all owners in Villages of Vilano are assessed assessments. Villages of Vilano denies the remaining 24. Villages of Vilano admits that the Declaration of contains certain language and 25. Villages of Vilano admits that the Declaration of contains certain language and 26. Villages of Vilano admits that Florida Statutes 720.3061 contains statutory language, the contents of which speak for itself. Villages of Vilano denies the remaining allegations contained within this paragraph. 27. Villages of Vilano denies the 28. Villages of Vilano denies the 29. Villages of Vilano denies the 30. Villages of Vilano denies the 31. Villages of Vilano denies the 32. Villages of Vilano denies the 33. Villages of Vilano denies the 34. Villages of Vilano denies the 35. Villages of Vilano denies the 4
36. Villages of Vilano denies the 37. Villages of Vilano admits that pursuant to the Declaration, general assessments funds can be used for operation, management, maintenance or repairs servicing renewal, replacement or improvement of the property, among other permissible uses pursuant to the Declaration and Florida law. Villages of Vilano denies the remaining allegations contained within this paragraph. 38. Villages of Vilano denies the 39. Villages of Vilano denies the 40. Villages of Vilano denies the 41. Villages of Vilano denies the COUNT I BREACH OF DECLARATION 42. The allegations in paragraph 42 are not directed to Villages of Vilano and hence, no admits that Beach Homes is attempting to allege a cause of action for Breach of Declaration. Villages of Vilano denies the remaining 43. The allegations in paragraph 43 are not directed to Villages of Vilano and hence, no restates and realleges its responses to the allegations contained in paragraphs 1 through 41 above. 44. Villages of Vilano denies the 45. Villages of Vilano denies the 46. Villages of Vilano denies the 47. Villages of Vilano denies the 5
COUNT II DECLARATORY JUDGMENT 48. The allegations in paragraph 48 are not directed to Villages of Vilano and hence, no admits that Beach Homes is attempting to allege a cause of action for Declaratory Judgment. Villages of Vilano denies the remaining 49. The allegations in paragraph 49 are not directed to Villages of Vilano and hence, no restates and realleges its responses to the allegations contained in paragraphs 1 through 41 above. 50. Villages of Vilano denies the 51. Villages of Vilano denies the 52. Villages of Vilano denies the 53. Villages of Vilano denies the 54. Villages of Vilano denies the COUNT III UNJUST ENRICHMENT 55. The allegations in paragraph 55 are not directed to Villages of Vilano and hence, no admits that Beach Homes is attempting to allege a cause of action for Unjust Enrichment. Villages of Vilano denies the remaining 56. The allegations in paragraph 56 are not directed to Villages of Vilano and hence, no restates and realleges its responses to the allegations contained in paragraphs 1 through 41 above. 57. Villages of Vilano denies the 58. Villages of Vilano denies the 6
59. Villages of Vilano denies the 60. Villages of Vilano denies the 61. Villages of Vilano denies the 62. Villages of Vilano denies the 63. Villages of Vilano denies the COUNT IV INJUNCTION 64. The allegations in paragraph 64 are not directed to Villages of Vilano and hence, no admits that Beach Homes is attempting to allege a cause of action for Unjust Enrichment. Villages of Vilano denies the remaining 65. The allegations in paragraph 65 are not directed to Villages of Vilano and hence, no restates and realleges its responses to the allegations contained in paragraphs 1 through 41 above. 66. Villages of Vilano denies the 67. Villages of Vilano denies the 68. Villages of Vilano denies the 69. Villages of Vilano denies the AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Beach Homes failed to state a cause of action for unjust enrichment. SECOND AFFIRMATIVE DEFENSE Beach Homes failed to state a cause of action for declaratory relief. 7
THIRD AFFIRMATIVE DEFENSE Beach Homes failed to state a cause of action for injunctive relief. FOURTH AFFIRMATIVE DEFENSE Beach Homes failed to state a cause of action for breach of declaration. FIFTH AFFIRMATIVE DEFENSE Beach Homes failed to mitigate its alleged damages. SIXTH AFFIRMATIVE DEFENSE Some Beach Homes members have failed to make payments for the subject assessments and therefore the requested injunction is improper because the allegations are not common to all Beach Homes members. SEVENTH AFFIRMATIVE DEFENSE Beach Homes waived any rights or arguments in may have in support of its position that the subject assessments are improper. EIGHTH AFFIRMATIVE DEFENSE Beach Homes is estopped from arguing and claiming the subject assessments are improper. NINTH AFFIRMATIVE DEFENSE This matter should be dismissed pursuant to Florida Rule of Civil Procedure 1.221, whereby this institution of this action by Beaches Homes does not pertain to a common interest to the Beaches Homes members. TENTH AFFIRMATIVE DEFENSE Beach Homes breached the Declaration and that breach has caused damages to Villages of Vilano. 8
ELEVENTH AFFIRMATIVE DEFENSE Beach Homes breached the BH Declaration and that breach has caused damages to Villages of Vilano and Beach Homes members. TWELFTH AFFIRMATIVE DEFENSE The applicable statute of limitations expired prior to the institution of this action and therefore this case should be dismissed with prejudice. THIRTEENTH AFFIRMATIVE DEFENSE Laches applies and acts to bar the institution of this action, and therefore the claims of Beach Homes should be dismissed with prejudice. FOURTEENTH AFFIRMATIVE DEFENSE Beach Homes has failed to include indispensable parties in this litigation and therefore, this case should be dismissed. Specifically, Beach Homes has not included as additional parties the subassociations, which fall under the management and control of the Villages of Vilano and might be affected by any jury determination herein. FIFTEENTH AFFIRMATIVE DEFENSE Beach Homes refers to the wrong definitions in its Complaint against the Villages of Vilano. Pursuant to the Amendments, those amended definitions which replace those definitions used by Beach Homes in the Complaint further illustrate the lack of any support for Beach Homes position that the subject assessments are improper. DEMAND FOR JURY TRIAL Villages of Vilano hereby demands a trial by jury on all issues presented in this cause. 9
WHEREFORE, Villages of Vilano hereby demands that Beaches Homes' take nothing from this action and Villages of Vilano goes hence without day. Vilalges of Vilano further requests that this Honorable Court award costs and fees in favor of Villages of Vilano pursuant to the Declaration, and Florida Statutes, Chapters 718 and 720. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing was furnished to Richard Q. Lewis, III, Esquire, Upchurch, Bailey & Upchurch, P.A., P.O. Box 3007, St. Augustine, FL 32805-3007, by Facsimile and U.S. Mail this day of March, 2009. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, P.C. 25/205273.v1 Michael Fox Orr, Esquire Florida Bar No.: 14594 200 West Forsyth Street, Suite 1400 Jacksonville, FL 32202 Telephone: (904) 358-4200 Facsimile: (904) 355-0019 Attorneys for Defendant 10