Reply to Counterclaim

7/27/2019 Reply to Counterclaim

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IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS

STATE OF MISSOURI

STEPHEN TRIPP, ANNA TRIPP and )DAVID FARIAS, )

)Plaintiffs/Counter-Defendants, ) Cause No.: 1322-CC01260)

vs. )) Division 1

MARTA A. RAMIREZ-MALDONADO, )And ARCELIAS ORIGINAL, LLC, )

)Defendants/Counter-Plaintiffs. )

PLAINTIFFS REPLY TO DEFENDANTS COUNTER-PETITION

COME NOW Plaintiffs/Counter-Defendants, Stephen Tripp, Anna Tripp and David

Farias (collectively as Plaintiffs), by and through their undersigned counsel, and for their

Reply to Defendants/Counter-Plaintiffs Marta A. Ramirez-Maldonado and Arcelias Original,

LLCs (collectively as Defendants) Counter-Petition, hereby state and allege as follows:

ALLEGATIONS COMMON TO ALL COUNTS

1. Plaintiffs Exhibit A referenced in Paragraph 1 of Defendants Counter-Petition isin writing, speaks for itself, and provides the best evidence of its content. Plaintiffs deny the

remaining allegations contained in Paragraph 1 of Defendants Counter-Petition.

2. Admit only that Defendant Marta A. Ramirez-Maldonado (Marta) entered intoan agreement with Plaintiffs Anna and Stephen Tripp whereby Anna and Stephen would loan

funds and items of personal property to make required purchases for the company to assist with

restaurant start-up and operational costs. Deny the remaining allegations contained in Paragraph

2 of Defendants Counter-Petition.

3. Admit only that Plaintiff Anna Tripp entered into an agreement with Marta, onbehalf of both Defendants, whereby Anna would work full-time at the restaurant and administer,


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record, and provide advice regarding the expenditure of all ongoing operating funds for

purchasing goods, supplies, equipment, services, licenses, permits, repairs, building

modifications and payroll on behalf of Arcelias Original, LLC. Admit further that Marta agreed

to compensate Anna for this work in the amount of $8.50 per hour, and that Anna was to be paid

on a bi-weekly basis. Deny the remaining allegations contained in Paragraph 3 of Defendants

Counter-Petition.

4. Deny.COUNT I

5.

Plaintiff Anna Tripp incorporates her Answers to Paragraphs 1 through 4 of

Defendants Counter-Petition by reference, and expressly denies any allegations not specifically

addressed herein.

6. Admit that Plaintiff Anna Tripp entered into an agreement with both Defendantsto provide services in exchange for hourly compensation.

7. Paragraph 7 of Defendants Counter-Petition states a legal conclusion, not a fact,and therefore Plaintiff Anna Tripp is not required to answer. To the extent Paragraph 7 does

require an answer, Anna denies the same.

8. Paragraph 8 of Defendants Counter-Petition states a legal conclusion, not a fact,and therefore Plaintiff Anna Tripp is not required to answer. To the extent Paragraph 8 does






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Counter-Petition.

10. Plaintiff Anna Tripp denies the allegations contained in Paragraph 10 ofDefendants Counter-Petition, including all sub-parts, and requires strict proof thereof.

11. Deny.COUNT II

12.

Plaintiffs Anna and Stephen Tripp incorporate their Answers to Paragraphs 1

through 11 of Defendants Counter-Petition by reference, and expressly deny any allegations not

specifically addressed herein.




modifications and payroll on behalf of Arcelias Original, LLC. Deny the remaining allegations

contained in Paragraph 13 of Defendants Counter-Petition.

14. Deny.15. Deny.16. Admit only that Plaintiff Anna Tripp entered into an agreement with Marta, on

behalf of both Defendants, whereby Anna would work full-time at the restaurant and administer,




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modifications and payroll on behalf of Arcelias Original, LLC. Deny the remaining allegations

contained in Paragraph 16 of Defendants Counter-Petition.

17. Deny.18. Plaintiff Anna Tripp denies the allegations contained in Paragraph 18 of

Defendants Counter-Petition, including all sub-parts, and requires strict proof thereof.

19. Deny.20. Deny.21. Deny.22.

Deny.

COUNT III

23. Plaintiff Anna Tripp incorporates her Answers to Paragraphs 1 through 22 ofDefendants Counter-Petition by reference, and expressly denies any allegations not specifically

addressed herein.







Counter-Petition, including all sub-parts.

25. Deny.26. Deny.


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27. Admit only that Marta agreed to compensate Anna for her services in the amountof $8.50 per hour, and that Anna was to be paid on a bi-weekly basis. Deny the remaining

allegations contained in Paragraph 27 of Defendants Counter-Petition, including all sub-parts.

28. Deny.29. Plaintiff Anna Tripp denies the allegations contained in Paragraph 29 of

Defendants Counter-Petition, and requires strict proof thereof.

30. Deny.31. Admit.32.

Deny.

33. Deny.COUNT IV

34. Plaintiff Anna Tripp incorporates her Answers to Paragraphs 1 through 33 ofDefendants Counter-Petition by reference, and expressly denies any allegations not specifically

addressed herein.







Counter-Petition.

36. Paragraph 36 of Defendants Counter-Petition states a legal conclusion, not a fact,


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and therefore Plaintiff Anna Tripp is not required to answer. To the extent Paragraph 36 does


37. Plaintiff Anna Tripp denies the allegations contained in Paragraph 37 ofDefendants Counter-Petition, including all sub-parts, and requires strict proof thereof.

38. Deny.39. Deny.

AFFIRMATIVE DEFENSES

COME NOW Plaintiffs, by and through their undersigned counsel, and for their

affirmative defenses to Defendants Counter-Petition, hereby state and allege as follows:

1. For further answer and affirmative defense, Plaintiffs state that DefendantsCounter-Petition fails to state a claim upon which relief can be granted.

2. For further answer and affirmative defense, Plaintiffs state that Defendantsclaims are barred by the doctrine of laches.

3. For further answer and affirmative defense, Plaintiffs state that Defendantsclaims are barred by the doctrine of unclean hands.

4. For further answer and affirmative defense, Plaintiffs state that Defendantsmaterially breached their agreement with Plaintiff Anna Tripp prior to any alleged breach by

Anna.

5. For further answer and affirmative defense, Plaintiffs state that Plaintiff AnnaTripp never agreed to and was never expected to manage any of the staff at the Arcelias

Original, LLC.


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6. For further answer and affirmative defense, Plaintiffs state that Plaintiff AnnaTripp performed her services for Defendants in good faith and with reasonable care based upon

her prior managerial experience and expertise.

7. For further answer and affirmative defense, Plaintiffs state that any actionsPlaintiff Anna Tripp took on behalf of Defendant Arcelias Original, LLC were based upon

sound business judgment and were within Annas authority.

8. For further answer and affirmative defense, Plaintiffs state that at all timesrelevant hereto, including prior to Plaintiff Anna Tripps agreement with Marta to perform

certain services for the Arcelias Original, LLC, Marta was fully aware of Annas managerial

skills, knowledge and experience based upon Annas many years as a manager in retail stores

and her years of involvement in the management of Arcelias Mexicana.

9. For further answer and affirmative defense, Plaintiffs state that prior to obtainingthe loans require to open the Arcelias Original, restaurant, Plaintiff Anna Tripp, Marta and

Martas brothers entered into an agreement whereby Anna had authority to act on Martas behalf

when Marta was not present at the restaurant or was otherwise involved in activities that

prevented her from attending to business.

10. For further answer and affirmative defense, Plaintiffs state that Defendants failedto exercise good faith and fair dealing toward Plaintiffs.

11. For further answer and affirmative defense, Plaintiffs state that Defendants did notsuffer any damages attributable to any actions of Plaintiffs. Defendants alleged damages were

caused by Defendants own carelessness, inexperience and improper operation and management

of the Arcelias Original, LLC, and that such actions directly caused or directly contributed to

cause any and all damages Defendants claim to have sustained.


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12. For further answer and affirmative defense, Plaintiffs state that Defendants are notentitled to any damages against Plaintiffs regardless of whether liability is established. To be

sure, Plaintiffs are entitled to a set-off of Defendants alleged damages to the extent of their

advancement of funds and purchases on behalf of Defendants in the amount of approximately

$40,046.62, said amount which is far greater than Defendants alleged damages.

13. For further answer and affirmative defense, Plaintiffs state that punitive damages areimproper because Plaintiffs did not take any actions with malicious and wanton intent or in

disregard of Defendants rights.

14.

For further answer and affirmative defense, Plaintiffs state that punitive damages are

violative of their constitutional rights under the Fifth, Sixth, Eighth and Fourteenth Amendments of

the United States Constitution in that they are penal in nature and tantamount to the imposition of a

criminal fine; the guidelines, standards and/or instructions for the imposition of punitive damages

are vague, indefinite and uncertain and set no limit on the damages which can be awarded and

furthermore, do not apprise Plaintiffs of the conduct that will subject them to criminal penalties;

exposes Plaintiffs to multiple punishment and fines for the same act, and discriminates against

Plaintiffs on the basis of wealth in that different amounts can be awarded against different parties

for the same act but who differ only in material wealth.

15. Plaintiffs incorporate herein by reference the allegations set forth in their Petitionagainst Defendants.

16. Plaintiffs expressly reserve the right to raise such additional affirmative defensesas may be established during discovery or by the evidence in this case.

WHEREFORE, Plaintiffs, having fully answered Defendants Counter-Petition,

respectfully request that this Court dismiss with prejudice Defendants Counter-Petition, order


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Defendants to reimburse Plaintiffs for their costs and attorneys fees incurred in defending this

action, and grant Plaintiffs such other and further relief as this Court deems just and proper under

the circumstances.

Respectfully submitted,

WEISS ATTORNEYS AT LAW, P.C.

By: ___/s/ Richard D. Worth______James G. Nowogrocki, #38559Richard D. Worth, #61025

1015 Locust, Suite 400St. Louis, Missouri 63101Phone: (314) 588-9500Facsimile: (314) 588-9595Email: [email protected]

[email protected] for Plaintiffs
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

The undersigned certifies that on this 11th day of September 2013, the undersignedelectronically filed the foregoing with the Clerk of the Court using the Courts electronic filingsystem, which sent notification of such filing to:

Jennifer L. ThompsonJulie K. OstromThompson & Ostrom, P.C.1600 S. Kingshighway, Suite 1 SouthSt. Louis, Missouri 63110

Attorneys for Defendants

___/s/ Richard D. Worth____

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Reply to Counterclaim