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Filing # 91548648 E-Filed 06/24/2019 11:48:50 AM
IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT
FOR LEE COUNTY, FLORIDA CIVIL DIVISION
William Anthony and Patricia
Anthony,
Plaintiffs,
v. Case No. 19-CA-3237
William Binder,
Defendant
DEFENDANT WILLIAM BINDER’S
PARTIAL ANSWER AND AFFIRMATIVE DEFENSES TO COUNT II OF THE
COMPLAINT.
Defendant WILLIAM BINDER (“Defendant”) by and through his attorneys, hereby
submits his Answer to Count II of the Complaint and states as follows:
1. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 1 and, therefore, denies same.
2. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 2 and, therefore, denies same.
JURISDICTION AND VENUE
3. The allegations contained in paragraph 3 purport to be a statement of law to which
no response is required. To the extent a response is required, Defendant is without knowledge as
to the truth of the allegations in paragraph 3 and, therefore denies same.
4. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 4 and therefore denies same.
a. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 4 a. and, therefore, denies same.
eFiled Lee County Clerk of Courts Page 1b. Defendant admits that he is an individual residing in the State of Florida. The
remaining allegations in paragraph 4 b. are denied.
5. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 5 and, therefore denies same.
The Easement, the Dock, and the Walkway
6. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 6 and, therefore denies same.
7. The allegations in paragraph 7 relate to a written document which speaks for
itself. Therefore, the allegations are denied.
8. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 8 and, therefore denies same.
9. Denied.
Count One:
Trespass
10. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 10 is required.
11. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 11 is required.
12. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 12 is required.
13. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 13 is required.
a. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 13 a. is required.
eFiled Lee County Clerk of Courts Page 2b. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 13 b. is required.
c. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 13 c. is required.
d. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 13 d. is required.
e. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 13 e. is required.
14. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 14 is required.
a. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 14 a. is required.
b. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 14 b. is required.
c. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 14 c. is required.
d. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 14 d. is required.
15. Because of his pending Motion to Dismiss, Defendant states that no response to
paragraph 15 is required.
Count Two:
CONVERSION
16. Defendant is without knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph 16 and, therefore denies same.
eFiled Lee County Clerk of Courts Page 317. In response to paragraph 17 of the Complaint, Defendant incorporates by
reference his responses set forth above to the allegations contained in paragraphs 1 through 9 of
the Complaint.
18. This allegation is a legal conclusion to which no response is required, otherwise
denied.
19. Defendant denies the allegations in paragraph 19 of the Complaint.
20. Defendant denies the allegations in paragraph 20 of the Complaint.
21. Defendant denies the allegations in paragraph 21 of the Complaint.
22, Defendant denies the allegations in paragraph 22 of the Complaint.
23. Defendant denies the allegations in paragraph 23 of the Complaint.
24. Defendant denies the allegations in paragraph 24 of the Complaint.
25. Defendant denies the allegations in paragraph 25 of the Complaint.
All allegations not specifically admitted are hereby denied.
AFFIRMATIVE DEFENSES
Subject to and without waiver of the denials contained in his Answer, Defendant states as
follows as his affirmative defenses:
First Affirmative Defense- Failure to State a Cause of Action
The allegations contained in the complaint and each count set forth therein fail to state a
claim against Defendant upon which any relief can be granted.
Second Affirmative Defense — No damage
The dock is located upon the Defendant's property. However, Plaintiffs have use of the
dock through an easement. The Defendant, who was unaware that an easement existed, would
routinely clean the dock of debris, and the dock had not been properly maintained, as it wasconstructed of unfinished, unsealed wood that had been left to the elements for fifteen years. The
dock was worn and rotting, and Defendant believed that the dock was a safety hazard. As such,
Defendant has been maintaining the dock by beginning to replace a section of the dock's
walkway. The actions taken by the Defendant did not damage or destroy the dock, and the
damages claimed by the Plaintiffs for the rotting wood that was removed from the dock is
unfounded.
Third Affirmative Defense - Waiver
Defendant’s claims are barred by the doctrine of waiver. Defendant agreed to reasonably
compensate the Plaintiffs for the removal of the rotting wood from the dock yet Plaintiffs
continue making unreasonable demands of $25,000 for the removal of a few planks of rotting
wood. As such, any claim for damages have been waived.
Fourth Affirmative Defense — Estoppel and/or Laches
Plaintiffs’ claims are barred by the doctrines of estoppel and/or laches.
Fifth Affirmative Defense — Condition Precedent
Plaintiffs’ claims are barred to the extent Plaintiffs failed to fulfill certain conditions
precedent to making any claim against Defendant. Although Plaintiffs claim that they demanded
that Defendant restore the planks in its Complaint, this demand was never made. Rather Plaintiff
instead just demanded payment of $25,000. As such, Plaintiffs have failed to meet the condition
precedent necessary to file a claim for conversion. Further, Defendant is willing to reasonably
compensate the Plaintiffs for removal of the rotting wood from the dock, however, Plaintiffs
have made unreasonable demands for damages and as such, have failed to meet the necessary
conditions to file suit.
Sixth Affirmative Defense — Failure to MitigatePlaintiffs’ claims are barred as Plaintiffs failed to mitigate the damages alleged in the
Complaint, if any, although Plaintiffs had the opportunity and means of doing so.
Seventh Affirmative Defense
Defendant reserves the right to amend this Answer or to assert at trial any other defenses
or affirmative defenses that may become known to Defendant or may be discovered by
Defendant in ongoing discovery in this matter.
WHEREFORE, Defendant demands that the Complaint filed herein against him be
dismissed and that he recover his costs incurred herein.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been furnished
this 24" day of June, 2019, via the Florida Courts E-Filing Portal in accordance with Rule 2.516,
Florida Rules of Judicial Administration to all registered participants; by electronic mail to all
other counsel; and by First-Class US Mail to all pro se parties, as follows:
Charles PT Phoenix, Esq.
Rhodes Tucker
2407 Periwinkle Way, Ste 6
Sanibel FL 33957
cptp@RhodesTucker.com
PORTER WRIGHT MORRIS &
ARTHUR LLP
By: /s/ Sara K. White
JOSHUA M. BIALEK, ESQ.
Florida Bar # 173185
SARA K. WHITES, ESQ.
Florida Bar # 0086014
9132 Strada Place, Third Floor
Naples, Florida 34108
Tel 239.593.2964
Fax 239.593.2922jbialek@porterwright.com
swhite@iporterwright.com
rhuffman@porterwright.com
brosado@porterwright.com
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Filing # 91548648 E-Filed 06/24/2019 11:48:50 AM IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT FOR LEE COUNTY, FLORIDA CIVIL DIVISION William Anthony and Patricia Anthony, Plaintiffs, v. Case No. 19-CA-3237 William Binder, Defendant DEFENDANT WILLIAM BINDER’S PARTIAL ANSWER AND AFFIRMATIVE DEFENSES TO COUNT II OF THE COMPLAINT. Defendant WILLIAM BINDER (“Defendant”) by and through his attorneys, hereby submits his Answer to Count II of the Complaint and states as follows: 1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 1 and, therefore, denies same. 2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 2 and, therefore, denies same. JURISDICTION AND VENUE 3. The allegations contained in paragraph 3 purport to be a statement of law to which no response is required. To the extent a response is required, Defendant is without knowledge as to the truth of the allegations in paragraph 3 and, therefore denies same. 4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 4 and therefore denies same. a. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 4 a. and, therefore, denies same. eFiled Lee County Clerk of Courts Page 1b. Defendant admits that he is an individual residing in the State of Florida. The remaining allegations in paragraph 4 b. are denied. 5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 5 and, therefore denies same. The Easement, the Dock, and the Walkway 6. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 6 and, therefore denies same. 7. The allegations in paragraph 7 relate to a written document which speaks for itself. Therefore, the allegations are denied. 8. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 8 and, therefore denies same. 9. Denied. Count One: Trespass 10. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 10 is required. 11. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 11 is required. 12. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 12 is required. 13. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 13 is required. a. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 13 a. is required. eFiled Lee County Clerk of Courts Page 2b. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 13 b. is required. c. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 13 c. is required. d. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 13 d. is required. e. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 13 e. is required. 14. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 14 is required. a. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 14 a. is required. b. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 14 b. is required. c. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 14 c. is required. d. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 14 d. is required. 15. Because of his pending Motion to Dismiss, Defendant states that no response to paragraph 15 is required. Count Two: CONVERSION 16. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 16 and, therefore denies same. eFiled Lee County Clerk of Courts Page 317. In response to paragraph 17 of the Complaint, Defendant incorporates by reference his responses set forth above to the allegations contained in paragraphs 1 through 9 of the Complaint. 18. This allegation is a legal conclusion to which no response is required, otherwise denied. 19. Defendant denies the allegations in paragraph 19 of the Complaint. 20. Defendant denies the allegations in paragraph 20 of the Complaint. 21. Defendant denies the allegations in paragraph 21 of the Complaint. 22, Defendant denies the allegations in paragraph 22 of the Complaint. 23. Defendant denies the allegations in paragraph 23 of the Complaint. 24. Defendant denies the allegations in paragraph 24 of the Complaint. 25. Defendant denies the allegations in paragraph 25 of the Complaint. All allegations not specifically admitted are hereby denied. AFFIRMATIVE DEFENSES Subject to and without waiver of the denials contained in his Answer, Defendant states as follows as his affirmative defenses: First Affirmative Defense- Failure to State a Cause of Action The allegations contained in the complaint and each count set forth therein fail to state a claim against Defendant upon which any relief can be granted. Second Affirmative Defense — No damage The dock is located upon the Defendant's property. However, Plaintiffs have use of the dock through an easement. The Defendant, who was unaware that an easement existed, would routinely clean the dock of debris, and the dock had not been properly maintained, as it wasconstructed of unfinished, unsealed wood that had been left to the elements for fifteen years. The dock was worn and rotting, and Defendant believed that the dock was a safety hazard. As such, Defendant has been maintaining the dock by beginning to replace a section of the dock's walkway. The actions taken by the Defendant did not damage or destroy the dock, and the damages claimed by the Plaintiffs for the rotting wood that was removed from the dock is unfounded. Third Affirmative Defense - Waiver Defendant’s claims are barred by the doctrine of waiver. Defendant agreed to reasonably compensate the Plaintiffs for the removal of the rotting wood from the dock yet Plaintiffs continue making unreasonable demands of $25,000 for the removal of a few planks of rotting wood. As such, any claim for damages have been waived. Fourth Affirmative Defense — Estoppel and/or Laches Plaintiffs’ claims are barred by the doctrines of estoppel and/or laches. Fifth Affirmative Defense — Condition Precedent Plaintiffs’ claims are barred to the extent Plaintiffs failed to fulfill certain conditions precedent to making any claim against Defendant. Although Plaintiffs claim that they demanded that Defendant restore the planks in its Complaint, this demand was never made. Rather Plaintiff instead just demanded payment of $25,000. As such, Plaintiffs have failed to meet the condition precedent necessary to file a claim for conversion. Further, Defendant is willing to reasonably compensate the Plaintiffs for removal of the rotting wood from the dock, however, Plaintiffs have made unreasonable demands for damages and as such, have failed to meet the necessary conditions to file suit. Sixth Affirmative Defense — Failure to MitigatePlaintiffs’ claims are barred as Plaintiffs failed to mitigate the damages alleged in the Complaint, if any, although Plaintiffs had the opportunity and means of doing so. Seventh Affirmative Defense Defendant reserves the right to amend this Answer or to assert at trial any other defenses or affirmative defenses that may become known to Defendant or may be discovered by Defendant in ongoing discovery in this matter. WHEREFORE, Defendant demands that the Complaint filed herein against him be dismissed and that he recover his costs incurred herein. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been furnished this 24" day of June, 2019, via the Florida Courts E-Filing Portal in accordance with Rule 2.516, Florida Rules of Judicial Administration to all registered participants; by electronic mail to all other counsel; and by First-Class US Mail to all pro se parties, as follows: Charles PT Phoenix, Esq. Rhodes Tucker 2407 Periwinkle Way, Ste 6 Sanibel FL 33957 cptp@RhodesTucker.com PORTER WRIGHT MORRIS & ARTHUR LLP By: /s/ Sara K. White JOSHUA M. BIALEK, ESQ. Florida Bar # 173185 SARA K. WHITES, ESQ. Florida Bar # 0086014 9132 Strada Place, Third Floor Naples, Florida 34108 Tel 239.593.2964 Fax 239.593.2922jbialek@porterwright.com swhite@iporterwright.com rhuffman@porterwright.com brosado@porterwright.com