in the circuit court of the ninth judicial …ncrispy.com/landmark/complaint_ bunchuk v the landmark...

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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.

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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.

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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 entry-

code 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.

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17. Apart from the inaccessible key-pad, the tight driveway, and the danger of being hit by high-

velocity 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, remote-

control 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

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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..

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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 lease-

signing 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 remote-

entry 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.

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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 entry-

gate 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 ‘self-

help’ eviction practices. A violation of this law shall be liable to the tenant for actual and

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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.

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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

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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.


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.


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.

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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


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.

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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;

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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.


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.

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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”).


against the Defendant for damages, attorney’s fees, costs, and such other relief as is just and

proper.

Count VII: Detrimental Reliance/Promissory Estoppel.


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.

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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 remote-

control 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


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.

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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.’



proper.

Count IX: Breach of Oral Contract


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

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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.’



proper.

Count X: Breach of Implied-In-Fact Contract


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. 1st 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.

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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.



proper.

Count XI: Breach of Implied-In-Law Contract.


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. 5th 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

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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.



proper.

Count XII: Breach of Implied Warranty of Habitability.


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,

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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.

21



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.

22

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.



proper.

XIV: Equitable Relief—Unjust Enrichment.


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.



proper.

23

XV: Breach of the Implied Covenant of Good Faith and Fair Dealing.


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.

24



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 _19th 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 [email protected]

in the circuit court of the ninth judicial …ncrispy.com/landmark/complaint_ bunchuk v the landmark...

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