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Filing # 196244099 E-Filed 04/15/2024 09:46:45 PM
IN THE CIRCUIT COURT OF THE
ELEVENTH JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
CIRCUIT CIVIL DIVISION
CASE NO.: 2021-016939-CA-01
LENDER WEST, LLC, a Florida limited
Liability company,
Plaintiff,
VS.
JAMES R. KENNETT, an individual, and
JOHN BURNETT, an individual,
Defendants.
/
PLAINTIFF’S OMNIBUS MOTION IN LIMINE
Plaintiff Lender West, LLC (“Lender West”), by and through undersigned counsel and
pursuant to Fla. Stat. §§ 90.401, hereby files its Omnibus Motion in Limine to preclude certain
evidence from being admitted at trial in the above-captioned matter, and in support thereof states:
INTRODUCTION
The Court, in its order granting in part Lender West’s Motion for Summary Judgment,
made clear that the only issue to be tried in this case relates to the fair market value of the property
at issue as of May 1, 2019. Any other evidence, argument, or matter that goes beyond that singular
issue at trial, set to begin on April 29, 2024, would not prove or disprove a material fact at issue in
this case, and thus would be wholly irrelevant to these proceedings. In accordance with the Court’s
ruling on summary judgment, Lender West now moves in limine to preclude Defendants James
Kennett and John Burnett (“Defendants”) from entering certain evidence related to affirmative
defenses rendered irrelevant by that Order, or that otherwise fall outside the single issue that must
be resolved by the Court at trial.
As described in further detail below, the Court has already determined that the two
Guaranties signed by Defendants in this case are valid and enforceable, and thus any evidence
seeking to challenge the enforceability of those Guaranties must be barred. Likewise, several
affirmative defenses rely on purported oral statements made by James Potter, an individual who
passed away a decade ago, which are inadmissible hearsay. Further, Defendants should be
precluded from referencing matters outside their own pleadings filed in this case, including
defenses not previously raised in this lawsuit, or from attempting to challenge the viability and
validity of Lender West’s foreclosure of the property back in 2018 and the deficiency judgment
obtained after that foreclosure took place. These matters, all of which are irrelevant under Fla. Stat.
4 90.401, would do nothing to determine a material fact in issue, and would only serve to needlessly
prolong trial.
BACKGROUND
This case relates to the purchase of a commercial property located at 1506 Collins Avenue
in Miami Beach, Florida (hereinafter, the “Property”) by J3 Collins Ave, LLC (“J3 Collins”) in
early 2014. In connection with that purchase, on February 18, 2014, Defendants executed
Continuing and Unconditional Guaranties (the “Guaranties”) that required, among other things,
Defendants’ promise to make full and prompt payment of any outstanding amounts owed under
two Promissory Notes, executed by the parties at the time of the purchase of the Property, should
J3 Collins default under those Notes. Each Guarantor was to be jointly and severally liable to for
any amounts owed upon default.
In 2018, the original lender, TotalBank, assigned the Promissory Notes to Lender West.
When J3 Collins subsequently defaulted on the Notes, Lender West moved to foreclose the
Property. See Lender West v. J3 Collins Ave, LLC, Case No. 2018-040093-CA-01, filed in the
Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the “Foreclosure Proceedings”).
Lender West ultimately submitted the winning bid at a judicial foreclosure sale taking place on
May 1, 2019, and then sought and obtained a deficiency judgment against J3 Collins in the amount
of $4,574,077.77 (the “Deficiency Judgment”) when the Property sold to a third-party buyer in
January 2021. Lender West initiated this action against Defendants to recover the amounts that
remain due and owing pursuant to the Guaranties and the Deficiency Judgment.
On March 7, 2024, this Court granted, in part, Lender West’s Motion for Summary
Judgment. See Order on Plaintiff's Motion for Summary Judgment, D.E. 349 (the “Order on
Summary Judgment’). That Order found, among other things, that there was no genuine issue of
material fact as to Defendants’ breach of the Guaranties. See id. at 9 (“Defendants have failed to
set forth any grounds for this Court to render the Guaranties unenforceable. Thus, the Court finds
summary judgment is appropriate on Counts I and II [of the Complaint].”). The Court also ruled
that several defenses asserted by Defendants related to the execution of those Guaranties were
invalid, and could not be relied upon by Defendants to bar their enforcement. Jd. at 8-15. Based
on those rulings, the Court found that the “on/y remaining issue...for the Court’s determination is
the fair market value of the Property as of May 1, 2019 — the date of the foreclosure sale.” Jd. at
15.
The parties are set for trial for the three-week period commencing April 29, 2024. See
Zoom/Virtual Uniform Order Setting Cause for Non-Jury Trial, Mediation, and Pretrial
Instructions, D.E. 354.
ARGUMENT
I Legal Standard.
The purpose of a motion in limine “is to exclude irrelevant and immaterial matters or to
exclude evidence when its probative value is outweighed by the danger of unfair prejudice.” Devoe
v. W. Auto Supply Co., 537 So. 2d 188, 189 (Fla. 2d DCA 1989). A motion in limine “is similar to
a protective order in that it seeks to prohibit any reference to offending evidence at trial by first
having its admissibility determined outside the presence” of the trier-of-fact. Rosa v. Florida
Power & Light Co., 636 So. 2d 60, 61 (Fla. 2d DCA 1994). “As such, it helps to shorten trial,
simplify issues and reduce the possibility of mistrial, and thereby moves the case toward a
conclusion on the merits.” /d. (internal citation omitted).
Il. Defendants Should Be Precluded From Referring to Any Contractual
Defenses Asserted in This Action.
At trial, Defendants should be barred from referencing or admitting any evidence relating
to the contractual defenses asserted in the Amended Answer and Affirmative Defenses, D.E. 20
(the “Answer”), Defendants’ operative response to Lender West’s Complaint. Defendants’ Answer
contains numerous defenses that pertain to Defendants’ execution of the Guaranties, all of which
set forth conclusory statements about some purported improper conduct engaged upon by J3
Collins — not Lender West — immediately prior to and shortly after the Guaranties were signed.
See Defendants’ Answer, Second Affirmative Defense (alleging duress); Third Affirmative
Defense (unconscionability); Fourth Affirmative Defense (impossibility and impracticability of
performance); Fifth Affirmative Defense (frustration of purpose); Thirteenth Affirmative Defense
(payoff/satisfaction); and Seventeenth Affirmative Defense (secondary obligors).
The Court should preclude Defendants from admitting any evidence pertaining to the
contractual defenses asserted in their Answer because the Court disposed of those issues in its
Order on Summary Judgment, and thus the defenses are no longer relevant to this case. See Fla.
Stat. 90.401 (“Relevant evidence is evidence tending to prove or disprove a material fact.””). As
stated in that Order, “Defendants [ ] failed to set forth any grounds for this Court to render the
Guaranties unenforceable.” See Order on Summary Judgment at 5, 8. The Court likewise rejected
Defendants’ claims that the Guaranties were signed based on alleged promises that each were
members of J3 Collins, finding that “J3 Collins’ purported conduct [does] not preclude Lender
West’s enforcement of the Guaranties.” /d. at 6. Furthermore, the Court found that even if certain
statements concerning J3 Collins were true, “each Guaranty contains unambiguous merger
clauses” which “cannot serve to bar the enforcement of those Guaranties” despite any ownership
interest Defendants may have acquired in J3 Collins. Jd. (citing World-Class Talent Experience,
Inc. v. Giordano, 293 So. 3d 547, 549 (Fla. 4th DCA 2020); Jenkins v. Eckerd Corp., 913 So. 2d
43, 53 (Fla. Ist DCA 2005).
As such, the Court’s findings on summary judgment state in no uncertain terms that the
affirmative defenses pertaining to Defendants’ execution of the Guaranties — and their challenge
to the enforceability of those contracts — have been rejected and cannot be relied upon by
Defendants to avoid the plain terms of the Guaranties. Under these circumstances, the Court should
preclude Defendants from referencing or admitting evidence related to the contractual defenses
asserted in this matter.
lll. Any Statements Allegedly Made by James Potter Are Inadmissible Hearsay.
The Court must also preclude Defendants from attempting to admit any oral statements
made by James Potter, J3 Collins’ former Manager, prior to his death in May 2014. Those
purported statements allegedly relate to representations Mr. Potter made prior to the execution of
the Guaranties at issue in this case. See generally Answer, ff 2, 4, 5, 7, 11 (“Kennett and Burnett
signed the guarantees based solely on James Potter’s representations regarding Kennett’s and
Burnett’s ownership interest in the Project.”). But any statement allegedly made by Mr. Potter
prior to his death are inadmissible hearsay, and cannot be admitted at trial.
The statements of a deceased person are considered textbook hearsay, and any such
statements are inadmissible to prove the truth of the matter asserted. See, e.g., Bailey v. State, 419
So. 2d 721, 722 (Fla. lst DCA 1982); Dawkins v. Varnes, 667 So. 2d 335, 336 (Fla. 1st DCA
1995). While there are exceptions to this rule, Florida’s “Dead Man Statute” is inapplicable to the
facts of this case because it is not “an action or proceeding brought against the personal
representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against
a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian
of a mentally incompetent person.” Fla. Stat. § 90.804(2)(e). Thus, any statements made by Mr.
Potter prior to his death should be deemed inadmissible.
Iv. Defendants’ Arguments and Testimony Must Be Limited to Their Pleadings.
The Court should likewise limit any attempt by Defendants to assert argument or elicit
testimony to matters falling outside their pleadings. In Florida, “[t]he purpose of [the] pleadings is
to present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to
be submitted on the trial.” White v. Fletcher, 90 So. 2d 129, 131 (Fla. 1956) (citations omitted);
see also Olin’s Miami Rent-A-Car, Int. v. Jorgetuon, 239 So. 2d 518, 520 (Fla. 3d DCA 1970).
Indeed, a party must be “bound by the issues as framed [in its pleadings].” Addison v. Carballosa,
48 So. 3d 951, 954 (Fla. 3d DCA 2010); see also Terra Firma Holdings v. Fairwinds Credit Union,
15 So. 3d 885, 886 (Fla. 2d DCA 2009) (“Issues in a case are made solely by the pleadings[.]’”)
(citation omitted)). “The only instance in which legal issues not raised in the pleadings may be
tried and decided is where the issue, although not pled, is tried by consent of the parties.” Terra
Firma Holdings, 15 So. 3d at 886; see also Allett v. Hill, 422 So. 2d 1047, 1049 (Fla. 4th DCA
1982) (“Although [Fla. R. Civ. P] 1.190, and the cases interpreting and construing it, dictate a
liberality on part of the trial judge in granting motions to amend, . . . this “liberality” gradually
diminishes as the case progresses to trial. Also, this rule of liberality does not authorize a party to
. .. introduce new issues, or materially vary the grounds of relief.”) (citation omitted)).
On several occasions, Defendants have attempted to shoehorn “new” affirmative defenses
into this action that have not previously been pled. For example, in responding in opposition to
Plaintiff's Motion for Summary Judgment, Defendants argued that Lender West was not a holder
in due course of the Promissory Notes at issue in this case. See Defendants’ Memorandum in
Opposition to Plaintiff's Motion for Summary Judgment, D.E. 144, at 32-38. This defense was
never pled in Defendants’ Answer, and thus was waived. See, e.g., Deer Brooke South
Homeowners Ass'n of Polk Cty., Inc. v. Battles, 304 So. 3d 40, 42 (Fla. 2d DCA 2020) (“It is well-
settled law in Florida that affirmative defenses not raised are waived.”) (citing Fla. R. Civ. P.
1.140(b)); Wolowitz v. Thoroughbred Motos, Inc., 765 So. 2d 920, 923 (Fla. 2d DCA 2000)
(holding that defendant who did not plead the affirmative defense of accord and satisfaction waived
the defense, and “it should not have been considered by the trial court[.]’).
The Court must limit Defendants’ arguments and any testimony elicited at trial to be
confined to their pleadings. See Addison v. Carballosa, 48 So. 3d 951, 954 (Fla. 3d DCA 2010)
(A party is “bound by the issues as framed [in its] pleadings.”); Terra Firma Holdings v. Fairwinds
Credit Union, 15 So. 3d 885, 886 (Fla. 2d DCA 2009) (“Issues in a case are made solely by the
pleadings[.]’”) (citation omitted)). Lender West does not consent to any new theories of defense
that may be raised at trial, and it would be improper to require it to contend with “new” defenses
Defendants at this late juncture, and which Defendants have had ample opportunity to define prior
to trial. Simon, Pipes & Ross, Inc. v. Cuartas, 834 So. 2d 870, 872 (Fla. 3d DCA 2002) (“[w]here
an objection is raised by the defendant, it is reversible error to permit a plaintiff to amend at the
close of evidence to allege a new theory of recovery.”) (citation omitted); Kind v. Gittman, 889
So. 2d 87, 91 (Fla. 4th DCA 2004) (“Allowing the mid-trial amendment... would have prejudiced
the sellers, as the new issues and grounds of relief would have required additional discovery and
possibly additional witnesses.”)
Accordingly, Defendants should be barred from raising new defenses at trial that are not
included in their Answer.
Vv. The Court Should Require Defendants to Refrain from Disparaging Rebecca
Potter and Lender West.
Defendants, in their Answer, accuse Rebecca Potter — in her role as Manager of Lender
West — of fraud and other wrongful conduct through her operation of Lender West. See Answer,
Sixth Affirmative Defense (“Due to Rebecca Potter’s failure to perform, obstruction, and other
wrongful conduct described herein, Lender West has unclean hands which preclude it from
recovering in this action.”). Defendants likewise refer to Lender West as a “shell company” at
several points to attempt to avoid the obligations required by the Guaranties. /d., Eighteenth
Affirmative Defense (“Lender West’s breach of guaranty claims fail as a matter of law because
Rebecca Potter, a guarantor, cannot buy debt individually or through a shell company[.]”).
These defenses have no relevance to this action, and thus Defendants should be precluded
from referring to any claimed “fraud” or wrongful conduct on the part of Rebecca Potter. See Fla.
Stat. § 90.401. Defendants should likewise be prevented from referring to Lender West as a “shell
company.” As the Court has already found, any such conduct — which Lender West denies — bears
no relation to the sole issue to be determined at trial: the fair market value of the Property as of
May 1, 2019. Order on Summary Judgment, at 15. The evidence would do nothing to prove or
disprove a material fact, and thus meets the very definition of irrelevant evidence as set forth by
the Florida Rules. See Fla. Stat. § 90.401.
VI. The Court Should Limit Any Attempt to Challenge the Foreclosure
Proceedings or the Deficiency Judgment.
As a final point, Defendants have attempted to call into question the validity of the
Foreclosure Proceedings, arguing that they purportedly wanted to bid on the Property at
foreclosure but that some undefined “settlement” with Lender West convinced them not to. See
Answer, Eighth Affirmative Defense (“The parties agreed that, in exchange for Defendants’
forbearance from participating in the foreclosure action and agreeing not to submit bids at the
foreclosure sale, Lender West would obtain the Property at the foreclosure sale and would then
own the Property free and clear and Kennett and Burnett would have no further liability under their
respective guarantees.”); Ninth Affirmative Defense (“Defendants did not continue to contest
foreclosure, or bid at the foreclosure sale as agreed.”); Fourteenth Affirmative Defense (stating
“Defendants [ ] agree[d] not to challenge the foreclosure or bid at the foreclosure sale.”).
Defendants have also challenged the Deficiency Judgment obtained by Lender West subsequent
to the foreclosure sale. See id., Twelfth Affirmative Defense (stating that the "deficiency judgment
was not entered in accordance with Florida law.”); Fifteenth Affirmative Defense (alleging the
“deficiency judgment was procedure by fraud, deceit and other wrongful conduct that renders it
void.”).
These allegations — which Lender West anticipates Defendants will attempt to introduce
evidence pertaining to same — are not relevant to the issues to be tried in this case. First, the Court
has already set the parameters for trial, and the only issue relates to the fair market value of the
Property as of May 1, 2019. See Order on Summary Judgment, at 15. Any challenge to the
Foreclosure Proceedings and Deficiency Judgment are irrelevant to that narrow issue.
Second, the Deficiency Judgment was entered on May 3, 2021, approximately three (3)
years prior to the time in which this case is set to be tried. Defendants, who sought to intervene in
the Foreclosure Proceedings but never obtained a ruling on their Motion, had notice of those
proceedings and the judgments entered in that case; any attempt to set aside that judgment in this
case would be improper as to venue, and plainly untimely. See, e.g., Alexander v. First Nat’l Bank,
275 So. 2d 272, 273 (Fla. 4th DCA 1973) (noting Rule 1.540(b) contemplates that a party seek
relief on the enumerated grounds by motion “in the same proceeding in which the questioned
judgment was entered.”); see also Greenwich Ass’n v. Greenwich Apts., Inc., 979 So. 2d 1116,
1118-19 (Fla. 3d DCA 2008) (stating challenge to judgment must be brought by filing timely
motion in the original trial court within one year of its entry); Fla. R. Civ. P. 1.540(b) (requiring
any judgment procedure by “mistake, inadvertence, surprise, [ ] excusable neglect” or ‘fraud” be
filed “within a reasonable time,” and “not more than | year after the judgment, decree, order or
proceeding was entered or taken.””); Pensacola Beach, LLC vy. Am. Fid. Life Ins. Co., 294 So. 3d
976, 982; Jenkins v. Lennar Corp., 972 So. 2d 1064, 1065 (Fla. 3d DCA 2008) (holding that litigant
was barred from attacking a final judgment of foreclosure when, among other things, the litigant’s
issues were either previously decided on the merits or could have been raised in one of her
previous four actions). The time to “collaterally attack” the Foreclosure Proceedings and the
Deficiency Judgment have long since passed, and the Court should prevent Defendants from
attempting to do so at trial.
CONCLUSION
The Court determined that the Guaranties against Defendants are enforceable, and the only
issue to be tried is the fair market value of the Property as of May 1, 2019. Based on this
determination, Defendants cannot attempt to re-litigate those matters at trial in contravention of
10
the Court’s Order on Lender West’s Motion for Summary Judgment, and must limit the
admissibility of evidence to that particular issue. As such, and in accordance with the above,
Plaintiff respectfully requests that the Court enter an Order
Respectfully submitted,
AVILA RODRIGUEZ HERNANDEZ
MENA & GARRO LLP
Attorneys
for Plaintiff Lender West, LLC
2525 Ponce de Leon Boulevard, Suite 1225
Coral Gables, Florida 33134
Telephone: (305) 779-3577
Facsimile: (305) 779-3561
By: s/ Andrew E. Beaulieu
Jennifer N. Hernandez
Florida Bar No. 85961
jhernandez@avilalaw.com
Andrew E. Beaulieu
Florida Bar No. 115097
abeaulieu@avilalaw.com
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via an
automated email generated by the Florida Courts e-Filing Portal on April 15, 2024, to counsel of
record, including, Joel S. Magolnick, Esq. (magolnick@mm-pa.com), David E. Marko, Esq.
(marko@mm-pa.com), Robert E. Menje, Esq. (menje@mm-pa.com), Counsel
for James Kennett
and John Burnett.
By: s/ Andrew E. Beaulieu
Andrew E. Beaulieu
11
Preview
Filing # 196244099 E-Filed 04/15/2024 09:46:45 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CIRCUIT CIVIL DIVISION CASE NO.: 2021-016939-CA-01 LENDER WEST, LLC, a Florida limited Liability company, Plaintiff, VS. JAMES R. KENNETT, an individual, and JOHN BURNETT, an individual, Defendants. / PLAINTIFF’S OMNIBUS MOTION IN LIMINE Plaintiff Lender West, LLC (“Lender West”), by and through undersigned counsel and pursuant to Fla. Stat. §§ 90.401, hereby files its Omnibus Motion in Limine to preclude certain evidence from being admitted at trial in the above-captioned matter, and in support thereof states: INTRODUCTION The Court, in its order granting in part Lender West’s Motion for Summary Judgment, made clear that the only issue to be tried in this case relates to the fair market value of the property at issue as of May 1, 2019. Any other evidence, argument, or matter that goes beyond that singular issue at trial, set to begin on April 29, 2024, would not prove or disprove a material fact at issue in this case, and thus would be wholly irrelevant to these proceedings. In accordance with the Court’s ruling on summary judgment, Lender West now moves in limine to preclude Defendants James Kennett and John Burnett (“Defendants”) from entering certain evidence related to affirmative defenses rendered irrelevant by that Order, or that otherwise fall outside the single issue that must be resolved by the Court at trial. As described in further detail below, the Court has already determined that the two Guaranties signed by Defendants in this case are valid and enforceable, and thus any evidence seeking to challenge the enforceability of those Guaranties must be barred. Likewise, several affirmative defenses rely on purported oral statements made by James Potter, an individual who passed away a decade ago, which are inadmissible hearsay. Further, Defendants should be precluded from referencing matters outside their own pleadings filed in this case, including defenses not previously raised in this lawsuit, or from attempting to challenge the viability and validity of Lender West’s foreclosure of the property back in 2018 and the deficiency judgment obtained after that foreclosure took place. These matters, all of which are irrelevant under Fla. Stat. 4 90.401, would do nothing to determine a material fact in issue, and would only serve to needlessly prolong trial. BACKGROUND This case relates to the purchase of a commercial property located at 1506 Collins Avenue in Miami Beach, Florida (hereinafter, the “Property”) by J3 Collins Ave, LLC (“J3 Collins”) in early 2014. In connection with that purchase, on February 18, 2014, Defendants executed Continuing and Unconditional Guaranties (the “Guaranties”) that required, among other things, Defendants’ promise to make full and prompt payment of any outstanding amounts owed under two Promissory Notes, executed by the parties at the time of the purchase of the Property, should J3 Collins default under those Notes. Each Guarantor was to be jointly and severally liable to for any amounts owed upon default. In 2018, the original lender, TotalBank, assigned the Promissory Notes to Lender West. When J3 Collins subsequently defaulted on the Notes, Lender West moved to foreclose the Property. See Lender West v. J3 Collins Ave, LLC, Case No. 2018-040093-CA-01, filed in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida (the “Foreclosure Proceedings”). Lender West ultimately submitted the winning bid at a judicial foreclosure sale taking place on May 1, 2019, and then sought and obtained a deficiency judgment against J3 Collins in the amount of $4,574,077.77 (the “Deficiency Judgment”) when the Property sold to a third-party buyer in January 2021. Lender West initiated this action against Defendants to recover the amounts that remain due and owing pursuant to the Guaranties and the Deficiency Judgment. On March 7, 2024, this Court granted, in part, Lender West’s Motion for Summary Judgment. See Order on Plaintiff's Motion for Summary Judgment, D.E. 349 (the “Order on Summary Judgment’). That Order found, among other things, that there was no genuine issue of material fact as to Defendants’ breach of the Guaranties. See id. at 9 (“Defendants have failed to set forth any grounds for this Court to render the Guaranties unenforceable. Thus, the Court finds summary judgment is appropriate on Counts I and II [of the Complaint].”). The Court also ruled that several defenses asserted by Defendants related to the execution of those Guaranties were invalid, and could not be relied upon by Defendants to bar their enforcement. Jd. at 8-15. Based on those rulings, the Court found that the “on/y remaining issue...for the Court’s determination is the fair market value of the Property as of May 1, 2019 — the date of the foreclosure sale.” Jd. at 15. The parties are set for trial for the three-week period commencing April 29, 2024. See Zoom/Virtual Uniform Order Setting Cause for Non-Jury Trial, Mediation, and Pretrial Instructions, D.E. 354. ARGUMENT I Legal Standard. The purpose of a motion in limine “is to exclude irrelevant and immaterial matters or to exclude evidence when its probative value is outweighed by the danger of unfair prejudice.” Devoe v. W. Auto Supply Co., 537 So. 2d 188, 189 (Fla. 2d DCA 1989). A motion in limine “is similar to a protective order in that it seeks to prohibit any reference to offending evidence at trial by first having its admissibility determined outside the presence” of the trier-of-fact. Rosa v. Florida Power & Light Co., 636 So. 2d 60, 61 (Fla. 2d DCA 1994). “As such, it helps to shorten trial, simplify issues and reduce the possibility of mistrial, and thereby moves the case toward a conclusion on the merits.” /d. (internal citation omitted). Il. Defendants Should Be Precluded From Referring to Any Contractual Defenses Asserted in This Action. At trial, Defendants should be barred from referencing or admitting any evidence relating to the contractual defenses asserted in the Amended Answer and Affirmative Defenses, D.E. 20 (the “Answer”), Defendants’ operative response to Lender West’s Complaint. Defendants’ Answer contains numerous defenses that pertain to Defendants’ execution of the Guaranties, all of which set forth conclusory statements about some purported improper conduct engaged upon by J3 Collins — not Lender West — immediately prior to and shortly after the Guaranties were signed. See Defendants’ Answer, Second Affirmative Defense (alleging duress); Third Affirmative Defense (unconscionability); Fourth Affirmative Defense (impossibility and impracticability of performance); Fifth Affirmative Defense (frustration of purpose); Thirteenth Affirmative Defense (payoff/satisfaction); and Seventeenth Affirmative Defense (secondary obligors). The Court should preclude Defendants from admitting any evidence pertaining to the contractual defenses asserted in their Answer because the Court disposed of those issues in its Order on Summary Judgment, and thus the defenses are no longer relevant to this case. See Fla. Stat. 90.401 (“Relevant evidence is evidence tending to prove or disprove a material fact.””). As stated in that Order, “Defendants [ ] failed to set forth any grounds for this Court to render the Guaranties unenforceable.” See Order on Summary Judgment at 5, 8. The Court likewise rejected Defendants’ claims that the Guaranties were signed based on alleged promises that each were members of J3 Collins, finding that “J3 Collins’ purported conduct [does] not preclude Lender West’s enforcement of the Guaranties.” /d. at 6. Furthermore, the Court found that even if certain statements concerning J3 Collins were true, “each Guaranty contains unambiguous merger clauses” which “cannot serve to bar the enforcement of those Guaranties” despite any ownership interest Defendants may have acquired in J3 Collins. Jd. (citing World-Class Talent Experience, Inc. v. Giordano, 293 So. 3d 547, 549 (Fla. 4th DCA 2020); Jenkins v. Eckerd Corp., 913 So. 2d 43, 53 (Fla. Ist DCA 2005). As such, the Court’s findings on summary judgment state in no uncertain terms that the affirmative defenses pertaining to Defendants’ execution of the Guaranties — and their challenge to the enforceability of those contracts — have been rejected and cannot be relied upon by Defendants to avoid the plain terms of the Guaranties. Under these circumstances, the Court should preclude Defendants from referencing or admitting evidence related to the contractual defenses asserted in this matter. lll. Any Statements Allegedly Made by James Potter Are Inadmissible Hearsay. The Court must also preclude Defendants from attempting to admit any oral statements made by James Potter, J3 Collins’ former Manager, prior to his death in May 2014. Those purported statements allegedly relate to representations Mr. Potter made prior to the execution of the Guaranties at issue in this case. See generally Answer, ff 2, 4, 5, 7, 11 (“Kennett and Burnett signed the guarantees based solely on James Potter’s representations regarding Kennett’s and Burnett’s ownership interest in the Project.”). But any statement allegedly made by Mr. Potter prior to his death are inadmissible hearsay, and cannot be admitted at trial. The statements of a deceased person are considered textbook hearsay, and any such statements are inadmissible to prove the truth of the matter asserted. See, e.g., Bailey v. State, 419 So. 2d 721, 722 (Fla. lst DCA 1982); Dawkins v. Varnes, 667 So. 2d 335, 336 (Fla. 1st DCA 1995). While there are exceptions to this rule, Florida’s “Dead Man Statute” is inapplicable to the facts of this case because it is not “an action or proceeding brought against the personal representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person.” Fla. Stat. § 90.804(2)(e). Thus, any statements made by Mr. Potter prior to his death should be deemed inadmissible. Iv. Defendants’ Arguments and Testimony Must Be Limited to Their Pleadings. The Court should likewise limit any attempt by Defendants to assert argument or elicit testimony to matters falling outside their pleadings. In Florida, “[t]he purpose of [the] pleadings is to present, define, and narrow the issues, and to form the foundation of, and to limit, the proof to be submitted on the trial.” White v. Fletcher, 90 So. 2d 129, 131 (Fla. 1956) (citations omitted); see also Olin’s Miami Rent-A-Car, Int. v. Jorgetuon, 239 So. 2d 518, 520 (Fla. 3d DCA 1970). Indeed, a party must be “bound by the issues as framed [in its pleadings].” Addison v. Carballosa, 48 So. 3d 951, 954 (Fla. 3d DCA 2010); see also Terra Firma Holdings v. Fairwinds Credit Union, 15 So. 3d 885, 886 (Fla. 2d DCA 2009) (“Issues in a case are made solely by the pleadings[.]’”) (citation omitted)). “The only instance in which legal issues not raised in the pleadings may be tried and decided is where the issue, although not pled, is tried by consent of the parties.” Terra Firma Holdings, 15 So. 3d at 886; see also Allett v. Hill, 422 So. 2d 1047, 1049 (Fla. 4th DCA 1982) (“Although [Fla. R. Civ. P] 1.190, and the cases interpreting and construing it, dictate a liberality on part of the trial judge in granting motions to amend, . . . this “liberality” gradually diminishes as the case progresses to trial. Also, this rule of liberality does not authorize a party to . .. introduce new issues, or materially vary the grounds of relief.”) (citation omitted)). On several occasions, Defendants have attempted to shoehorn “new” affirmative defenses into this action that have not previously been pled. For example, in responding in opposition to Plaintiff's Motion for Summary Judgment, Defendants argued that Lender West was not a holder in due course of the Promissory Notes at issue in this case. See Defendants’ Memorandum in Opposition to Plaintiff's Motion for Summary Judgment, D.E. 144, at 32-38. This defense was never pled in Defendants’ Answer, and thus was waived. See, e.g., Deer Brooke South Homeowners Ass'n of Polk Cty., Inc. v. Battles, 304 So. 3d 40, 42 (Fla. 2d DCA 2020) (“It is well- settled law in Florida that affirmative defenses not raised are waived.”) (citing Fla. R. Civ. P. 1.140(b)); Wolowitz v. Thoroughbred Motos, Inc., 765 So. 2d 920, 923 (Fla. 2d DCA 2000) (holding that defendant who did not plead the affirmative defense of accord and satisfaction waived the defense, and “it should not have been considered by the trial court[.]’). The Court must limit Defendants’ arguments and any testimony elicited at trial to be confined to their pleadings. See Addison v. Carballosa, 48 So. 3d 951, 954 (Fla. 3d DCA 2010) (A party is “bound by the issues as framed [in its] pleadings.”); Terra Firma Holdings v. Fairwinds Credit Union, 15 So. 3d 885, 886 (Fla. 2d DCA 2009) (“Issues in a case are made solely by the pleadings[.]’”) (citation omitted)). Lender West does not consent to any new theories of defense that may be raised at trial, and it would be improper to require it to contend with “new” defenses Defendants at this late juncture, and which Defendants have had ample opportunity to define prior to trial. Simon, Pipes & Ross, Inc. v. Cuartas, 834 So. 2d 870, 872 (Fla. 3d DCA 2002) (“[w]here an objection is raised by the defendant, it is reversible error to permit a plaintiff to amend at the close of evidence to allege a new theory of recovery.”) (citation omitted); Kind v. Gittman, 889 So. 2d 87, 91 (Fla. 4th DCA 2004) (“Allowing the mid-trial amendment... would have prejudiced the sellers, as the new issues and grounds of relief would have required additional discovery and possibly additional witnesses.”) Accordingly, Defendants should be barred from raising new defenses at trial that are not included in their Answer. Vv. The Court Should Require Defendants to Refrain from Disparaging Rebecca Potter and Lender West. Defendants, in their Answer, accuse Rebecca Potter — in her role as Manager of Lender West — of fraud and other wrongful conduct through her operation of Lender West. See Answer, Sixth Affirmative Defense (“Due to Rebecca Potter’s failure to perform, obstruction, and other wrongful conduct described herein, Lender West has unclean hands which preclude it from recovering in this action.”). Defendants likewise refer to Lender West as a “shell company” at several points to attempt to avoid the obligations required by the Guaranties. /d., Eighteenth Affirmative Defense (“Lender West’s breach of guaranty claims fail as a matter of law because Rebecca Potter, a guarantor, cannot buy debt individually or through a shell company[.]”). These defenses have no relevance to this action, and thus Defendants should be precluded from referring to any claimed “fraud” or wrongful conduct on the part of Rebecca Potter. See Fla. Stat. § 90.401. Defendants should likewise be prevented from referring to Lender West as a “shell company.” As the Court has already found, any such conduct — which Lender West denies — bears no relation to the sole issue to be determined at trial: the fair market value of the Property as of May 1, 2019. Order on Summary Judgment, at 15. The evidence would do nothing to prove or disprove a material fact, and thus meets the very definition of irrelevant evidence as set forth by the Florida Rules. See Fla. Stat. § 90.401. VI. The Court Should Limit Any Attempt to Challenge the Foreclosure Proceedings or the Deficiency Judgment. As a final point, Defendants have attempted to call into question the validity of the Foreclosure Proceedings, arguing that they purportedly wanted to bid on the Property at foreclosure but that some undefined “settlement” with Lender West convinced them not to. See Answer, Eighth Affirmative Defense (“The parties agreed that, in exchange for Defendants’ forbearance from participating in the foreclosure action and agreeing not to submit bids at the foreclosure sale, Lender West would obtain the Property at the foreclosure sale and would then own the Property free and clear and Kennett and Burnett would have no further liability under their respective guarantees.”); Ninth Affirmative Defense (“Defendants did not continue to contest foreclosure, or bid at the foreclosure sale as agreed.”); Fourteenth Affirmative Defense (stating “Defendants [ ] agree[d] not to challenge the foreclosure or bid at the foreclosure sale.”). Defendants have also challenged the Deficiency Judgment obtained by Lender West subsequent to the foreclosure sale. See id., Twelfth Affirmative Defense (stating that the "deficiency judgment was not entered in accordance with Florida law.”); Fifteenth Affirmative Defense (alleging the “deficiency judgment was procedure by fraud, deceit and other wrongful conduct that renders it void.”). These allegations — which Lender West anticipates Defendants will attempt to introduce evidence pertaining to same — are not relevant to the issues to be tried in this case. First, the Court has already set the parameters for trial, and the only issue relates to the fair market value of the Property as of May 1, 2019. See Order on Summary Judgment, at 15. Any challenge to the Foreclosure Proceedings and Deficiency Judgment are irrelevant to that narrow issue. Second, the Deficiency Judgment was entered on May 3, 2021, approximately three (3) years prior to the time in which this case is set to be tried. Defendants, who sought to intervene in the Foreclosure Proceedings but never obtained a ruling on their Motion, had notice of those proceedings and the judgments entered in that case; any attempt to set aside that judgment in this case would be improper as to venue, and plainly untimely. See, e.g., Alexander v. First Nat’l Bank, 275 So. 2d 272, 273 (Fla. 4th DCA 1973) (noting Rule 1.540(b) contemplates that a party seek relief on the enumerated grounds by motion “in the same proceeding in which the questioned judgment was entered.”); see also Greenwich Ass’n v. Greenwich Apts., Inc., 979 So. 2d 1116, 1118-19 (Fla. 3d DCA 2008) (stating challenge to judgment must be brought by filing timely motion in the original trial court within one year of its entry); Fla. R. Civ. P. 1.540(b) (requiring any judgment procedure by “mistake, inadvertence, surprise, [ ] excusable neglect” or ‘fraud” be filed “within a reasonable time,” and “not more than | year after the judgment, decree, order or proceeding was entered or taken.””); Pensacola Beach, LLC vy. Am. Fid. Life Ins. Co., 294 So. 3d 976, 982; Jenkins v. Lennar Corp., 972 So. 2d 1064, 1065 (Fla. 3d DCA 2008) (holding that litigant was barred from attacking a final judgment of foreclosure when, among other things, the litigant’s issues were either previously decided on the merits or could have been raised in one of her previous four actions). The time to “collaterally attack” the Foreclosure Proceedings and the Deficiency Judgment have long since passed, and the Court should prevent Defendants from attempting to do so at trial. CONCLUSION The Court determined that the Guaranties against Defendants are enforceable, and the only issue to be tried is the fair market value of the Property as of May 1, 2019. Based on this determination, Defendants cannot attempt to re-litigate those matters at trial in contravention of 10 the Court’s Order on Lender West’s Motion for Summary Judgment, and must limit the admissibility of evidence to that particular issue. As such, and in accordance with the above, Plaintiff respectfully requests that the Court enter an Order Respectfully submitted, AVILA RODRIGUEZ HERNANDEZ MENA & GARRO LLP Attorneys for Plaintiff Lender West, LLC 2525 Ponce de Leon Boulevard, Suite 1225 Coral Gables, Florida 33134 Telephone: (305) 779-3577 Facsimile: (305) 779-3561 By: s/ Andrew E. Beaulieu Jennifer N. Hernandez Florida Bar No. 85961 jhernandez@avilalaw.com Andrew E. Beaulieu Florida Bar No. 115097 abeaulieu@avilalaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via an automated email generated by the Florida Courts e-Filing Portal on April 15, 2024, to counsel of record, including, Joel S. Magolnick, Esq. (magolnick@mm-pa.com), David E. Marko, Esq. (marko@mm-pa.com), Robert E. Menje, Esq. (menje@mm-pa.com), Counsel for James Kennett and John Burnett. By: s/ Andrew E. Beaulieu Andrew E. Beaulieu 11