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Filing # 164998454 E-Filed 01/18/2023 07:48:00 PM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
IN AND FOR CHARLOTTE COUNTY, FLORIDA
CASE NO: 22-001203-CA
JORDAN ZIMILOVER
Plaintiff,
Vv.
FRANK R. MUELLER and
ANITA MUELLER,
Defendants,
PLAINTIFF/S MOTION TO STRIKE AFFIRMATIVE DEFENSES
Pursuant to Fla. R. Civ. P. 1.140(b), Plaintiff, JORDAN ZIMILOVER ((Plaintiff.), by and
through their undersigned counsel, respectfully moves this Court to strike Defendants, FRANK
MUELLER and ANITA MUELLER'S ((DefendantUor, collectively, (Defendants), affirmative
defenses and in support thereof states as follows:
I INTRODUCTION
This action arises out of the Amended Complaint which Plaintiff filed against Defendants
on December 9, 2022 (the (Complaint), seeking to quiet title, specific performance, fraud, and
asserting breach of contract. Defendants filed their answer and affirmative defenses (the
Answerl) on December 29, 2022. Defendants proffered thirty-one (31) affirmative defenses.
Plaintiff seeks an order of the Court striking all of Defendants_Affirmative Defenses as improper
as a matter of law.
Il. LEGAL STANDARD APPLICABLE TO AFFIRMATIVE DEFENSES
An affirmative defense is a defense which admits the cause of action [asserted in the
plaintiffis complaint], but avoids liability, in whole or in part, by alleging an excuse, justification,
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or other matter negating or limiting liability. IMTGLO Invs., LP v. Leones, 320 So 3d 769, 774
(Fla. 4th DCA 2021) (quoting State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079
(Fla. 2014)). [Affirmative defenses do not simply deny the facts of the opposing partys claim.
They raise some new matter which defeats an otherwise apparently valid claim. Wiggins v.
Portmay Corp., 430 So 2d 541, 542 (Fla. 4th DCA 1983) (citations omitted); see also Wooten v.
Collins, 327 So. 2d 795, 797 (Fla. 3d DCA 1976) (citation omitted) (([A]ffirmative defenses are
pleas of confession and avoidance. They admit the facts of the opposing party's complaint but
raise some new matters which defeat the opposing party(s valid claim{). Consequently, a mere
denial of the allegations in a complaint cannot form the basis of an affirmative defense. See Gatt
v. Keyes Corp., 446 So. 2d 211, 212 (Fla. 3d DCA 1984); see also Natural Stone Concepts of
Naples v. Gonzalez, 2021 Fla. Cir. LEXIS 5420, *1 (striking affirmative defenses, as [[m]ere
denials are not appropriate in affirmative defenses and should be stricken() (citing id.); Zito v.
Wash. Fed. Sav. & Loan Assoc., 318 So. 2d 175, 176 (Fla. 3d DCA 1975) ({{T]hat portion of the
affirmative defense alleging that the note was not in default does not constitute an affirmative
defense, but is merely a denial().
Under clearly established law, such arguments, while defensive in nature, do not
constitute (affirmative defenses, | |which are limited to matters in the nature of a (confession and
avoidance. 1See Moore Meats, Inc. v. Strawn, 313 So 2d 660, 661(662 (Fla. 1975) (Every law
student should learn that two classes of defensive pleas in bar exist. The first is a plea by way of
traverse. This means a denial of an ultimate fact pleaded in the preceding pleading. The second
class of defensive plea is one by way of confession and avoidance. All affirmative defenses are
pleas by way of confession and avoidance. They admit the allegations of the plea to which they
are directed and allege additional facts that avoid the legal effect of the confession.) (emphasis
added); see also Vizcayans, Inc. v. City of Miami, 2013 Fla. Cir. LEXIS 19122, *8 (([the
affirmative defense] is not in the nature of confession and avoidance, but amounts to a denial.
The defense is hereby STRICKEND.
The pleading requirements for an affirmative defense under Florida law are similar to
those required for a pleading seeking affirmative relief. See Cady v. Chevy Chase Sav. & Loan,
Inc., 528 So. 2d 136, 137[88 (Fla. 4th DCA 1988). Therefore, like a complaint, an affirmative
defense is required to allege ultimate facts establishing the Defendant/s entitlement to relief
under the legal principle involved, and an affirmative defense which alleges only legal
conclusions is insufficient. In other words, certainty is required when pleading defenses, and
pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.
Thompson v. Bank of N.Y., 862 So. 2d 768, 771 (Fla. 4th DCA 2003) (quotation omitted); see
also Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982); Walker v. Walker, 254 So. 2d
832, 833(34 (Fla. Ist DCA 1971) ({Just as in the statement of a claim, the requirement of
certainty will be insisted upon in the pleading of a defense‘). Purported affirmative defenses that
do not satisfy this test are properly stricken. See, e.g., Cady, 528 So. 2d at 137/38 (striking
affirmative defenses where [{a] careful analysis of each of the affirmative defenses reflects that
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().
Til. ARGUMENT
1 Defendants/ First Affirmative Defense Should Be Struck
For their first affirmative defense, Defendants argue that the Plaintiff [can not show
clearly what the property is that [he] alleges he has title to as a result of an alleged sale of a
property from Defendants to Plaintiff. See Doc. 30, [Answer(at p. 7. Defendants then state,
Plaintiff must prove Plaintiff has title to the property they are seeking to quiet title onand that
Plaintiff has not and can not show clearly what property Plaintiff is claiming he has title to. /d.
On or about May 5, 2022, the parties executed a Vacant Land Contract (the (Contract)
for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the
Property(). See Exhibit LA at pg. 2. Among other information, the Contract lists key identifiers
concerning the Property:
1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, Uwith [LTS being an abbreviation for Hlots{j and
2) The Property (s Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel
Identification Number as 412108382010. See [Complaint(at pg. 3 regarding Warranty Deed; see
Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
description and identification number are the same on both the Contract and Warranty Deed.
Defendants assertion that [Plaintiff can not show clearly what Property [he] has title to
is disproven by the aforementioned facts. Plaintiff has proven that the property in question
contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed. Based on the
foregoing information, Defendants! First Affirmative Defense should be struck.
ii. Defendants’ Second Affirmative Defense Should Be Struck
For their second affirmative defense, Defendants argue that Plaintiff [can not show that
there is a cloud on [the Property s] title. [See Doc. 30, [Answer|lat p. 7.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, Uwith [LTS being an abbreviation for Hlots{j and
2) The Property (s Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal
description and identification number are the same on both the Contract and Warranty Deed.
The Warranty Deed was filed with the Charlotte County Clerk on June 22, 2022. See Doc.
28, (Amended Complaint(Jat pg. 3. Plaintiff and Defendants were informed by Sunbelt Title
Agency on June 22, 2022 that there was a [problem with the deedUto the Property. See Doc. 28,
Amended Complaint! at pg. 4. On June 24, 2022, nearly two months after the Contract was
executed, two weeks after the Warranty Deed was filed and recorded, and two days after hearing
about the [problem with the deed from Sunbelt Title Agency, Defendants filed a Cut Request to
split the Property into separate properties. See Exhibit Cat pg. 3. In their Cut Request,
Defendants noted that the Property had two lots. Jd.
Defendants Lassertion that Plaintiff [can not show that there is a cloud on [the Property (s]
titleis disproven by the aforementioned facts. Plaintiff has proven that the property in question
Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, Plaintiff is the holder of valid
and legal title to the Property, and the title was clouded when Defendants decided to cut the
Property. Based on the foregoing information, Defendants! \Second Affirmative Defense should
be struck.
iii. Defendants! Third Affirmative Defense Should Be Struck
For their third affirmative defense, Defendants argue that [Plaintiff can not show that
there is any cloud on title which is invalid. (1See Doc. 30, (Answer at pg. 7.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, Uwith [LTS being an abbreviation for Hlots{j and
2) The Property (s Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
description and identification number are the same on both the Contract and Warranty Deed.
As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on
June 22, 2022. See Doc. 28, [Amended Complaint(] at pg. 3. Plaintiff and Defendants were
informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedUto
the Property. See Doc. 28, [Amended Complaint(Jat pg. 4. On June 24, 2022, nearly two months
after the Contract was executed, two weeks after the Warranty Deed was filed and recorded, and
two days after hearing about the [problem with the deed! ifrom Sunbelt Title Agency, Defendants
filed a Cut Request to split the Property into separate properties. See Exhibit (CHat pg. 3. In their
Cut Request, Defendants noted that the Property had two lots. /d.
DefendantsLassertion that Plaintiff [ean not show that there is any cloud on title which is
invalid is disproven by the aforementioned facts. Plaintiff has proven that the property in
question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in
the Contract and Warranty Deed, Plaintiff is the holder of valid and legal title to the Property, and
the title was clouded when Defendants decided to cut the property after Plaintiff possessed title.
Based on the foregoing information, Defendants{|Third Affirmative Defense should be
struck.
iv. Defendants! Fourth Affirmative Defense Should Be Struck
For their fourth affirmative defense, Defendants argue that [Plaintiff can not show the
validity of their title and the invalidity of Defendants(title. See Doc. 30, [Answer lat pg. 8.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, with [LTS Obeing an abbreviation for Hots and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, (Amended Complaint(Jat pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal
description and identification number are the same on both the Contract and Warranty Deed.
DefendantsLassertion that [Plaintiff can not show the validity of [his] titleis disproven
by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon
Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty
Deed and Plaintiff possesses title to the Property through the Contract and Warranty Deed.
DefendantsUassertion that Plaintiff cannot prove [the invalidity of Defendants title is
disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331
Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and
Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property. Because
Plaintiff possesses valid and legal title to the Property, Defendants no longer have title and any
alleged claim they are attempting to make with respect to title is invalid.
Based on the foregoing information, Defendants(Fourth Affirmative Defense should be
struck.
Vv. Defendants! Fifth Affirmative Defense Should Be Struck
For their fifth affirmative defense, Defendants argue that [Plaintiff can not prove title to
the property in question. | See [Answer(Jat pg. 8.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, Uwith [LTS being an abbreviation for Hlots{j and
2) The Property (s Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal
description and identification number are the same on both the Contract and Warranty Deed.
DefendantsUassertion that [Plaintiff can not prove title to the property in question is
disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331
Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and
Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property.
Based on the foregoing information, DefendantsUFifth Affirmative Defense should be
struck.
vi. Defendants( Sixth Affirmative Defense Should Be Struck
For their sixth affirmative defense, Defendants argue that [Plaintiff can not prove how
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they validly obtained title to the property. 1See Doc. 30, UAnswerLat pg. 8.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, with [LTS Obeing an abbreviation for Hots and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
description and identification number are the same on both the Contract and Warranty Deed.
Defendants lassertion that [Plaintiff can not prove how [he] validly obtained title to the
property is disproven by the aforementioned facts. Plaintiff has proven that the property in
question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in
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the Contract and Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property.
Based on the foregoing information, Defendants! \Sixth Affirmative Defense should be
struck.
vii. Defendants! Seventh Affirmative Defense Should Be Struck
For their seventh affirmative defense, Defendants argue that [Plaintiff can not prove a
valid chain of title for the Plaintiff. 1See Doc. 30, [Answer lat pg. 9.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, Uwith [LTS being an abbreviation for Hlots{j and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See [Amended Complaint(at pg. 3 regarding Warranty
Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
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description and identification number are the same on both the Contract and Warranty Deed.
Defendants(lassertion that [Plaintiff can not prove a valid chain of title is disproven by
the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon
Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty
Deed, and Plaintiffis the holder of valid and legal title to the Property.
Based on the foregoing information, Defendants(Seventh Affirmative Defense should be
struck.
viii. Defendants! Eighth Affirmative Defense Should Be Struck
For their eighth affirmative defense, Defendants argue that [Plaintiff can not prove why
Defendants claim to the property is not well founded. See Doc. 30, [Answer(Jat pg. 9.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, with [LTS Obeing an abbreviation for Hots and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See [Amended Complaint(at pg. 3 regarding Warranty
Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
13
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
description and identification number are the same on both the Contract and Warranty Deed.
Defendants(assertion that [Plaintiff can not prove why Defendants claim to the property
is not well founded is disproven by the aforementioned facts. Plaintiff has proven that the
property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted
clearly in the Contract and Warranty Deed, and Plaintiff is the holder of valid and legal title to
the Property. In short, the Defendants sold the Property to Plaintiff (and continue to retain the
consideration that Plaintiff paid to Defendants for the Property), and ergo, they do not have a
well-founded claim to the property.
Based on the foregoing information, Defendants Eighth Affirmative Defense should be
struck.
ix. Defendants! Ninth Affirmative Defense Should Be Struck
For their ninth affirmative defense, Defendants argue that [Plaintiff can not show that
there is not an adequate relief at law. See Doc. 30, [Answer(Jat pg. 9.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, Uwith [LTS being an abbreviation for Hlots{j and
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2) The Property (s Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
description and identification number are the same on both the Contract and Warranty Deed.
As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on
June 22, 2022. See Doc. 28, [Amended Complaint(] at pg. 3. Plaintiff and Defendants were
informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedUto
the Property. /d. at pg. 4. On June 24, 2022, nearly two months after the Contract was executed,
two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the
problem with the deed from Sunbelt Title Agency, Defendants filed a Cut Request to split the
Property into separate properties. See Exhibit (CU at pg. 3. In their Cut Request, Defendants
noted that the Property had two lots. /d.
DefendantsUassertion that [Plaintiff can not show that there is not an adequate relief at
lawis disproven by the aforementioned facts. Defendants deprived Plaintiff of full use of the
15
Property by cutting the property after he obtained title. Defendants quite literally split the
Property that they had sold to Plaintiff, thus depriving Plaintiff of the unique land that he
acquired when he purchased the Property from Defendants. The Property is unique and cannot be
truly replaced without equitable relief via specific performance. The only way Plaintiff can get
adequate relief is through an equitable judgment and specific performance.
Based on the foregoing information, Defendants{|Ninth Affirmative Defense should be
struck.
x. Defendants! Tenth Affirmative Defense Should Be Struck
For their tenth affirmative defense, Defendants argue that [Plaintiff has to prove by a
preponderance of the evidence the existence of a contract which sold two lots from Defendants
which was mutually agreed to and understood between the parties See Doc. 30, LAnswerl lat
pg. 9. Plaintiff has provided a contract that shows two lots that was mutually agreed to and
understood between the parties throughout this case, and included it as an exhibit to the Amended
Complaint (Doc. 30).
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, with [LTS Obeing an abbreviation for Hots and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Most notably, the Defendants both executed the Contract, and then proceeded to a closing
with Plaintiff for the Property which was clearly described in the Contract. Id.
16
Further, Defendants provided Plaintiff with a warranty deed (the [Warranty Deed1) for
the Property. The Warranty Deed described the land as [Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal
description and identification number are the same on both the Contract and Warranty Deed.
Defendants(istate that [Plaintiff has to prove by a preponderance of the evidence the
existence of a contract which sold two lots from Defendants which was mutually agreed to and
understood between the parties. | Plaintiff has done so with the aforementioned facts.
Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the
Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, and
Plaintiff is the holder of valid and legal title to the Property. The Defendants executed the
Contract with Plaintiff, and the Contract, executed by both Defendants, clearly listed the Property
as containing two lots.
Based on the foregoing information, Defendants\/Tenth Affirmative Defense should be
struck.
17
xi. Defendants| Eleventh Affirmative Defense Should Be Struck
For their eleventh affirmative defense, Defendants argue that [Plaintiff has to prove by a
preponderance of the evidence that a contract was breached] See Doc. 30, UAnswerLat pg. 10.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, with [LTS Obeing an abbreviation for Hots and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
description and identification number are the same on both the Contract and Warranty Deed.
As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on
18
June 22, 2022. See Doc. 28, (Amended Complaint at pg. 3. Plaintiff and Defendants were
informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedLito
the Property. /d. at pg. 4. On June 24, 2022, nearly two months after the Contract was executed,
two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the
problem with the deed“from Sunbelt Title Agency, Defendants filed a Cut Request to split the
Property into separate properties. See Exhibit (Cat pg. 3. In their Cut Request, Defendants
noted that the Property had two lots. Jd.
Defendants(istate that [Plaintiff has to prove by a preponderance of the evidence that a
contract was breached.) Plaintiff can do so with the aforementioned facts. Additionally,
Defendants both took affirmative steps to deprive Plaintiff of the Property by submitting the Cut
Request. See Exhibit CC The actions of the Defendants to deprive Plaintiff of the Property are
clear, unequivocal and supported by record evidence. Jd.
Based on the foregoing information, Defendants! Eleventh Affirmative Defense should be
struck.
xii. Defendants! Twelfth Affirmative Defense Should Be Struck
For their twelfth affirmative defense, Defendants argue that [Plaintiff has to prove by a
preponderance of the evidence that there was [sic] damages flowing from the breach of a
contractL] See Doc. 30, UAnswerLat pg. 10.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23
19
49, with [LTS Obeing an abbreviation for Hots and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding
Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification
Number.
The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed
a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property
as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed
for the Property; 4) the Contract and Warranty Deed list the property in question as including
Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal
description and identification number are the same on both the Contract and Warranty Deed.
As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on
June 22, 2022. See Doc. 28, (Amended Complaint at pg. 3. Plaintiff and Defendants were
informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedLito
the Property. /d. at pg. 4. On June 24, 2022, nearly two months after the Contract was executed,
two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the
problem with the deed“from Sunbelt Title Agency, Defendants filed a Cut Request to split the
Property into separate properties. See Exhibit (Cat pg. 3. In their Cut Request, Defendants
noted that the Property had two lots. Jd.
Defendants istate that [Plaintiff has to prove by a preponderance of the evidence that
20
there was [sic] damages flowing from the breach of a contract. Plaintiff has done so with the
aforementioned facts. Plaintiff has suffered damages as he had a bona fide purchaser that he was
unable to convey the Property to due to the actions of the Defendants. Plaintiff suffered damages
when he was unable to sell the Property due to the clouded title, and he lost any profit he would
have gained from the sale. Plaintiff has suffered damages due to the cloud on title caused by the
actions of Defendants, and his inability to convey the Property to a bona fide purchaser for value
as a result of the aforementioned.
Based on the foregoing information, Defendants Twelfth Affirmative Defense should be
struck.
xiii. Defendants! Thirteenth Affirmative Defense Should Be Struck
For their thirteenth affirmative defense, Defendants argue that there was a mutual
mistake that occurred between Plaintiff and Defendants. See (Answer lat pg. 10.
As noted previously, on or about May 5, 2022, the parties executed a Vacant Land
Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte,
Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract
lists key identifiers concerning the Property:
1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23
49, with [LTS Obeing an abbreviation for Hots and
2) The Property's Real Property ID Number as 412108382010-0. Jd.
Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the
Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT
CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel
Identification Number as 412108382010. See Doc. 28, (Amended Complaint(Jat pg.
Preview
Filing # 164998454 E-Filed 01/18/2023 07:48:00 PM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA CASE NO: 22-001203-CA JORDAN ZIMILOVER Plaintiff, Vv. FRANK R. MUELLER and ANITA MUELLER, Defendants, PLAINTIFF/S MOTION TO STRIKE AFFIRMATIVE DEFENSES Pursuant to Fla. R. Civ. P. 1.140(b), Plaintiff, JORDAN ZIMILOVER ((Plaintiff.), by and through their undersigned counsel, respectfully moves this Court to strike Defendants, FRANK MUELLER and ANITA MUELLER'S ((DefendantUor, collectively, (Defendants), affirmative defenses and in support thereof states as follows: I INTRODUCTION This action arises out of the Amended Complaint which Plaintiff filed against Defendants on December 9, 2022 (the (Complaint), seeking to quiet title, specific performance, fraud, and asserting breach of contract. Defendants filed their answer and affirmative defenses (the Answerl) on December 29, 2022. Defendants proffered thirty-one (31) affirmative defenses. Plaintiff seeks an order of the Court striking all of Defendants_Affirmative Defenses as improper as a matter of law. Il. LEGAL STANDARD APPLICABLE TO AFFIRMATIVE DEFENSES An affirmative defense is a defense which admits the cause of action [asserted in the plaintiffis complaint], but avoids liability, in whole or in part, by alleging an excuse, justification, 1 or other matter negating or limiting liability. IMTGLO Invs., LP v. Leones, 320 So 3d 769, 774 (Fla. 4th DCA 2021) (quoting State Farm Mut. Auto. Ins. Co. v. Curran, 135 So. 3d 1071, 1079 (Fla. 2014)). [Affirmative defenses do not simply deny the facts of the opposing partys claim. They raise some new matter which defeats an otherwise apparently valid claim. Wiggins v. Portmay Corp., 430 So 2d 541, 542 (Fla. 4th DCA 1983) (citations omitted); see also Wooten v. Collins, 327 So. 2d 795, 797 (Fla. 3d DCA 1976) (citation omitted) (([A]ffirmative defenses are pleas of confession and avoidance. They admit the facts of the opposing party's complaint but raise some new matters which defeat the opposing party(s valid claim{). Consequently, a mere denial of the allegations in a complaint cannot form the basis of an affirmative defense. See Gatt v. Keyes Corp., 446 So. 2d 211, 212 (Fla. 3d DCA 1984); see also Natural Stone Concepts of Naples v. Gonzalez, 2021 Fla. Cir. LEXIS 5420, *1 (striking affirmative defenses, as [[m]ere denials are not appropriate in affirmative defenses and should be stricken() (citing id.); Zito v. Wash. Fed. Sav. & Loan Assoc., 318 So. 2d 175, 176 (Fla. 3d DCA 1975) ({{T]hat portion of the affirmative defense alleging that the note was not in default does not constitute an affirmative defense, but is merely a denial(). Under clearly established law, such arguments, while defensive in nature, do not constitute (affirmative defenses, | |which are limited to matters in the nature of a (confession and avoidance. 1See Moore Meats, Inc. v. Strawn, 313 So 2d 660, 661(662 (Fla. 1975) (Every law student should learn that two classes of defensive pleas in bar exist. The first is a plea by way of traverse. This means a denial of an ultimate fact pleaded in the preceding pleading. The second class of defensive plea is one by way of confession and avoidance. All affirmative defenses are pleas by way of confession and avoidance. They admit the allegations of the plea to which they are directed and allege additional facts that avoid the legal effect of the confession.) (emphasis added); see also Vizcayans, Inc. v. City of Miami, 2013 Fla. Cir. LEXIS 19122, *8 (([the affirmative defense] is not in the nature of confession and avoidance, but amounts to a denial. The defense is hereby STRICKEND. The pleading requirements for an affirmative defense under Florida law are similar to those required for a pleading seeking affirmative relief. See Cady v. Chevy Chase Sav. & Loan, Inc., 528 So. 2d 136, 137[88 (Fla. 4th DCA 1988). Therefore, like a complaint, an affirmative defense is required to allege ultimate facts establishing the Defendant/s entitlement to relief under the legal principle involved, and an affirmative defense which alleges only legal conclusions is insufficient. In other words, certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Thompson v. Bank of N.Y., 862 So. 2d 768, 771 (Fla. 4th DCA 2003) (quotation omitted); see also Bliss v. Carmona, 418 So. 2d 1017, 1019 (Fla. 3d DCA 1982); Walker v. Walker, 254 So. 2d 832, 833(34 (Fla. Ist DCA 1971) ({Just as in the statement of a claim, the requirement of certainty will be insisted upon in the pleading of a defense‘). Purported affirmative defenses that do not satisfy this test are properly stricken. See, e.g., Cady, 528 So. 2d at 137/38 (striking affirmative defenses where [{a] careful analysis of each of the affirmative defenses reflects that 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(). Til. ARGUMENT 1 Defendants/ First Affirmative Defense Should Be Struck For their first affirmative defense, Defendants argue that the Plaintiff [can not show clearly what the property is that [he] alleges he has title to as a result of an alleged sale of a property from Defendants to Plaintiff. See Doc. 30, [Answer(at p. 7. Defendants then state, Plaintiff must prove Plaintiff has title to the property they are seeking to quiet title onand that Plaintiff has not and can not show clearly what property Plaintiff is claiming he has title to. /d. On or about May 5, 2022, the parties executed a Vacant Land Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the Property(). See Exhibit LA at pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, Uwith [LTS being an abbreviation for Hlots{j and 2) The Property (s Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel Identification Number as 412108382010. See [Complaint(at pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal description and identification number are the same on both the Contract and Warranty Deed. Defendants assertion that [Plaintiff can not show clearly what Property [he] has title to is disproven by the aforementioned facts. Plaintiff has proven that the property in question contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed. Based on the foregoing information, Defendants! First Affirmative Defense should be struck. ii. Defendants’ Second Affirmative Defense Should Be Struck For their second affirmative defense, Defendants argue that Plaintiff [can not show that there is a cloud on [the Property s] title. [See Doc. 30, [Answer|lat p. 7. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, Uwith [LTS being an abbreviation for Hlots{j and 2) The Property (s Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal description and identification number are the same on both the Contract and Warranty Deed. The Warranty Deed was filed with the Charlotte County Clerk on June 22, 2022. See Doc. 28, (Amended Complaint(Jat pg. 3. Plaintiff and Defendants were informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedUto the Property. See Doc. 28, Amended Complaint! at pg. 4. On June 24, 2022, nearly two months after the Contract was executed, two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the [problem with the deed from Sunbelt Title Agency, Defendants filed a Cut Request to split the Property into separate properties. See Exhibit Cat pg. 3. In their Cut Request, Defendants noted that the Property had two lots. Jd. Defendants Lassertion that Plaintiff [can not show that there is a cloud on [the Property (s] titleis disproven by the aforementioned facts. Plaintiff has proven that the property in question Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, Plaintiff is the holder of valid and legal title to the Property, and the title was clouded when Defendants decided to cut the Property. Based on the foregoing information, Defendants! \Second Affirmative Defense should be struck. iii. Defendants! Third Affirmative Defense Should Be Struck For their third affirmative defense, Defendants argue that [Plaintiff can not show that there is any cloud on title which is invalid. (1See Doc. 30, (Answer at pg. 7. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, Uwith [LTS being an abbreviation for Hlots{j and 2) The Property (s Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal description and identification number are the same on both the Contract and Warranty Deed. As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on June 22, 2022. See Doc. 28, [Amended Complaint(] at pg. 3. Plaintiff and Defendants were informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedUto the Property. See Doc. 28, [Amended Complaint(Jat pg. 4. On June 24, 2022, nearly two months after the Contract was executed, two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the [problem with the deed! ifrom Sunbelt Title Agency, Defendants filed a Cut Request to split the Property into separate properties. See Exhibit (CHat pg. 3. In their Cut Request, Defendants noted that the Property had two lots. /d. DefendantsLassertion that Plaintiff [ean not show that there is any cloud on title which is invalid is disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, Plaintiff is the holder of valid and legal title to the Property, and the title was clouded when Defendants decided to cut the property after Plaintiff possessed title. Based on the foregoing information, Defendants{|Third Affirmative Defense should be struck. iv. Defendants! Fourth Affirmative Defense Should Be Struck For their fourth affirmative defense, Defendants argue that [Plaintiff can not show the validity of their title and the invalidity of Defendants(title. See Doc. 30, [Answer lat pg. 8. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, with [LTS Obeing an abbreviation for Hots and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, (Amended Complaint(Jat pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal description and identification number are the same on both the Contract and Warranty Deed. DefendantsLassertion that [Plaintiff can not show the validity of [his] titleis disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed and Plaintiff possesses title to the Property through the Contract and Warranty Deed. DefendantsUassertion that Plaintiff cannot prove [the invalidity of Defendants title is disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property. Because Plaintiff possesses valid and legal title to the Property, Defendants no longer have title and any alleged claim they are attempting to make with respect to title is invalid. Based on the foregoing information, Defendants(Fourth Affirmative Defense should be struck. Vv. Defendants! Fifth Affirmative Defense Should Be Struck For their fifth affirmative defense, Defendants argue that [Plaintiff can not prove title to the property in question. | See [Answer(Jat pg. 8. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, Uwith [LTS being an abbreviation for Hlots{j and 2) The Property (s Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal description and identification number are the same on both the Contract and Warranty Deed. DefendantsUassertion that [Plaintiff can not prove title to the property in question is disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property. Based on the foregoing information, DefendantsUFifth Affirmative Defense should be struck. vi. Defendants( Sixth Affirmative Defense Should Be Struck For their sixth affirmative defense, Defendants argue that [Plaintiff can not prove how 10 they validly obtained title to the property. 1See Doc. 30, UAnswerLat pg. 8. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, with [LTS Obeing an abbreviation for Hots and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal description and identification number are the same on both the Contract and Warranty Deed. Defendants lassertion that [Plaintiff can not prove how [he] validly obtained title to the property is disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in 11 the Contract and Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property. Based on the foregoing information, Defendants! \Sixth Affirmative Defense should be struck. vii. Defendants! Seventh Affirmative Defense Should Be Struck For their seventh affirmative defense, Defendants argue that [Plaintiff can not prove a valid chain of title for the Plaintiff. 1See Doc. 30, [Answer lat pg. 9. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, Uwith [LTS being an abbreviation for Hlots{j and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See [Amended Complaint(at pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal 12 description and identification number are the same on both the Contract and Warranty Deed. Defendants(lassertion that [Plaintiff can not prove a valid chain of title is disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, and Plaintiffis the holder of valid and legal title to the Property. Based on the foregoing information, Defendants(Seventh Affirmative Defense should be struck. viii. Defendants! Eighth Affirmative Defense Should Be Struck For their eighth affirmative defense, Defendants argue that [Plaintiff can not prove why Defendants claim to the property is not well founded. See Doc. 30, [Answer(Jat pg. 9. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, with [LTS Obeing an abbreviation for Hots and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See [Amended Complaint(at pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed 13 a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal description and identification number are the same on both the Contract and Warranty Deed. Defendants(assertion that [Plaintiff can not prove why Defendants claim to the property is not well founded is disproven by the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property. In short, the Defendants sold the Property to Plaintiff (and continue to retain the consideration that Plaintiff paid to Defendants for the Property), and ergo, they do not have a well-founded claim to the property. Based on the foregoing information, Defendants Eighth Affirmative Defense should be struck. ix. Defendants! Ninth Affirmative Defense Should Be Struck For their ninth affirmative defense, Defendants argue that [Plaintiff can not show that there is not an adequate relief at law. See Doc. 30, [Answer(Jat pg. 9. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the [Contract|) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit (A Uat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property(s legal description as (PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, Uwith [LTS being an abbreviation for Hlots{j and 14 2) The Property (s Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal description and identification number are the same on both the Contract and Warranty Deed. As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on June 22, 2022. See Doc. 28, [Amended Complaint(] at pg. 3. Plaintiff and Defendants were informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedUto the Property. /d. at pg. 4. On June 24, 2022, nearly two months after the Contract was executed, two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the problem with the deed from Sunbelt Title Agency, Defendants filed a Cut Request to split the Property into separate properties. See Exhibit (CU at pg. 3. In their Cut Request, Defendants noted that the Property had two lots. /d. DefendantsUassertion that [Plaintiff can not show that there is not an adequate relief at lawis disproven by the aforementioned facts. Defendants deprived Plaintiff of full use of the 15 Property by cutting the property after he obtained title. Defendants quite literally split the Property that they had sold to Plaintiff, thus depriving Plaintiff of the unique land that he acquired when he purchased the Property from Defendants. The Property is unique and cannot be truly replaced without equitable relief via specific performance. The only way Plaintiff can get adequate relief is through an equitable judgment and specific performance. Based on the foregoing information, Defendants{|Ninth Affirmative Defense should be struck. x. Defendants! Tenth Affirmative Defense Should Be Struck For their tenth affirmative defense, Defendants argue that [Plaintiff has to prove by a preponderance of the evidence the existence of a contract which sold two lots from Defendants which was mutually agreed to and understood between the parties See Doc. 30, LAnswerl lat pg. 9. Plaintiff has provided a contract that shows two lots that was mutually agreed to and understood between the parties throughout this case, and included it as an exhibit to the Amended Complaint (Doc. 30). As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, with [LTS Obeing an abbreviation for Hots and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Most notably, the Defendants both executed the Contract, and then proceeded to a closing with Plaintiff for the Property which was clearly described in the Contract. Id. 16 Further, Defendants provided Plaintiff with a warranty deed (the [Warranty Deed1) for the Property. The Warranty Deed described the land as [Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property's legal description and identification number are the same on both the Contract and Warranty Deed. Defendants(istate that [Plaintiff has to prove by a preponderance of the evidence the existence of a contract which sold two lots from Defendants which was mutually agreed to and understood between the parties. | Plaintiff has done so with the aforementioned facts. Plaintiff has proven that the property in question is 13331 Marathon Boulevard, the Property contains Lots 23 and 49 as noted clearly in the Contract and Warranty Deed, and Plaintiff is the holder of valid and legal title to the Property. The Defendants executed the Contract with Plaintiff, and the Contract, executed by both Defendants, clearly listed the Property as containing two lots. Based on the foregoing information, Defendants\/Tenth Affirmative Defense should be struck. 17 xi. Defendants| Eleventh Affirmative Defense Should Be Struck For their eleventh affirmative defense, Defendants argue that [Plaintiff has to prove by a preponderance of the evidence that a contract was breached] See Doc. 30, UAnswerLat pg. 10. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, with [LTS Obeing an abbreviation for Hots and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVE( and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, (Amended ComplaintUat pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits [AUland [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property[s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal description and identification number are the same on both the Contract and Warranty Deed. As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on 18 June 22, 2022. See Doc. 28, (Amended Complaint at pg. 3. Plaintiff and Defendants were informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedLito the Property. /d. at pg. 4. On June 24, 2022, nearly two months after the Contract was executed, two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the problem with the deed“from Sunbelt Title Agency, Defendants filed a Cut Request to split the Property into separate properties. See Exhibit (Cat pg. 3. In their Cut Request, Defendants noted that the Property had two lots. Jd. Defendants(istate that [Plaintiff has to prove by a preponderance of the evidence that a contract was breached.) Plaintiff can do so with the aforementioned facts. Additionally, Defendants both took affirmative steps to deprive Plaintiff of the Property by submitting the Cut Request. See Exhibit CC The actions of the Defendants to deprive Plaintiff of the Property are clear, unequivocal and supported by record evidence. Jd. Based on the foregoing information, Defendants! Eleventh Affirmative Defense should be struck. xii. Defendants! Twelfth Affirmative Defense Should Be Struck For their twelfth affirmative defense, Defendants argue that [Plaintiff has to prove by a preponderance of the evidence that there was [sic] damages flowing from the breach of a contractL] See Doc. 30, UAnswerLat pg. 10. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23 19 49, with [LTS Obeing an abbreviation for Hots and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, [Amended Complaint(at pg. 3 regarding Warranty Deed; see Exhibit [BUat pg. 11 regarding description of land and Parcel Identification Number. The evidence from Exhibits (AUand [BUshow that 1) Plaintiff and Defendants executed a Contract for the purchase of the Property, 2) the Property/s Contract for sale lists the property as being at 13331 Marathon Boulevard, 3) Defendants provided Plaintiff with a Warranty Deed for the Property; 4) the Contract and Warranty Deed list the property in question as including Lots 23 and 49, 5) the Warranty Deed was filed and recorded, and 6) the Property!s legal description and identification number are the same on both the Contract and Warranty Deed. As noted previously, the Warranty Deed was filed with the Charlotte County Clerk on June 22, 2022. See Doc. 28, (Amended Complaint at pg. 3. Plaintiff and Defendants were informed by Sunbelt Title Agency on June 22, 2022 that there was a [problem with the deedLito the Property. /d. at pg. 4. On June 24, 2022, nearly two months after the Contract was executed, two weeks after the Warranty Deed was filed and recorded, and two days after hearing about the problem with the deed“from Sunbelt Title Agency, Defendants filed a Cut Request to split the Property into separate properties. See Exhibit (Cat pg. 3. In their Cut Request, Defendants noted that the Property had two lots. Jd. Defendants istate that [Plaintiff has to prove by a preponderance of the evidence that 20 there was [sic] damages flowing from the breach of a contract. Plaintiff has done so with the aforementioned facts. Plaintiff has suffered damages as he had a bona fide purchaser that he was unable to convey the Property to due to the actions of the Defendants. Plaintiff suffered damages when he was unable to sell the Property due to the clouded title, and he lost any profit he would have gained from the sale. Plaintiff has suffered damages due to the cloud on title caused by the actions of Defendants, and his inability to convey the Property to a bona fide purchaser for value as a result of the aforementioned. Based on the foregoing information, Defendants Twelfth Affirmative Defense should be struck. xiii. Defendants! Thirteenth Affirmative Defense Should Be Struck For their thirteenth affirmative defense, Defendants argue that there was a mutual mistake that occurred between Plaintiff and Defendants. See (Answer lat pg. 10. As noted previously, on or about May 5, 2022, the parties executed a Vacant Land Contract (the (Contract) for the sale of the land at 13331 Marathon Boulevard, Port Charlotte, Florida 33981 (the (Property). See Exhibit [ACiat pg. 2. Among other information, the Contract lists key identifiers concerning the Property: 1) The Property's legal description as [PORT CHARLOTTE SEC95 BLK5152 LTS 23 49, with [LTS Obeing an abbreviation for Hots and 2) The Property's Real Property ID Number as 412108382010-0. Jd. Defendants provided Plaintiff with a warranty deed (the [Warranty Deed{) for the Property. The Warranty Deed described the land as Lots 23 and 49, Block 5152, PORT CHARLOTTE SUBDIVISION SECTION NINETY FIVEU and listed the Property(s Parcel Identification Number as 412108382010. See Doc. 28, (Amended Complaint(Jat pg.