IN, THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI DADE COUNTY, FLORIDA

LTA LOGISTICS, INC A Florida corporation, and LESTER TRIMINO Plaintiff,

V

GENERAL JURISDICTION DIVISION CASE NO. 11-20527 CA 21

AUG 11 2011
INTHEOFFICEOF

ENRIQUE JOSE VARONA

Defendant,

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 and denies each and every remaining allegation contained in said

knowledge 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. paragraphs. 6) Answering the allegations on paragraph 15, 16, 17, 18, 19, 20, 22, of the Varona, denies each and every allegation contained in said

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, defendant entered into this contract of agreement. relief. However, no copy of the contract / agreement was provided or was proof included that showed that the It appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to

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).