IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUITIN AND FOR MIAMI-DADE COUNTY

GENERAL JURISDICTION DIVISIONCASE NO. 11-2052 CA 21

LTA LOGISTICS, INCA Florida corporation, andLESTER TRIMINOANNETTE TRIMINOLESTER TRIMINO, SR.

Plaintiff's and Defendants in the counterclaim,

Enrique Varona

Defendant and Plaintiff in the counterclaim,

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S AFFIRMATIVE DEFENSES

COMES NOW, The Defendant and Plaintiff in the counterclaim, Enrique Varona, proceeding

pro-se, (from hereon, "Varona") a human person and not a corporate fiction or statutory

person, moves this Court for an Order pursuant to Rule 1.140 (f), Fla. R. Civ. P., striking

Plaintiff's affirmative defenses, and as grounds thereof would respectfully show the court as

follows:

1. On the 22nd of September, 2011 Varona filed a five count amended counterclaim

against Plaintiff's (defendant's in the counterclaim).

2. On the 6th of October, 2011 Plaintiff's (defendant in the counterclaim) Motion to

Dismiss the five count amended counterclaim was denied but, for count V of

Emotional Distress.

3. On the 17th of October, 2011 Plaintiff's (defendants in the counterclaim) filed their

answer of affirmative defenses to Varona's amended counterclaim.

4. Each and every one of the Plaintiff's (defendant in the counterclaim) Affirmative

Defenses contained in paragraph no. 1 through 8 are legally insufficient and in-

material, and even if all such alleged facts were true, would still fail to negate

Varona's cause of action. In order to be legally sufficient an affirmative defense

must necessarily negate or limit the alleged cause of action. See Tarwick, sll-4

(2005), relying upon, Florida East Coast Railway Co. v Peters, 73 So. 151 (Fla 1916);

St. Paul Mercury Ins, Co. v Coucher, 837 So. 2d. 483 (Fla 5th DCA 2002). Affirmative

Defenses must be certain and distinctly allege each essential element of that

defense. Chris Craft Industries, Inc. v Van Vaikenberg, 267 So.2d 642, 645, (Fla.

1972). As the Supreme Court explained, Rule 1. 140, Fla. R. Civ. P., "provides that a

motion to strike may be used to seek an order from the court striking any pleading,

(1) *** any insufficient defenses or (2) "...any redundant, in-material, or

incompetent, or scandalous matter." Id. At 645.

5. Plaintiff's (defendants in the counterclaim) affirmative defenses no. (1) of breach of

contract and no. (2) of "unclean hands" to a contract, "not in evidence", are

irrelevant and in-material since there is no contract. And there is no remedy related

to this claim in the forms of equitable relief- specific performance, rescission or

reformation. Affirmative defenses no. (1) & no. (2) should be stricken since none of

these asserted affirmative defenses provides a legal defense to the allegations in

Varona's amended counterclaim complaint; rather they simply contend (incorrectly)

that the law does not provide for the remedy sought in the complaint. However not

one of them correctly cites a binding legal precedent or statute which would prohibit

this Court from granting a judgment to Varona on the theories alleged in the

complaint.

6. Plaintiffs (defendants in the counterclaim) affirmative defense no. (3) stating that

Varona is barred from any recovery by the Economic Loss Rule is irrelevant and

inapplicable since the validity of a fraud claim rests on the Plaintiffs (defendants in

the counterclaim) conduct and not on the types of damages and not on the

existence of an alleged underlying contract, the measure of damages for fraud is the

benefit of the bargain, based on the defrauded party's expectations. In addition the

Florida Supreme Court recently cogently limited the Economic Loss Rule, the Court

held that "the Economic Loss Rule simply does not apply to any situation were there

is no privity between the litigants." See, indemnity Ins Co, v American Aviation, Inc.,

891 So. 2 d 532 (Fla. 2004). Therefore the Economic Loss Rule affirmative defense

is inapplicable and irrelevant to this cause of action and should be stricken.

7. Plaintiffs (defendants in the counterclaim) affirmative defense no. (4) and no. (5)

stating that Varona has improperly commingled several causes of action and has

improperly re-alleged the same causes of action and should be barred from any

recovery is factually incorrect since, see, "If Plaintiff (Varona) pleads several

contracts, and a breach or interference of each, he states several causes of action;

but if he pleads but a single contract and a breach or interference of it in one or

more particulars, he states but a single cause of action, and is immaterial how the

complaint is paragraphed" citing Nelson v Henrichsen, supra...also see; "where

there are distinct and separate contracts, each gives rise to a separate cause of

action." In 1 C. J. pp 1111, 1112 it is said. Plaintiff has also failed to file a demurrer

as required by law see, "A demurrer is the proper remedy where causes of action are

improperly united in a complaint." Bandmann v Davis 23 Mont, 382, 59 Pac 856.

And has filed this reply to the complaint, therefore affirmative defenses no. (4) and

no. (5) have no relevance to the causes of action on this complaint and should be

stricken as well.

8. Plaintiff (defendants in the counterclaim) affirmative defenses contained in

paragraphs no. (6), no. (7), no. (8), meet the same fate and these affirmative

defenses should be stricken as immaterial to this cause of action. A "matter should

be stricken as redundant or immaterial only if it is wholly irrelevant and can have no

bearing on the equities and no influence at all on the decision." Gossett v Ullendorff,

114 Fla. 159, 154 So. 177 (1934). Pentecostal Holiness Church v Mauney, 270

So.2d 762 (Fla. 4th DCA 1972). Hence, none of the Plaintiff's affirmative defenses

present a bona fide legal or factual issue that would serve to preclude a summary

judgment if Varona brought forth evidence supporting its allegations.

WHEREFORE, Enrique Varona, respectfully requests that this Court enter an Order

striking Plaintiff's affirmative defenses, and grant such other relief as this court

deems just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a correct copy of the foregoing was mailed on October 26,

2011, to Scott Egleston P.A. 12000 Biscayne Blvd suite 220, Miami, Florida 33181.

f\tespe\ctfully submitted,

nriqu(.4823 3.W. 125 ctliamil PI 33186

IN THE COUNTY COURT OF THE ELEVENTH JUDICIAL CIRCUITIN AND FOR MIAMI DADE COUNTY, FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 11 20527 CA 21

LTA LOGISTICS, INC.A Florida corporation, andLESTER TRIMINO,ANNETTE TRIMINO,LESTER TRIMINO SR.,

Plaintiff's and Defendant's in the counterclaim,

V.

Enrique Varona,f 5

Defendant and Plaintiff in the counterclaim,

NOTICE OF HEARING

PLEASE TAKE NOTICE, that the undersigned will call up for hearing before the HONORABLE

WILLIAM THOMAS one of the judges in the above styled Court at the Miami Dade County

Court House at 73 West Flagler Street Miami Florida 33125 on Thursday December 1st,

2011 at 8:30 A.M. in Courtroom #8-2 or as soon thereafter as Defendant, Enrique Varona

may be heard on:

DEFENDANT'S MOTION TO STRIKE PLAINTIFF'S AFFIRMATIVE DEFENSES

IN THE CIRCUIT COURT OF THE11TH JUDICIAL CIRCUIT IN AND FORMIAMI-DADE COUNTY, FLORIDA

CIRCUIT CIVIL DIVISIONCASE NO:

N

vs.ORDER

GRANTING/DENYINGPLAINTIFF'S/DEFENDANT'S

Defendant(s),

THIS CAUSE having come on to be heard onon Plaintiff's/Defendant's Motion

and the Court having heard arguments of counsel, and being otherwise advised in the premises, it is hereupon

ORDERED AND ADJUDGED that said Motion be, and the same is hereby

/

DONE AND ORDERED in Chambers at Miami-Dade County, Florida this> .. ...

Copies furnished to: Counsel of Record

117.01-554 3/11

•

^ Copy

DEC 15 2011William L.ThomasCircuit Court Judge

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