IN THE CIRCUIT COURT OF THE CITY OF ST.

LOUIS STATE OF MISSOURI STEPHEN TRIPP, ANNA TRIPP and DAVID FARIAS, Plaintiffs/Counter-Defendants, vs. MARTA A. RAMIREZ-MALDONADO, And ARCELIAS ORIGINAL, LLC, Defendants/Counter-Plaintiffs. ) ) ) ) ) ) ) ) ) ) )

Cause No.: 1322-CC01260

Division 1

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 is

in 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 into

an 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, on

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

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 Defendants

to 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 require an answer, Anna denies the same. 9. 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, 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 9 of Defendants Counter-Petition. 10. Plaintiff Anna Tripp denies the allegations contained in Paragraph 10 of

Defendants 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. 13. 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, 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. Deny the remaining allegations contained in Paragraph 13 of Defendants Counter-Petition. 14. 15. 16. Deny. Deny. 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, 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. Deny the remaining allegations contained in Paragraph 16 of Defendants Counter-Petition. 17. 18. Deny. Plaintiff Anna Tripp denies the allegations contained in Paragraph 18 of

Defendants Counter-Petition, including all sub-parts, and requires strict proof thereof. 19. 20. 21. 22. Deny. Deny. Deny. Deny. COUNT III 23. Plaintiff Anna Tripp incorporates her Answers to Paragraphs 1 through 22 of

Defendants Counter-Petition by reference, and expressly denies any allegations not specifically addressed herein. 24. 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, 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 24 of Defendants Counter-Petition, including all sub-parts. 25. 26. Deny. Deny.

27.

Admit only that Marta agreed to compensate Anna for her services 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 27 of Defendants Counter-Petition, including all sub-parts. 28. 29. Deny. Plaintiff Anna Tripp denies the allegations contained in Paragraph 29 of

Defendants Counter-Petition, and requires strict proof thereof. 30. 31. 32. 33. Deny. Admit. Deny. Deny. COUNT IV 34. Plaintiff Anna Tripp incorporates her Answers to Paragraphs 1 through 33 of

Defendants Counter-Petition by reference, and expressly denies any allegations not specifically addressed herein. 35. 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, 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 35 of Defendants Counter-Petition. 36. Paragraph 36 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 36 does require an answer, Anna denies the same. 37. Plaintiff Anna Tripp denies the allegations contained in Paragraph 37 of

Defendants Counter-Petition, including all sub-parts, and requires strict proof thereof. 38. 39. Deny. 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 Defendants

Counter-Petition fails to state a claim upon which relief can be granted. 2. For further answer and affirmative defense, Plaintiffs state that Defendants

claims are barred by the doctrine of laches. 3. For further answer and affirmative defense, Plaintiffs state that Defendants

claims are barred by the doctrine of unclean hands. 4. For further answer and affirmative defense, Plaintiffs state that Defendants

materially 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 Anna

Tripp never agreed to and was never expected to manage any of the staff at the Arcelias Original, LLC.

6.

For further answer and affirmative defense, Plaintiffs state that Plaintiff Anna

Tripp 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 actions

Plaintiff 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 times

relevant 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 obtaining

the 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 failed

to exercise good faith and fair dealing toward Plaintiffs. 11. For further answer and affirmative defense, Plaintiffs state that Defendants did not

suffer 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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For further answer and affirmative defense, Plaintiffs state that Defendants are not

entitled 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 are

improper 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 Petition

against Defendants. 16. Plaintiffs expressly reserve the right to raise such additional affirmative defenses

as 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

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, #38559 Richard D. Worth, #61025 1015 Locust, Suite 400 St. Louis, Missouri 63101 Phone: (314) 588-9500 Facsimile: (314) 588-9595 Email: jnowogrocki@weissandassoc.com rworth@weissandassoc.com Attorneys for Plaintiffs

CERTIFICATE OF SERVICE The undersigned certifies that on this 11th day of September 2013, the undersigned electronically filed the foregoing with the Clerk of the Court using the Courts electronic filing system, which sent notification of such filing to: Jennifer L. Thompson Julie K. Ostrom Thompson & Ostrom, P.C. 1600 S. Kingshighway, Suite 1 South St. Louis, Missouri 63110 Attorneys for Defendants ___/s/ Richard D. Worth____
E:\CLIENTS\Tripp.1-2389.01\Reply to Counterclaim.DOC

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