Case No CA O COMPLAINT (SECOND AMENDED)

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR ORANGE COUNTY, FLORIDA VICKI BUNCHUK, Plaintiff, vs. Case No. 2012-CA-017256-O LANDMARK LUXURY APARTMENTS, LTD., d/b/a THE LANDMARK AT UNIVERSAL, Defendant, / COMPLAINT (SECOND AMENDED) COMES NOW the Plaintiff, VICKI BUNCHUK ( Plaintiff ), by and through the undersigned counsel, and sues the Defendant LANDMARK LUXURY APARTMENTS, LTD. d/b/a THE LANDMARK AT UNIVERSAL ( Defendant ), and states: General Allegations. 1. This is an action in excess of Fifteen Thousand Dollars and 00/100 ($15,000.00), exclusive of attorneys fees and costs. 2. The Plaintiff is an individual, residing in Orange County, Florida. 3. The Defendant is a Florida Corporation, in active operation in Orange County, Florida. 4. All causes of action occurred in Orange County, Florida, and therefore jurisdiction is proper in this Court. 1

Facts Common to All Counts. 5. On or around July, 2012, the Plaintiff was shopping, comparing different apartment complexes in Central Florida, determining where to move. The Plaintiff is an individual of significant financial means, so several prospective apartment complexes were under consideration. 6. On or around late July, 2012, the Plaintiff went to see the salespeople and managers at The Landmark at Universal (the Property ) who, upon information and belief, are the agents of the Defendant (therefore, hereinafter the agents of the Defendant shall also be known as the Defendant ). 7. When meeting with the Defendant, the Plaintiff made clear to the Defendant that security was a primary, material consideration when determining where the Plaintiff would choose to live. The Plaintiff informed the Defendant that the Plaintiff had a baby, and two expensive vehicles. One of the Plaintiff s vehicles is a 2012 Cadillac Escalade, costing $78,000, and the other is a 2013 Mercedes S550, costing $120,000. 8. In response, the Defendant stated that the Property was a secure, gated community, and that the Plaintiff would be given two functional remote-control gate openers one for each of her vehicles. 9. The purpose of these gate openers would be so that the Plaintiff could enter the apartment complex unimpeded, and securely. 10. Based, materially, on these representations by the Defendant as to the security of the Property, and the provision of a gated entry that the Plaintiff could enter swiftly and securely, the Plaintiff believed that she, her family, and her vehicles would be safe, whenever entering the property. 2

11. The Plaintiff therefore entered into a lease with the Defendant, beginning 8/1/12, and ending 8/31/13. Pursuant to the terms of said lease, the Plaintiff paid a deposit totaling Five Hundred Dollars and 00/100 ($500.00), and has duly paid the monthly base rent of One Thousand, Four Hundred and Twenty Dollars and 00/100 ($1,420.00). A copy of said lease (hereinafter Lease Agreement ) is attached hereto as Exhibit A. 12. To date, despite repeated requests from the Plaintiff, the Defendant has not given the Plaintiff any, functioning, remote-control gate openers. As a result, entering the Property has become a dangerous condition. 13. As a result of not having any functional remote-control gate openers, the Plaintiff, as well as other tenants without remote-control gate openers, have to enter the Property by entering a numeric code on a numbered key pad which is enclosed in a square concrete block pillar. 14. In order to access the numbered key pad however, tenants have to negotiate their vehicles around a circular driveway with an extremely narrow circumference. The extremely narrow circumference of the driveway means that vehicles cannot be driven closely enough to the numbered key pad to enter the necessary code from the driver s side window. 15. As a result of this inability to negotiate close enough to the numbered key pad to enter the entry code, tenants have to either: (i) turn extremely sharply, thus risking hitting their vehicles on the concrete block pillar, or (ii) exit their vehicles, to manually enter their entrycode on the key pad. 16. If a tenant has to exit their vehicle to manually enter their entry-code on the key pad, the tenant runs the risk of having their vehicle hit by other vehicles. Specifically, some tenants in the Property are in possession of remote-control gate openers; these tenants thus routinely sweep around the circular entry driveway, and enter the automated gate at speed. Tenants without the remote-control gate opener, stationary at the key pad, are therefore in constant peril of having their vehicles hit. 3

17. Apart from the inaccessible key-pad, the tight driveway, and the danger of being hit by highvelocity vehicles, an additional factor compounding the danger of this entry-way to the Property is that in close quarters, other parked vehicles reverse into the driveway. 18. Prior to the incident with this Plaintiff, the Defendant had had actual notice of these dangers. 19. For example, with respect to damage to vehicles caused by the concrete key pad, the key pad has had several paint chips embedded from vehicles that had previously hit the key pad. Also, the Plaintiff had voiced the above concerns to the Defendant on numerous occasions. 20. On or about 9/17/12, the Plaintiff was attempting to negotiate her Cadillac Escalade near enough to the concrete control panel to manually enter her entry key code. Given the tight circumference of the driveway, the left-rear door of the Plaintiff s Cadillac scratched against the control panel. 21. Three days later, the Plaintiff had to pay a total of One Thousand and Fourteen Dollars and 00/92 ($1,014.92), to repair the damage done to the vehicle. A copy of the invoice, and payment receipt from the Massey-Cadillac body shop is attached hereto as Exhibit B. 22. After this incident, other tenants encountered the same difficulty navigating the concrete control panel. For example, one of the tenants vehicles ripped the fascia off of the control panel. A picture of the damaged control panel is attached hereto for reference, as Exhibit C. 23. As of the date of this filing, no recompense has been made for the damage done to the Plaintiff s vehicle, and the Defendant has not provided the Plaintiff with functional, remotecontrol gate openers. 24. In fact, over the course of several months since moving in, the Plaintiff kept on requesting that the Defendant give the Plaintiff the remote-control gate openers. After the first few 4

requests, the Plaintiff s phone began ringing at odd hours of the day and night. The reason the Plaintiff s phone was ringing randomly, and repeatedly, was because whenever a tenant would enter their code into the front-entrance key pad, it would send a call to the Plaintiff s phone even if the entering tenant was not there to see the Plaintiff. With hundreds of tenants entering, the Plaintiff s phone rang repeatedly, and incessantly. This routing of calls ceased when the Defendant received a letter threatening legal action, sent by the undersigned counsel, who had been retained by the Plaintiff. 25. The Defendant also retaliated against the Plaintiff in a material fashion on or about 11/7/2012. On that occasion the Plaintiff s husband, who commutes to visit the Plaintiff from Pennsylvania, drove up to the entry-way to the Property, and entered the entry code that the Plaintiff had given him. This was the normal routine whenever the Plaintiff s husband visited the Plaintiff. On this occasion, the gate did not open. The Defendants, whose office window allows them to watch the gate, had deliberately stopped the gate from opening. 26. The Plaintiff s husband then went into the Defendants office to inquire as to why the gate was not opening. The Defendants ridiculed the Plaintiff s husband, and effectively barred the Plaintiff from using all of the facilities of the common-area club house, with her family: the swimming pool, video game room, lounge/entertainment area, conference room, movie theater, gym, and office area with faxing/printing capabilities. 27. On or about 10/5/12, the undersigned counsel sent a letter to the Defendant, via certified mail, providing notice that if the foregoing issues were not resolved, the instant action would be filed, and that the Plaintiff would be placing rent for coming months into the registry of the court. A copy of said letter, and proof of mailing, is attached hereto as Exhibit D. 28. The Plaintiff has had to retain the undersigned counsel to prosecute the instant action, and is obligated to pay a reasonable fee therefor. Count I: Retaliatory Conduct in Violation of Florida Statute 83.64.. 5

29. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, infra., and states further that the Defendant has engaged in retaliatory conduct, proscribed by Florida Statutes, and states: 30. On or about 8/1/12, the Plaintiff entered into a lease with the Defendant. During the leasesigning process, the Plaintiff was promised that she would receive two remote-entry keys, to enter the subject Property. 31. The Plaintiff was not given these promised remote-entry keys, so continued asking for them, and complained to the Defendant about the dangerous entry-way to the Property. The Plaintiff damaged her vehicle as a result of this dangerous entry-way, on or about 9/17/12, resulting in $1,014.92 in damages. 32. As a result of the continued requests, and pleas from the Plaintiff, the Defendant routed calls from the front entry-way, to the Plaintiffs telephone, when tenants entered the property. This resulted in the Plaintiff becoming the victim of harassment, as her phone would ring repeatedly, and incessantly. These calls stopped, when the Plaintiff hired the undersigned counsel to write a letter to the Defendant, threatening legal action. 33. Further, after the Plaintiff had complained verbally to the Defendant as to the lack of remoteentry keys, had her attorney write a letter to the Defendant, and after the Plaintiff filed the instant action against the Defendant, the Defendant arbitrarily stopped the Plaintiff s visiting husband from entering onto the Property. When the Plaintiff s husband complained to the Defendant, the Defendant ridiculed him, and caused the Plaintiff to become barred from using the common-areas of the property--the swimming pool, video game room, lounge/entertainment area, conference room, movie theater, gym, and office area with faxing/printing capabilities--with her family. 34. In Florida, it is unlawful for a landlord to act discriminatorily against a tenant, in retaliation for the tenant s good faith conduct. Fla. Stat. 83.64. The Defendant s conduct in harassing the Plaintiff by random phone calls, and preventing the Plaintiff from enjoying the common areas of the property with her family, are thus acts prohibited by Florida law. 6

WHEREFORE, the Plaintiff VICKI BUNCHUK respectfully requests that this Honorable Court enter an order against the Defendant: a. Declaring that the Defendant s conduct has violated Florida Statute 83.64; and b. Granting attorney s fees, costs, damages, and such other relief as is just and proper. Count II: Prohibited Practice by Landlord Florida Statute 83.67. 35. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, infra., and states further that the Defendant has engaged in prohibited practices against the Plaintiff, which are proscribed by Florida Statutes, and states: 36. The Plaintiff s husband commutes regularly from Pennsylvania. As a matter of course therefore, the Plaintiff gives her husband an entry key code to the front gate. As with any other guest to the Property, the Plaintiff s husband therefore routinely enters using this code. 37. On or about 11/7/12, the Plaintiff s Husband attempted to enter the Property, by entering in the numerical code that the Plaintiff had given him. The code did not function, and the entrygate did not open. The Plaintiff s husband went to complain to the management that he could not enter the Property. 38. Upon information and belief, the Defendant had deliberately prevented the Plaintiff s husband from entering the Property. After this incident, the Plaintiff was prohibited from enjoying the common areas of the property-- the swimming pool, video game room, lounge/entertainment area, conference room, movie theater, gym, and office area with faxing/printing capabilities--with her family. These common areas are a material part of the amenities of the Property. 39. In Florida, a landlord is prohibited from preventing a tenant from gaining reasonable access to any dwelling unit. Fla. Stat. 83.67. The purpose of this provision is to prevent selfhelp eviction practices. A violation of this law shall be liable to the tenant for actual and 7

consequential damages or 3 months rent, whichever is greater, and costs, including attorney s fees. 40. In the instant case then, by arbitrarily preventing the Plaintiff s husband from visiting her on the Property, and by preventing the Plaintiff from utilizing a large, and material part of the Property, the Defendant has engaged in a prohibited, self-help eviction practice, as prohibited by Florida Law. WHEREFORE, the Plaintiff VICKI BUNCHUK respectfully requests that this honorable court enter an order against the Defendant: a. Declaring that the Defendant s conduct has violated Florida Statute 83.67; and b. Granting an award to the Plaintiff of actual and consequential damages, or 3 months rent, whichever is found to be greater; and c. Granting costs, attorney s fees, and such other relief as is just and proper. Count III: Unconscionable and Bad Faith Conduct by Defendant, Prohibied Under Florida Landlord & Tenant Statutes. 41. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Defendant has engaged in unconscionable conduct, proscribed by Florida Statutes, and states: 42. Fla. Stat. 83.44 (2012) of Florida s residential landlord-tenant law imposes a duty of good faith on the landlord for performance and enforcement. 43. Fla. Stat. 83.45 (2012) condemns unconscionable rental terms, and permits the court to find as a matter of law that the lease terms are unconscionable, or to permit the parties to present evidence as to the meaning, relationship of the parties and purpose. The court is empowered to refuse to enforce part or all of the rental agreement, or to limit the unconscionable provision so as to avoid an unconscionable result. 8

44. The conduct of the Defendant in promising secure, easy access to the property, and in promising that the Plaintiff would receive two remote-control gate openers, and then inserting: fine-print immunity language (see Exhibit A at para. 20), non-liability personal property damage language (see Exhibit A at para. 22), and non-provision of security services (see Exhibit A at para. 48), is the bad faith, unconscionable conduct proscribed by law. 45. This bad faith, unconscionable conduct is made especially so in light of the actual damage incurred by the Plaintiff, and the continual likelihood of damage, faced each time the Plaintiff enters the Property. 46. Further, by arbitrarily shutting off access to the Property by the Plaintiff s husband, and preventing the Plaintiff from using the common-area club house with her family, the Defendant has made a mockery of its advertising as to the common area facilities available (see Exhibit E, attached), and as to the Plaintiff s rental of a dwelling in the Property. Again, this is the bad faith, unconscionable conduct proscribed by law. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant: a. Finding the Lease Agreement to be unenforceable as to paragraphs 20, 22, & 48); and b. Finding the Lease Agreement to be unenforceable in its entireity; and c. Granting the Plaintiff attorney s fees, costs, and such other relief as is just and proper. Count IV: Plaintiff is Entitled to Equitable Relief Recission of Lease Contract 9

47. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Plaintiff is entitled to equitable relief in the form of recission of the Lease Contract at issue, such that: 48. In the instant case, the Plaintiff is a tenant, and the Defendant is the landlord of the apartment complex in which the tenant resides. 49. On or about 8/1/12, the parties entered into a Lease Contract, attached hereto as Exhibit A. 50. At the time the parties entered into the Lease Contract, the Defendant falsely represented to the Plaintiff that the Defendants Property is up-scale, with the highest level of security. In reality, when entering the Property, the Plaintiff is forced to exit the vehicle each time, thus subjecting her to the threat of attack, or car-jacking. Also, the Defendant s gated entry-way is ineffective to prevent any member of the public from entering the Property, as there exists a pathway for any member of the public to enter, from a local bus stop. 51. At the time the parties entered into the Lease Contract, the Defendant falsely represented to the Plaintiff that the Defendant s Property would be a safe habitation. Instead, each time the Plaintiff has to enter onto the Property, the Plaintiff has to run the gauntlet of a dangerous entry-way condition. The entry-way to the Property causes the Plaintiff to be in peril for the safety of her & her child s physical safety, as well as the safety of her automobiles. The Plaintiff has already incurred $1,014.92 in property damage as a result of attempting to enter the Property safely. 52. At the time the parties entered into the Lease Contract, the Defendant falsely represented to the Plaintiff that the Defendant would provide the Plaintiff with two, working, remote-control gate openers one for each vehicle. This was a material consideration in the formation of the Lease Contract between the parties, as it remedies the danger presented by the entry-way to the Property. However, to date no remote-control gate openers have been provided. The Plaintiff thus remains in danger every time she enters the Property. 10

53. At the time the parties entered into the Lease Contract, the Defendants promised the Plaintiff that the Defendants would provide the Plaintiff with a garage, close to the Plaintiff s apartment. This was a necessity for the Plaintiff, as the Plaintiff had a baby daughter, and two expensive vehicles. However, to date, the only garage that has been provided to the Plaintiff is one that is on the opposite side of the Property. 54. The Plaintiff, by this pleading, has now notified the Defendant of its recission of the Lease Contract, effective from the date 8/1/12. 55. There exists no benefit that the Plaintiff can return to the Defendant, as the Plaintiff has each month paid all rent due to the Defendant. 56. The Plaintiff has no other adequate remedy at law, as no amount of monetary damages will suffice to remedy the dangerous condition of the entry-way to the Property. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order: a. Rescinding the Lease Contract between the Plaintiff and Defendant; and b. Awarding the Plaintiff attorney s fees, costs, and such other relief as is just and proper. Count V: Plaintiff Is Entitled to Equitable Relief/Specific Performance 57. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Defendant should be compelled to specific performance, such that: 58. The Defendant has had actual notice of the dangerous condition presented by the location of its concrete keypad, and the absence of a functioning remote-control opener for tenants on the Property. 11

59. Thus far, the Defendant as failed to remedy this dangerous condition by providing the Plaintiff with the remote-control openers the Defendant promised. 60. Unless the Defendant is required to restore the premises to a safe condition by either relocating its concrete key pad, or by issuing two functioning remote-control openers to the the Plaintiff, there is a very real danger of irreparable harm. 61. If the Defendant is not required to restore the premises to a safe condition, or is not required to issue two, functional, remote-control openers to the Plaintiff, it is highly likely that either: (i) the Plaintiff s vehicle will be hit by another tenant s vehicle while the Plaintiff s vehicle is stopped at the concrete keypad; or (ii) the Plaintiff s minor child will be injured when said minor child is in the Plaintiff s vehicle, and it is so struck; or the Plaintiff herself is injured, also. 62. Further, if the Defendant is not required to restore the premises to a safe condition by issuing two, functional, remote-control openers to the Plaintiff, there exists the foreseeable danger of a criminal carjacking, as the Plaintiff is forced to stop, and exit her vehicle while manually inputting her numbered entry code at the concrete number-pad. 63. Money damages alone will not be sufficient to treat the potential injuries, pain, and suffering, that will result from the Defendant s failure to address the condition of its premises. 64. Equitable relief, in the form of an order requiring specific performance, will serve the public interest in terms of the enforcement of public safety. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an Order for specific performance against the Defendant: a. Compelling the Defendant to provide the Plaintiff with two remote-control openers to the Property; 12

b. Awarding the Plaintiff attorney s fees, costs, and such other relief as is just and proper. Count VI: Defendant is in Violation of Fla. Stat. 83.51--Failure to Maintain Premises. 65. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Defendant is in violation of Fla. Stat. 83.51 (2012), such that: 66. In relevant part, Fla. Stat. 83.51 (2012), provides: (2)(a) Unless otherwise agreed in writing, in addition to the requirements of subsection (1), the landlord of a dwelling unit other than a single-family home or duplex shall, at all times during the tenancy, make reasonable provisions for: 2. Locks and keys. 3. The clean and safe condition of common areas. 67. Florida courts have interpreted the provisions of Fla. Stat. 83.51 to extend to drive-through entrance gates. 68. In the instant case, the Defendant failed in its duty to provide keys, by not providing the most reasonable key for the gate to the Property that would allow the Plaintiff to enter: a remote-control opener. The common-area entryway to the property was not kept by the Defendant in a safe condition. 69. As a direct consequence, on or about 9/17/12, the Plaintiff damaged her Cadillac Escalade by colliding with the concrete control panel situated on the driveway fronting the gateway to the Property, and incurred $1,014.92 in repair costs. 13

70. Further, as a direct consequence of the failure of the Defendant to provide adequate keys, the Plaintiff is restricted to entering the Property through only one of three entry ways; the most dangerous entry way. This is because the other two entry ways are accessible to enter or exit only with a remote entry-key. 71. The Defendants failure to execute the duties laid out in Fla. Stat. 83.51, thus sets up a right of action for monetary damages in the Plaintiff. See Fla. Stat. 83.55 (providing a right of action for monetary damages if..the landlord...fails to comply with the requirements of the rental agreement or this part, the aggrieved party may recover the damages caused by the noncompliance ). WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. Count VII: Detrimental Reliance/Promissory Estoppel. 72. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Plaintiff has relied to its detriment on the promises of the Defendant, and that the Defendant must therefore be estopped from reneging on its promise, such that: 73. In the instant case, the Defendant promised the Plaintiff that the Property was a safe, gated community, such that the Plaintiff would be given two remote-control openers to open the electronic entry-gate to the Property. 74. The Defendant made these promises, knowing that the Plaintiff had two luxury vehicles. 14

75. The Plaintiff relied upon the representations of the Defendant to her detriment. The Plaintiff suffered $1,014.92 in damages to the Plaintiff s vehicle when the Plaintiff, without a remotecontrol opener, had to try to maneuver her car close to the Defendant s concrete key-pad. 76. In order to prevent any further damage and harm, the Defendant must therefore be stopped from reneging on its promise to provide two, functioning, remote-control openers to the Plaintiff. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court grant judgment against the Defendant: a. Compelling the Defendant to tender to the Plaintiff two, functioning, remote-control gate openers; and b. Awarding $1,014.92 in damages; and c. Awarding attorney s fees, costs, and such other relief as is just and proper. Count VIII: Breach of Contract Violation of Lease 77. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Defendant is in breach of its contract with the Plaintiff, such that: 78. On or about 8/1/12, the Plaintiff entered into a Lease Agreement with the Defendant. A copy of said Lease Agreement is attached hereto as Exhibit A. 79. Pursuant to the terms of said Lease Agreement, the Defendant was to provide the Plaintiff with access and use to apartment #308 on the Defendant s Property. See e.g page 1, and paragraph 3, of Exhibit A. In return, the Plaintiff was to tender to the Defendant a monthly rental amount in the sum of $1,420 per month. 15

80. To date, the Plaintiff has duly paid the Defendant the monthly rent. However, to date, the Defendant has not provided the Plaintiff with safe, reasonable access to apartment #308. 81. Specifically, the Defendant has failed to provide the Plaintiff with two remote-control openers to the front gate of the Property. This has caused a dangerous condition for the Plaintiff, whereby, upon each attempted entry onto the Defendant s apartment complex, the Plaintiff has to negotiate her vehicle around a narrow circular driveway and a concrete panel. 82. As a direct consequence, the Plaintiff has therefore suffered $1014.92 in damage to the Plaintiff s vehicle. See attached, Invoices, and receipts of payment, as Exhibit B. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. Count IX: Breach of Oral Contract 83. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further, in the alternative to Count VIII, that the Defendant is in breach of its oral contract with the Plaintiff, such that: 84. On or about 8/1/12, the Plaintiff entered into an oral contract with the Defendant whereby the Defendant promised to provide an apartment for the Plaintiff in a safe, gated community, with safe, reasonable access thereto. In return, the Plaintiff promised to tender rent to the Defendant in the amount of $1,420.00, per month. 85. The Plaintiff has always kept its covenant to pay monthly rent. However, the Defendant breached its obligation to provide safe, reasonable access to apartment #308. Specifically, the Defendant failed to provide the Plaintiff with two remote-control openers to the front gate of the Property. This caused a dangerous condition for the Plaintiff, whereby, upon each 16

attempted entry onto the Defendant s apartment complex, the Plaintiff has had to negotiate her vehicle around a narrow circular driveway and a concrete panel. 86. As a direct consequence, the Plaintiff has therefore suffered $1014.92 in damage to the Plaintiff s vehicle. See attached, Invoices, and receipts of payment, as Exhibit B. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. Count X: Breach of Implied-In-Fact Contract 87. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further, in the alternative to Count VIII, that the Defendant is in breach of its implied-in-fact contract with the Plaintiff, such that: 88. In Florida, an implied-in-fact contract is one in which some or all of the terms are inferred from the conduct of the parties and the circumstances of the case, though not expressed in words. In a contract implied in fact, the assent of the parties is derived from other circumstances, including their course of dealing or usage of trade or course of performance. See e.g. Mc. Millan v. Shively, 23 So.3d 830, at 831 (Fla. 1 st DCA, 2009). 89. In the instant case, on or about 8/1/12, the Plaintiff and Defendant entered into a Lease arrangement. Pursuant to the terms of the lease arrangement, the Plaintiff was to pay $1,420 in monthly rent to the Defendant, and the Defendant, in turn, was to provide apartment #308 in the Property, and safe, reasonable access thereto. 90. During the course of the next three months, the Plaintiff has continued to pay monthly rent in the amount agreed. However, the Defendant has refused to provide safe, reasonable access to apartment #308. 17

91. Specifically, the Defendant has refused to give the Plaintiff remote-control openers for the front gate to the Property. As a result, each time the Plaintiff tries to enter the Property, the Plaintiff has to navigate a dangerous entry-way consisting of a too-narrow, too-tight circular driveway, and a concrete post unfit to accommodate the Plaintiff s vehicles. 92. The Plaintiff has therefore, consequently, incurred $1,014.92 in damage to the Plaintiff s vehicle, as a result of a collision with said concrete post. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. Count XI: Breach of Implied-In-Law Contract. 93. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further, in the alternative to Count VIII, that the Defendant is in breach of its implied-in-law contract with the Plaintiff, such that: 94. In Florida, a contract implied in law is a legal fiction, an obligation created by the law without regard to the parties expression of assent by their words or conduct. The fiction was adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation. The elements of a cause of action for a quasi-contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred; and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it. See e.g. American Safety Ins. Service, Inc. v. Griggs, 959 So.2d 322, 331 (Fla. 5 th DCA, 2007). 95. In the instant case: (1) the Plaintiff has conferred a benefit to the Defendant, in the form of rental payments in the amount of $1,420 per month; (2) the Defendant knows about the 18

Plaintiff s monthly rent payments; and (3) the Defendant always retains the rent payments paid by the Plaintiff. However, (4) it is inequitable for the Defendant to retain the benefit of the monthly rent payments, without a $1,014.92 set-off, as, as a direct consequence of the Defendant s breach of its obligation to the Plaintiff to provide a safe entry-way to the subject Property, the Plaintiff suffered $1,014.92 in damages to her vehicle. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. Count XII: Breach of Implied Warranty of Habitability. 96. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Defendant is in breach of the implied warranty of habitability with respect to its rented Property, such that: 97. The Plaintiff is the tenant, leasing apartment #308, in the Defendant s apartment complex Property. 98. The Defendant is the landlord of said Property, owning and operating said Property either itself, or through its duly authorized agents. 99. At the time the Plaintiff entered into its lease with the Defendant, the Defendant promised reasonable, safe access to the Property, in return for a monthly rent of $1,420.00. 100. At the time the Plaintiff entered into the Lease, the Plaintiff therefore possessed and used the following rights with respect to apartment #308: to liveability, in that their home would function for its purpose, being a residence; to be free from undue nuisances; to be free of fear; to provide a safe, secure home atmosphere for children. These rights, at a minimum, 19

constitute ordinary, normal standards reasonably expected of living quarters of a comparable kind. 101. Since the time of signing the subject Lease with the Defendant, the Plaintiff has not been given safe, reasonable access to her apartment. The Defendant has deliberately withheld access to functional remote-control openers to the entry-gate to the Property. 102. As a result, the only access that the Plaintiff has to the Property is through a dangerous narrow, circular driveway, and a concrete post unfit to accommodate the Plaintiff s vehicles. 103. Every time the Plaintiff attempts to enter the Property, there is no safe, secure entry-way that would serve the proper purpose of this Plaintiff, as a tenant in the Property. 104. Every time the Plaintiff attempts to enter the Property, the Plaintiff is faced with the combined nuisances of a too-narrow, too-tight circular driveway, a concrete block post, and other vehicles moving dangerously close, at an unsafe velocity. 105. Every time the Plaintiff attempts to enter the Property, the Plaintiff is in fear of her vehicle colliding with the concrete block post, or of being hit by another vehicle. 106. Every time the Plaintiff attempts to enter the Property, the Plaintiff does not have a safe environment if her 18-month old daughter is in the vehicle, given the foreseeable possibility of the vehicle colliding with another. 107. A direct, foreseeable consequence is that the Plaintiff s vehicle has been damaged, and that the Plaintiff has incurred $1,014.92 in repair costs. 108. The Defendant is therefore in breach of the basic warranty of habitability implied in its Lease with the Plaintiff, and is liable for the damages the Plaintiff incurred as a result of that breach. 20

WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. XIII: Negligence. 109. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Defendant has committed negligence with respect to its rented Property, such that: 110. In Florida, a cause of action for negligence is properly maintained when there exists: (i) a legal duty owed, on the part of the defendant, to the plaintiff; (ii) a failure on the part of the defendant to perform that duty; (iii) a proximate, causal connection between the defendant s failure, and injury resulting in the plaintiff; and (iv) actual loss or damage on the part of the plaintiff. 111. In the instant case, the Defendant has been negligent with respect to the following particulars: 112. The Defendant is under a recognized, legal duty to provide a safe entry-way to its leased premises, as a lessor. In the instant case, the Defendant breached its duty by creating an unreasonably dangerous condition in its entry-way. The Defendant was responsible for at all times relevant not providing remote-control entry keys to the front gate, and for creating a front entry-way where tenants, when entering as expected without a remote-control entry key, would, reasonably foreseeably, have either themselves, or their vehicles damaged when stopping to manually enter their numerical code. 113. As a result of the unreasonably dangerous condition set up by the Plaintiff, at all times relevant, the Plaintiff was placed in fear of damage to herself, her family, and her vehicle. 21

This fear was actualized in the form of damage to the Plaintiff s vehicle in the amount of $1,014.92. The Plaintiff s material fears, every time she entered the property, as well as the cost of damage to the Plaintiff s vehicle, were proximately caused by the Defendants negligence. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. XIV: Equitable Relief Unjust Enrichment. 114. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that the Defendant has been unjustly enriched, in that: 115. In Florida, a claim for unjust enrichment is properly alleged when: (i) the plaintiff has conferred a benefit on the defendant, who as knowledge thereof; (ii) the defendant voluntarily accepts and retains the benefit conferred; and (iii), the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff. 116. In the instant action: (i) at all times relevant, the Plaintiff has conferred a benefit to the defendant, in the form of monthly rent payments, in the amount of $1,420.00; (ii) whenever rent was tendered, it was accepted in full, by the Defendant; and (iii), the Plaintiff incurred $1,014.92 in damages as a result of the Defendant s knowing failure to provide remote-entry keys to the Defendant, and failing to otherwise provide a safe entry-way to the premises. It would therefore be inequitable for the Defendant to retain the benefit of the Plaintiff s payment in this amount. WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. 22

XV: Breach of the Implied Covenant of Good Faith and Fair Dealing. 117. The Plaintiff restates and realleges the allegations contained in paragraphs 1-28, and states further that, in the alternative to Count VIII infra., the Defendant has violated the implied covenant of good faith and fair dealing, in that: 118. Under Florida law, the implied covenant of good faith and fair dealing is a part of every contract. 119. Breach of the implied covenant of good faith and fair dealing occurs where: (i) the plaintiff and defendant must have been party to a written contract; (ii) the contract is ambiguous about the permissibility or scope of the conduct in question; (iii) the defendant fails or refuses to discharge contractual responsibilities, which unfairly frustrates the contract s purpose and disappoints the plaintiff s expectations; (iv) the defendant s breach deprives the plaintiff of the contract s benefits; and (v), the plaintiff suffers damages. 120. In the instant case, the Plaintiff and Defendant are parties to the subject lease, attached hereto as Exhibit A. At relevant times, the Defendant has disputed its contractual obligation to provide remote-control entry keys to the Plaintiff, which results in ambiguity as to its responsibility as to this obligation. Up to, and beyond the time the Plaintiff s vehicle was damaged, the Defendant failed to provide remote-control entry keys to the Plaintiff; this failure unfairly frustrated the Plaintiff, and disappointed her expectations, as each time the Plaintiff entered the premises, she, her family, and her vehicles were placed in jeopardy. The Defendant s breach therefore deprived the Plaintiff of the benefit of the contract, in terms of providing to the Plaintiff a safe dwelling in which to live. As a result, the Plaintiff suffered $1,014.92 in damage to her vehicle. 23

WHEREFORE, the Plaintiff respectfully requests that this Honorable Court enter an order against the Defendant for damages, attorney s fees, costs, and such other relief as is just and proper. Request for Attorney s Fees. & Jury Trial 121. The Plaintiff hereby requests that she be awarded attorney s fees pursuant to the terms of the subject Lease at issue, Exhibit A, attached hereto, at paragraph 28. 122. And, pursuant to the provisions of the Constitution of Florida, the Plaintiff requests trial by jury on all issues so triable. Respectfully submitted, this _19 th day of December, 2012, Jeremy Thakurdin, Esq., M.B.A. 7901 Kingspointe Parkway, Suite 9 Orlando, FL 32819 Tel: (407) 574-2300 Fax: (407) 412-6359 Florida Bar No. 0051633 Jeremy.thakurdin@gmail.com 24