5. lta logistics vs enrique varona (defendants affirmative defenses to lta lawsuit)
DESCRIPTION
Defendants affirmative defenses to LTA lawsuit. I think they are reasonable.TRANSCRIPT
IN, THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUITIN AND FOR MIAMI DADE COUNTY, FLORIDA
LTA LOGISTICS, INCA Florida corporation, andLESTER TRIMINOPlaintiff, GENERAL JURISDICTION DIVISION
CASE NO. 11-20527 CA 21
V AUG 11 2011
ENRIQUE JOSE VARONA INTHEOFFICEOFDefendant, CIRCUIT COURT DADE co. FL
ANSWER TO COMPLAINT. AFFIRMATIVE DEFENSES. JUDICIAL NOTICE.
VERIFICATION
ANSWER TO COMPLAINT
COMES NOW the Defendant, ENRIQUE JOSE VARONA, through the undersigned
secured party; Enrique Varona (pro-se), (from hereon, Varona) a human person, a
living soul, not a STATUTORY person nor a corporate fiction, and in answering the
allegations of the complaint on file herein, affirms, denies, and alleges as follows:
1) Answering the allegations on paragraph 1, 2, 3 , of the complaint; Varona,
admits each and every allegation contained in said paragraphs.
2) Answering the allegations on paragraph 4 , of the complaint; Varona, is without
knowledge and denies each and every remaining allegation contained in said
paragraph.
3) Answering the allegations on paragraph 5, 6, 7, 8, 9, of the complaint; Varona,
admits each and every allegation contained in said paragraphs.
4) Answering the allegations on paragraph 10, 11, 12 of the complaint; Varona,
denies each and every allegation contained in said paragraphs.
5) Answering the allegations on paragraph 13, 14 , of the complaint; Varona,
alleges that plaintiff's characterization of such material is insufficient and it does not
allow an answer. Varona, denies each and every allegation contained in said
paragraphs.
6) Answering the allegations on paragraph 15, 16, 17, 18, 19, 20, 22, of the
complaint; Varona, denies each and every allegation contained in said Paragraphs.
7) Answering the allegations on paragraph 24, 25, 26, 28, of the complaint;
Varona, denies each and every allegation contained in said paragraphs.
8) Answering the allegations on paragraph 30, 31 of the complaint; Varona, admits
to the allegation contained in such paragraphs.
9) Answering to the allegations on paragraph 32, 33, 34 of the complaint; Varona,
denies each and every allegation contained in said paragraphs.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim in which Relief can be Granted)
In answering Paragraph 10, (incorporates all other paragraphs) Trimino alleges that
Varona entered into a written contract with LTA. The suit alleges that Varona broke the
alleged non disclosure and non solicitation agreement, However, no copy of the
contract / agreement was provided or was proof included that showed that the
defendant entered into this contract of agreement. It appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.
SECOND AFFIRMATIVE DEFENSE
(Truth)
In answering paragraphs 11, through 22 and 24 through 28 and 32, 33, 34 LTA does
not have or own nor it operates 225 trucks. Varona, notes that the Second
Restatement of Torts, lists the "truth" as an affirmative defense to a claim of tortous
interference, the Second Restatement provides: "One who intentionally causes a
third person not to perform a contract or not to enter into a prospective contractual
relation with another does not interfere improperly with the other's contractual
relationship, by giving the third person (a) truthful information or (b) honest advise
within the scope of a request for the advise". Restatement (Second) of Torts S 772-
(1979).
THIRD AFFIRMATIVE DEFENSE
(Fraud)
In answering paragraphs 10 through 17 Varona alleges that LTA is barred by
the provisions of Section 1624 of the Civil Code, i.e., the Statute of Frauds. LTA is
misrepresenting its services to the shipping public by knowingly making a false
statement of fact in their internet advertising such as: stating "operating with over
225 trucks" and "we monitor all ofourr trucks" and showing pictures of "these" trucks
in order to induce the shipping public to contract their services for transport believing
they are carriers and not third party logistics arrangers/ brokers/agents. Varona's
short videos (5-6 minutes) are parodys that alert the viewer that LTA does not have
225 trucks and they do not have Motor Carrier Authority to lawfully make such claims.
See Florida Rule of Civil Procedure 1.120(b) mandates that "the circumstances
constituting fraud ... shall be stated with such particularity as the circumstances may
permit." This means that an affirmative defense or claim "must clearly and concisely
set out the essential facts of the fraud, and not just legal conclusions." Flemenbaum
v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Where a defense of fraud
exists, "it is not so subtle a concept that it cannot be described with precision." Id.
Thompson v. Bank of New York, 862 So.2d 768, 770 (Fla. 4th DCA 2003)
FOURTH AFFIRMATIVE DEFENSE
(Contributory Negligence)
In aswering paragraphs 10 through 34 LTA and Trimino, by advertising such false
and deceitful advertising ie claiming they are carriers without the proper DOT license
and insurance, claiming to own and operate over 225 trucks, to the public at large via
the use of the internet has proven that they acted or failed to act as a reasonable
prudent person and that it was this conduct that contributed to the plaintiff's injury.(
which supposition is made for the purpose of Varona's defense without admitting
such to be a fact), rona See W. v. Caterpillar Tractor Co., Inc., 336 So.2d 80. 90 (Fla.
1976).
FIRM AFFIRMATIVE DEFENSE
(In Pari Delicto)
In answering paragraphs 10, through 34 Varona alleges that each and every
purported Cause of Action in the complaint are barred because LTA have engaged in
acts and courses of conduct which rendered them in part delicto.
SIXTH AFFIRMATIVE DEFENSE
(Equitable Estoppel)
In answering 18, 19, Varona alleges that every Cause of Action contained in the
compalint, are barred by reason of acts, omissions, representations and courses of
conduct by which LTA were led to rely to their detriment, thereby barring, under the
doctrine of equitable estoppel, any Causes of Action asserted by LTA
SEVENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)
In answering paragraphs 11 through 34 Varona alleges that LTA has failed to
mitigate and lessen damages, if any it sustained, as required by law, and are barred
from recovery by reason thereof against Varona.
WHEREFORE, Varona prays that LTA and Trimino take nothing by their Complaint and
that Varona have judgment against LTA and Trimino and recover costs of suit herein
ired, and such other relief as the court may deem proper.
Miarfrr; Florida 33186
JUDICIAL NOTICE
1) To all officers of the court for the CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT
IN AND FOR MIAMI DADE COUNTY, FLORIDA, To this honorable court and all other
parties in this action, are hereby placed on notice under authority of the supremacy
and equal protection clauses of the United States Constitution and the common law
authorities of Haines v Kerner, 404 U.S. 519, Platsky v. C.I.A. 953 F.2d. 25, and
Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) relying on Willy v. Coastal
Corp., 503 U.S. 131, 135 (1992), "United States v. International Business Machines
Corp., 517 U.S. 843, 856 (1996), quoting Payne v. Tennessee, 501 U.S. 808, 842
(1991) (Souter, J., concurring). Trinsey v. Pagliaro, D.C. Pa. 1964, 229 F. Supp. 647,
American Red Cross v. Community Blood Center of the Ozarks, 257 F.3d 859 (8th Cir.
07/25/2001).