Filing # 178697021 E-Filed 08/01/2023 04:09:58 PM
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`IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
`IN AND FOR MIAMI-DADE COUNTY, FLORIDA
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`
`
`Plaintiff/Counter-Defendant,
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`JEFFREY V. MCCARTHY,
`
`
`vs.
`
`MICHAEL J. MCCARTHY,
`
`
`
`
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`Defendant/Counter-Plaintiff.
`
`Case No.: 2022-002897-CA-01
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`/
`
`COUNTER-DEFENDANT, JEFFREY V. MCCARTHY’S
`ANSWER AND AFFIRMATIVE DEFENSES
`
`COMES NOW, Counter-Defendant, JEFFREY V. MCCARTHY (“Counter-Defendant”),
`
`by and through his undersigned counsel, and hereby files his Answer to the Counterclaim and
`Affirmative Defenses filed by Counter-Plaintiff, MICHAEL J. MCCARTHY, and states as
`follows:
`
`PARTIES, JURISDICTION, AND VENUE
`
`1.
`2.
`3.
`4.
`5.
`6.
`
`Denied.
`Admitted.
`Admitted.
`Admitted.
`Admitted.
`Admitted.
`
`GENERAL ALLEGATIONS
`
`7.
`Admitted.
`8.
`Denied.
`9.
`Denied.
`10.
`Counter-Defendant is without knowledge or information sufficient to admit or deny
`the allegations in ¶ 10 of the Counterclaim.
`11.
`Denied.
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`

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`12.
`Denied that the February 7, 2000 Lady-Bird Deed is consistent with Decedent’s
`true testamentary intentions, admitted that the Lady-Bird Deed dated February 7, 2000
`speaks for itself.
`13.
`Counter-Defendant is without knowledge or information sufficient to admit or deny
`the allegations in ¶ 13 of the Counterclaim.
`14.
`Denied.
`15.
`Denied.
`16.
`Denied.
`17.
`Admitted.
`18.
`Denied.
`19.
`Denied.
`20.
`Denied.
`21.
`Denied
`22.
`Denied.
`23.
`Denied.
`24.
`Denied.
`25.
`Denied.
`26.
`Denied.
`27.
`Denied.
`28.
`Denied.
`29.
`Denied.
`30.
`Denied.
`31.
`Denied.
`32.
`Admitted.
`33.
`Denied.
`34.
`Denied.
`35.
`Denied.
`36.
`Denied.
`
`COUNT I – QUIET TITLE
`37.
`Counter-Defendant’s answers to ¶ 1 – 36 of the Counterclaim set forth above are
`restated and incorporated herein.
`
`

`

`38.
`Denied.
`39.
`Denied.
`40.
`Denied.
`41.
`Denied.
`42.
`Denied and to the extent that ¶ 42 calls for a legal conclusion, no response is
`required.
`Counter-Defendant denies that Counter-Plaintiff is entitled to the relief requested
`in the Paragraph beginning with “WHEREFORE”.
`
`COUNT II – RESCISSION
`43.
`Counter-Defendant’s answers to ¶ 1 – 36 of the Counterclaim set forth above are
`restated and incorporated herein.
`44.
`Denied.
`45.
`Denied.
`46.
`Denied.
`47.
`Denied.
`48.
`Denied and to the extent that ¶ 48 calls for a legal conclusion, no response is
`required.
`Counter-Defendant denies that Counter-Plaintiff is entitled to the relief requested
`in the Paragraph beginning with “WHEREFORE”.
`
`
`COUNT III – UNJUST ENRICHMENT
`49.
`Counter-Defendant’s answers to ¶ 1 – 36 of the Counterclaim set forth above are
`restated and incorporated herein.
`50.
`Denied.
`51.
`Denied.
`52.
`Denied.
`53.
`Denied.
`54.
`Denied.
`55.
`Denied and to the extent that ¶ 55 calls for a legal conclusion, no response is
`required.
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`

`

`Counter-Defendant denies that Counter-Plaintiff is entitled to the relief requested
`in the Paragraph beginning with “WHEREFORE”.
`
`
`COUNT IV – UNDUE INFLUENCE
`56.
`Counter-Defendant’s answers to ¶ 1 – 36 of the Counterclaim set forth above are
`restated and incorporated herein.
`57.
`Denied.
`58.
`Admitted that Defendant is the sole individual entitled to the Property, denied as to
`the remaining allegations in ¶ 58.
`59.
`Denied.
`60.
`Denied.
`61.
`Denied.
`62.
`Denied.
`Counter-Defendant denies that Counter-Plaintiff is entitled to the relief requested
`in the Paragraph beginning with “WHEREFORE”.
`
`
`AFFIRMATIVE DEFENSES
`I.
`Failure to State a Claim
`1.
`Because Counter-Plaintiff was divested from the Lady Bird Deed before
`Decedent’s death, he is not and never was a title-holder or owner of the property.
`2.
`At best Counter-Plaintiff was a potential holder with a remainderman interest, a
`future interest subject to divestment.
`3.
`Counter-Plaintiff does not meet the requirements for a quiet title action as he does
`not, nor ever had, valid title to the property.
`II.
`Failure to Join an Indispensable Party
`4.
`Counter-Plaintiff fails to join an indispensable party, the Estate of Sandra
`McCarthy, to this action.
`5.
`Because Decedent was a party to the deed(s) that Counter-Plaintiff is seeking to
`rescind, Decedent’s estate is an indispensable party.
`6.
`Because the Estate of Sandra McCarthy is not part of this suit, the rescission count
`fails.
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`

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`III.
`Failure to State a Claim
`7.
`Counter-Plaintiff fails to allege fraud in the inducement and undue influence with
`the required specificity. Counter-Plaintiffs allegations are conclusory and vague and thus
`fail to state a claim.
`
`IV. Unjust Enrichment
`8.
`Unjust enrichment occurs when (1) a party confers a benefit on another party
`(recipient); (2) that recipient voluntarily accepts and retains the benefit conferred; and (3)
`the circumstances are such that it would be inequitable for the recipient to retain benefit
`without paying the value thereof to the party that conferred the benefit. Porsche Cars N.
`Am., Inc. v. Diamond, 140 So. 3d 1090, 1100 (Fla. 3d DCA 2014). For purposes of
`affirmative defenses when the party (A) conferred a benefit to another party (B), the party
`(B) voluntarily accepted that benefit and it would be inequitable for party (B) to not pay
`some value back to party (A). Florida Power Corp. v. City of Winter Park, 887 So. 2d
`1237, 1241 (Fla. 2004).
`9.
`Counter-Plaintiff fails to allege the elements and fails to state a cause of action for
`which relief can be granted.
`10.
`Counter-Plaintiff does not allege he conferred a benefit on Counter-Defendant, but
`rather alleges that the Court and Decedent did.
`11.
`Counter-Plaintiff lacks standing to bring this claim for unjust enrichment.
`12.
`Rather, Counter-Defendant financially supported Decedent and paid Decedent’s
`mortgage and home equity line credit payments in connection with the Property.
`13.
`Counter-Plaintiff seeks to retain the benefit without paying the value thereof.
`V.
`Laches
`14.
`The conduct on the part of Counter-Defendant regarding the Petition for Order
`Authorizing Guardian to Engage in Medicaid Planning on Behalf of Ward and the
`subsequent Medicaid Planning and Medicaid Planning Deeds gives rise to the situation
`upon which the Counterclaim is based.
`15.
`The Counter-Plaintiff knew of this conduct as Counter-Plaintiff was represented by
`counsel and was served with copies of the papers, notice of court hearings and decisions
`and order of the court in the guardianship matter case no. 2020-002328-GD-02
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`

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`(“Guardianship Matter”) and any other guardianship matters pertaining to Decedent that
`Counter-Plaintiff now complains of.
`16.
`Counter-Defendant did not know that Counter-Plaintiff would not assert a contrary
`position to restrict Counter-Defendant’s rights which Counter-Plaintiff now seeks to do.
`17.
`Counter-Defendant will be injured and prejudiced if Counter-Plaintiff is afforded
`the relief sought in the Counterclaim.
`VI. Waiver
`18.
`The conduct on the part of Counter-Defendant, regarding the Petition for Order
`Authorizing Guardian to Engage in Medicaid Planning on Behalf of Ward and the
`subsequent Medicaid Planning and Medicaid Planning Deeds gives rise to the situation
`upon which the Counterclaim is based.
`19.
`Counter-Plaintiff knew of this conduct as Counter-Plaintiff was represented by
`counsel and was served with copies of the papers, notice of court hearings and decisions
`and order of the court in the Guardianship Matter and any other guardianship matters
`pertaining to Decedent.
`20.
`Counter-Plaintiff failed to act and took no position in the Guardianship Matter
`pertaining to Decedent.
`21.
`to
`intention
`Counter-Plaintiff’s conduct demonstrates Counter-Plaintiff’s
`relinquish any and all rights, privileges or advantage pertaining thereto and at issue in this
`litigation.
`
`VII. Collateral Estoppel
`22.
`Counter-Plaintiff had an opportunity in the Guardianship Matter to litigate the very
`same issues that are presently before the Court and which were fully litigated in the
`Guardianship Matter.
`23.
`The issues here, including, but not limited to, Decedent’s capacity, guardianship
`appointment, testamentary intent and medicaid planning were central to the Guardianship
`Matter where there was a full and fair opportunity to litigate those issues, both Counter-
`Plaintiff and Counter-Defendant were involved in those proceedings and represented by
`counsel, and the issues were in-fact litigated before the Court.
`
`
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`

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`VIII. Failure of Consideration
`24.
`Counter-Defendant states that there is a failure of consideration for Counter-
`Plaintiff to be entitled to any portion of ownership of the Property.
`25.
`Counter-Plaintiff failed to contribute towards the maintenance, upkeep and taxes
`associated with the Property after Decedent’s death.
`26.
`Counter-Defendant never gave consideration in exchange for ownership of the
`Property.
`
`Counter-Defendant reserves the right to assert any and all additional defenses and
`affirmative defenses available under the law.
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`CERTIFICATE OF SERVICE
`
` I
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` certify that a copy of this document was e-mailed and electronically served via the Florida
`Courts E-Filing Portal to Jonathan M. Drucker, Esq., attorney for Michael J. McCarthy, and via
`email to jdruc@tdslawyers.com and jmdcourtdocs@tdslawyers.com on August 1, 2023.
`
`Respectfully submitted,
`/s/ Gary M. Singer
`
`Gary M. Singer
`Attorney for Plaintiff/Counter-Defendant
`Florida Bar Number: 544906
`Law Firm of Gary M. Singer, P.A.
`12 SE 7th Street, Suite 820
`Fort Lauderdale, FL 33301
`Telephone: (954) 851-1448
`Facsimile: (954) 252-2189
`Email: singer@garysingerlaw.com
`Secondary Email: service@garysingerlaw.com
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