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Filing# 145587730 E-Filed 03/11/2022 06:31:06 PM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NUMBER: CACE 20-017530 (07)
Consolidated with CACE 20-017790
SAGE
BEACH
CONDOMINIUM
ASSOCIATION, INC., a Florida not-for-profit
corporation,
Plaintiff,
V.
PMG DRIFTWOOD, LLC., a Florida limited
liability
company,
GLENEWINKEL
CONSTRUCTION COMPANY, LLC, a Florida
limited liability
company, URVANX, INC., a
Florida
corporation,
SHAMROCK
ENGINEERING CORP., a Florida corporation,
CALVIN, GIORDANO & ASSOCIATES, INC., a
Florida
corporation, CHM
STRUCTURAL
ENGINEERS, LLC, a Florida limited liability
company, ARMSTRONG AIR CCONDITION
& HEATING OF CENTRAL FLORIDA, INC., a
Florida
corporation, ASSOCIATED
STEEL
AND
ALUMINIUM,
INC.,
a
Florida
corporation, B. CODY PLUMBING, INC., a
Florida corporation,BRADFORD PRODUCTS,
LLC,
a
North
Carolina
limited
liability
company, BUILDING ENVELOPE SYSTEMS,
INC., a Florida corporation,CONSTRUCTION
SPECIALITIES,
INC.,
a
New
Jersey
corporation,
DUN-RITE
MARBLE
&
GRANITE, INC., a Florida corporation, EAST
COAST CONTRACTORS SUPPLY, INC., a
Florida
corporation,FINE LINE ELECTRIC,
INC., A Florida corporation, FLOOD PANEL,
LLC,
a
Florida
limited
liabilitycompany,
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/11/2022 06:31:05 PM.****
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 2
HOLLYWOOD
STONE,
INC.,
a
Florida
corporation,
J.L.K.
CAULKING
AND
COATINGS COMPANY, Florida corporation,
LUSHLIFE, LLC, a
Florida
limited
liability
company, NEW DOOR INSTALLATION CO.,
a
Florida
corporation, NEXT
DOOR
DISTRIBUTION
COMPANY,
an
inactive
Florida corporation, R&L PAINTING, INC., a
Florida
corporation, ROSEN
MATERIALS,
LLC, a
Florida
limited
liabilitycompany,
SECURITY INNOVATIVE SOLUTIONS, INC., a
Florida
corporation, SOUTHERN
COAST
ENTERPRISES, INC., a Florida corporation,
SOUTH DADE LIGHTING, INC., a Florida
corporation, SOUTHERN
FIRE
CONTROL,
INC.,
a
Florida
corporation, TEKTON
CONSTRUCTION,
CORP.,
a
Florida
corporation, ZARRELLA
CONSTRUCTION,
INC., a Florida corporation,
Defendants.
I
PMG DRIFTWOOD, LLC, a Florida limited
liability
company,
Counter-Plaintiff,
V.
SAGE
BEACH
CONDOMINIUM
ASSOCIATION, INC., a Florida not-for-profit
corporation,
Counter-Defendant.
I
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 3
DEFENDANT BUILDING ENVELOPE SYSTEMS, INC.'S ANSWER AND AFFIRMATIVE
DEFENSES TO PLAINTIFF'S SECOND AMENDED COMPLAINT FOR DAMAGES
Defendant, BUILDING ENVELOPE SYSTEMS, INC., ("BES"), by and through its
undersigned counsel and hereby filed its Answer and Affirmative Defenses to Plaintiff's,
SAGE BEACH CONDOMINIUM ASSOCIATION, INC. ("Plaintiff"),Second Amended
Complaint ("Complaint")and states as follows:
NATURE OF THE CASE
1.
BES admits the allegationscontained in Paragraph 1 of the Second
Amended Complaint to the extent that Plaintiff has alleged defects in the design,
development, and construction of the Project,but denies any liability
or wrong doing on
the part of BES, or Plaintiff'sentitlement to recover againstBES for any damages, costs,
interests,fees,or other amounts, remedies, or relief whatsoever.
2.
BES denies the allegationscontained in Paragraph 2 of the Second
Amended Complaint as to BES and is without knowledge as the allegationsas to the
other defendants in this action.
JURISDICTION AND VENUE
3.
BES admits the allegationscontained in Paragraph 3 of Plaintiffs Second
Amended Complaint for jurisdictionalpurposes only in that Plaintiff purports to state a
claim for damages in excess of $30,000. To the extent that the allegationscontained in
said Paragraph implies or infers any liability
or wrong doing on the part of BES, or
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 4
Plaintiffs entitlement to recover against BES for any damages, costs, interests,fees, or
other amounts, remedies, or relief whatsoever, then the allegationscontained in said
Paragraph are specifically
denied.
4.
BES admits the allegations contained in Paragraph 4 of the Second
Amended Complaint.
5.
BES admits the allegations contained in Paragraph 5 of the Second
Amended Complaint.
6.
BES admits the allegationscontained in Paragraph 6 of Plaintiff's Second
Amended Complaint for jurisdictionalpurposes only. To the extent that the allegations
contained in said Paragraph impliesor infers any liability
or wrong doing on the part of
BES, or Plaintiffs entitlement to recover against BES for any damages, costs, interests,
fees, or other amounts, remedies, or relief whatsoever, then the allegationscontained in
said Paragraph are specifically
denied.
7.
BES denies the allegationscontained in Paragraph 7 of Plaintiff's Second
Amended Complaint and demands strict proof thereof.
PARTIES
8.
BES is without knowledge as to the allegationscontained in Paragraph 8 of
the Second Amended Complaint and therefore these allegationsare denied.
9.
BES is without knowledge as to the allegationscontained in Paragraph 9 of
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 5
the Second Amended Complaint and therefore these allegationsare denied.
10.
BES is without knowledge as to the allegationscontained in Paragraph 10
of the Second Amended Complaint and therefore these allegationsare denied.
ll.
BES is without knowledge as to the allegationscontained in Paragraph 11
of the Second Amended Complaint and therefore these allegationsare denied.
12.
BES is without knowledge as to the allegationscontained in Paragraph 12
of the Second Amended Complaint and therefore these allegationsare denied.
13.
BES is without knowledge as to the allegationscontained in Paragraph 13
of the Second Amended Complaint and therefore these allegationsare denied.
14.
BES is without knowledge as to the allegationscontained in Paragraph 14
of the Second Amended Complaint and therefore these allegationsare denied.
15.
BES is without knowledge as to the allegationscontained in Paragraph 15
of the Second Amended Complaint and therefore these allegationsare denied.
16.
BES is without knowledge as to the allegationscontained in Paragraph 16
of the Second Amended Complaint and these allegationsare therefore denied.
17.
BES is without knowledge as to the allegationscontained in Paragraph 17
of the Second Amended Complaint and therefore these allegationsare denied.
18.
BES is without knowledge as to the allegationscontained in Paragraph 18
of the Second Amended Complaint and therefore these allegationsare denied.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 6
19.
BES is without knowledge as to the allegationscontained in Paragraph 19
of the Second Amended Complaint and therefore these allegationsare denied.
20.
BES is without knowledge as to the allegationscontained in Paragraph 20
of the Second Amended Complaint and therefore these allegationsare denied.
21.
BES is without knowledge as to the allegationscontained in Paragraph 21
of the Second Amended Complaint and therefore these allegationsare denied.
22.
BES is without knowledge as to the allegationscontained in Paragraph 22
of the Second Amended Complaint and therefore these allegationsare denied.
23.
BES admits the allegations contained in Paragraph 23 of the Second
Amended Complaint for jurisdictionalpurposes only. To the extent that the allegations
contained in said Paragraph imply or infer any liability
or wrong doing on the part of
BES, or Plaintiffs entitlement to recover against BES for any damages, costs, interests,
fees,or other amounts, remedies, or relief whatsoever, then the allegationscontained in
said Paragraph are specifically
denied.
24.
BES admits the allegationscontained in Paragraph 24 of the Second
Amended Complaint to the extent that it served as a subcontractor for Glenewinkel
Construction Company, LLC ("GCC") for the installation of the glazing system at the
Project,but denies the remainder of the allegationscontained in said Paragraph. Any
averments characterizingthe contents of the subcontract are denied and all questions of
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 7
law concerning the subcontract are referred to the Honorable Court for its contents,
meaning, and interpretation.
25.
BES is without knowledge as to the allegationscontained in Paragraph 25
of the Second Amended Complaint and therefore these allegationsare denied.
26.
BES is without knowledge as to the allegationscontained in Paragraph 26
of the Second Amended Complaint and therefore these allegationsare denied.
27.
BES is without knowledge as to the allegationscontained in Paragraph 27
of the Second Amended Complaint and therefore these allegationsare denied.
28.
BES is without knowledge as to the allegationscontained in Paragraph 28
of the Second Amended Complaint and therefore these allegationsare denied.
29.
BES is without knowledge as to the allegationscontained in Paragraph 29
of the Second Amended Complaint and therefore these allegationsare denied.
30.
BES is without knowledge as to the allegationscontained in Paragraph 30
of the Second Amended Complaint and therefore these allegationsare denied.
31.
BES is without knowledge as to the allegationscontained in Paragraph 31
of the Second Amended Complaint and therefore these allegationsare denied.
32.
BES is without knowledge as to the allegationscontained in Paragraph 32
of the Second Amended Complaint and therefore these allegationsare denied.
33.
BES is without knowledge as to the allegationscontained in Paragraph 33
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 8
of the Second Amended Complaint and therefore these allegationsare denied.
34.
BES is without knowledge as to the allegationscontained in Paragraph 34
of the Second Amended Complaint and therefore these allegationsare denied.
35.
BES is without knowledge as to the allegationscontained in Paragraph 35
of the Second Amended Complaint and therefore these allegationsare denied.
36.
BES is without knowledge as to the allegationscontained in Paragraph 36
of the Second Amended Complaint and therefore these allegationsare denied.
37.
BES is without knowledge as to the allegationscontained in Paragraph 37
of the Second Amended Complaint and therefore these allegationsare denied.
38.
BES is without knowledge as to the allegationscontained in Paragraph 38
of the Second Amended Complaint and therefore these allegationsare denied.
39.
BES is without knowledge as to the allegationscontained in Paragraph 39
of the Second Amended Complaint and therefore these allegationsare denied.
40.
BES is without knowledge as to the allegationscontained in Paragraph 40
of the Second Amended Complaint and therefore these allegationsare denied.
41.
BES is without knowledge as to the allegationscontained in Paragraph 41
of the Second Amended Complaint and therefore these allegationsare denied.
42.
BES is without knowledge as to the allegationscontained in Paragraph 42
of the Second Amended Complaint and therefore these allegationsare denied.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 9
43.
BES is without knowledge as to the allegationscontained in Paragraph 43
of the Second Amended Complaint and therefore these allegationsare denied.
44.
BES is without knowledge as to the allegationscontained in Paragraph 44
of the Second Amended Complaint and therefore these allegationsare denied.
45.
BES is without knowledge as to the allegationscontained in Paragraph 45
of the Second Amended Complaint and therefore these allegationsare denied.
46.
BES is without knowledge as to the allegationscontained in Paragraph 46
of the Second Amended Complaint and therefore these allegationsare denied.
47.
BES is without knowledge as to the allegationscontained in Paragraph 47
of the Second Amended Complaint and therefore these allegationsare denied.
48.
BES is without knowledge as to the allegationscontained in Paragraph 48
of the Second Amended Complaint and therefore these allegationsare denied.
49.
BES is without knowledge as to the allegationscontained in Paragraph 49
of the Second Amended Complaint and therefore these allegationsare denied.
50.
BES is without knowledge as to the allegationscontained in Paragraph 50
of the Second Amended Complaint and therefore these allegationsare denied.
51.
BES is without knowledge as to the allegationscontained in Paragraph 51
of the Second Amended Complaint and therefore these allegationsare denied.
52.
BES is without knowledge as to the allegationscontained in Paragraph 52
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 10
of the Second Amended Complaint and therefore these allegationsare denied.
53.
BES is without knowledge as to the allegationscontained in Paragraph 53
of the Second Amended Complaint and therefore these allegationsare denied.
54.
BES is without knowledge as to the allegationscontained in Paragraph 54
of the Second Amended Complaint and therefore these allegationsare denied.
55.
BES admits the allegations contained in Paragraph 55 of the Second
Amended Complaint to the extent that it served as a subcontractor for Glenewinkel
Construction Company, LLC ("GCC") for the installation of the glazing system at the
Project,but denies the remainder of the allegationscontained in said Paragraph as it did
not undertake and was not responsiblefor the design,development, and construction
of the Project. BES is further without knowledge as to the allegationsagainst the other
named defendants.
BACKGROUND FACTS AND GENERAL ALLEGATIONS
56.
BES is without knowledge as to the allegationscontained in Paragraph 56
of the Second Amended Complaint and refers all questionsof law to the Honorable
Court.
57.
BES admits the allegations contained in Paragraph 57 of the Second
Amended Complaint.
58.
BES is without knowledge as to the allegationscontained in Paragraph 58
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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of the Second Amended Complaint.
59.
BES is without knowledge as to the allegationscontained in Paragraph 59
of the Second Amended Complaint.
60.
BES admits the allegations contained in Paragraph 60 of the Second
Amended Complaint.
61.
BES is without knowledge as to the allegationscontained in Paragraph 61
of the Second Amended Complaint, and therefore denies these allegationsand refers all
questions of law to the Honorable Court.
62.
BES is without knowledge as to the allegationscontained in Paragraph 62
of the Second Amended Complaint and therefore these allegationsare denied.
63.
BES is without knowledge as to the allegationscontained in Paragraph 63
of the Second Amended Complaint and therefore these allegationsare denied.
64.
BES is without knowledge as to the allegationscontained in Paragraph 64
of the Second Amended Complaint and therefore these allegationsare denied.
65.
BES is without knowledge as to the allegationscontained in Paragraph 65
of the Second Amended Complaint and therefore these allegationsare denied.
66.
BES is without knowledge as to the allegationscontained in Paragraph 66
of the Second Amended Complaint and therefore these allegationsare denied.
67.
BES is without knowledge as to the allegationscontained in Paragraph 67
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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Page 12
of the Second Amended Complaint and therefore these allegationsare denied.
68.
BES denies the allegations contained in Paragraph 68 of the Second
Amended Complaint as to BES, demands strict proof thereof,and is without knowledge
as to the other named defendants.
69.
BES denies the allegationscontained in Paragraph 69 of the Second
Amended Complaint as to BES, demands strict proof thereof,and is without knowledge
as to the other named defendants.
70.
BES denies the allegations contained in Paragraph 70 of the Second
Amended Complaint and demands strict proofthereof.
71.
BES denies the allegationscontained in Paragraph 71 of the Second
Amended Complaint and demands strict proofthereof.
72.
BES denies the allegations contained in Paragraph 72 of the Second
Amended Complaint,includingallsubpartsand demands strict proofthereof.
73.
BES denies the allegations contained in Paragraph 73 of the Second
Amended Complaint and demands strict proofthereof.
74.
BES denies the allegations contained in Paragraph 74 of the Second
Amended Complaint and demands strict proofthereof.
75.
BES denies the allegationscontained in Paragraph 75 of the Second
Amended Complaint and demands strict proofthereof.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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Page 13
76.
BES denies the allegations contained in Paragraph 76 of the Second
Amended Complaint and demands strict proofthereof.
77.
BES denies the allegations contained in Paragraph 77 of the Second
Amended Complaint and demands strict proofthereof.
78.
BES denies the allegationscontained in Paragraph 78 of the Second
Amended Complaint and demands strict proofthereof.
79.
BES denies the allegations contained in Paragraph 79 of the Second
Amended Complaint and demands strict proofthereof.
80.
BES denies the allegations contained in Paragraph 80 of the Second
Amended Complaint and demands strict proofthereof.
COUNTS -
I
XX111, XXVIII - LXIII
81.-275, 297 - 611. Counts I to XXIII and XXVIII to LXIII are not directed to BES
and, therefore, do not requirea response from BES. To the extent, however, that any of
these allegationsimply,infer any liability
against or wrong doing on the part of BES for
damages or other relief,then the allegationscontained in said Paragraphs are
specifically
denied.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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COUNT XXIV- NEGLIGENCE
(Against BES)
276.
BES re-allegesand incorporatesby reference the responses contained in
Paragraphs 1 through 80 above as if more fullyset forth herein.
277.
BES denies the allegationscontained in Paragraph 277 of the Second
Amended Complaint as phrased and demands strict proofthereof.
278.
BES denies the allegationscontained in Paragraph 278 of the Second
Amended Complaint as phrased,demands strict proof thereof, and refers all questions
of law to the Honorable Court.
279.
BES denies the allegationscontained in Paragraph 279 of the Second
Amended Complaint as phrased,demands strict proof thereof,and refers all questions
of law to the Honorable Court.
280.
BES denies the allegationscontained in Paragraph 280 of the Second
Amended Complaint as phrased, demands strict proof thereof, and refers all questions
of law to the Honorable Court.
281.
BES denies the allegationscontained in Paragraph 281 of the Second
Amended Complaint as phrased, demands strict proof thereof, and refers all questions
of law to the Honorable Court.
282.
BES denies the allegationscontained in Paragraph 282 of the Second
Amended Complaint and demands strict proof thereof.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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Page 15
283.
BES denies the allegationscontained in Paragraph 283 of the Second
Amended Complaint and demands strict proof thereof.
284.
BES denies the allegationscontained in Paragraph 284 of the Second
Amended Complaint, includingall subparts,and demands strict proof thereof.
285.
BES denies the allegationscontained in Paragraph 285 of the Second
Amended Complaint, demands strict proofthereof,and refers all questions of law to the
Honorable Court.
286.
BES denies the allegationscontained in Paragraph 286 of the Second
Amended Complaint and demands strict proof thereof.
COUNT XXV - VIOLATION OF BUILDING CODE
(Against BES)
287.
BES re-allegesand incorporates by reference the responses contained in
Paragraphs 1 through 80 above as if more fullyset forth herein.
288.
Paragraph 288 of the Second Amended Complaint does not set forth any
allegations as against BES, but merely purports to cite to Section 553.84, Florida
Statutes.
As such, no response is required. To the extent said Paragraph impliesor
infers any code violations, liability
or wrong doing on the part of BES for damages or
other relief,then the allegationscontained in said Paragraphs are specifically
denied.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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Page 16
289.
BES denies the allegationscontained in Paragraph 289 of the Second
Amended Complaint, demands strict proof thereof, and refers all questions of law to the
Honorable Court.
290.
BES denies the allegationscontained in Paragraph 290 of the Second
Amended Complaint as phrased,demands strict proof thereof, and refers all questions
of law to the Honorable Court.
291.
BES denies the allegationscontained in Paragraph 291 of the Second
Amended Complaint, demands strict proof thereof,and refers all questions of law to the
Honorable Court.
292.
BES admits the allegationscontained in Paragraph 292 of the Second
Amended Complaint.
293.
BES denies the allegationscontained in Paragraph 293 of the Second
Amended Complaint,demands strict proofthereof,and refers allquestionsof law to the
Honorable Court.
294.
BES denies the allegationscontained in Paragraph 294 of the Second
Amended Complaint, includingall subparts,and demands strict proof thereof.
295.
BES denies the allegationscontained in Paragraph 295 of the Second
Amended Complaint,demands strict proofthereof,and refers all questionsof law to the
Honorable Court.
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Case No. CACE-20-0175320 (21)
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296.
BES denies the allegationscontained in Paragraph 296 of the Second
Amended Complaint, demands strict proof thereof, and refers all questions of law to the
Honorable Court.
GENERAL DENIAL OF ALLEGATIONS
BES denies each and every allegationasserted by Plaintiff which is not specifically
admitted herein and demands strict proof thereof.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
Plaintiff has failed to set forth a cause of action against BES for which relief can
be granted. Plaintiff's recovery against BES is barred by its failure to set forth ultimate
facts,which satisfythe required elements necessary for its count for negligence. The
Second Amended Complaint is devoid of any details, specifics,
or ultimate facts
regarding (a) the nature of the allegedlydefective work by BES related to the glazing
system; (b) the specificconduct of BES that was the proximate cause of the alleged
damages; (c) the specificsections of the Florida Building Code, permits and plans,and
industrystandards to which BES failed to adhere while performing its scope of work on
the Projectand/or violated; and (d) the specificsections of the State Minimum Building
Codes Act and the local,state, and national buildingcodes and regulationsto which BES
allegedlyfailed to adhere and/or violated.
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Case No. CACE-20-0175320 (21)
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Page 18
SECOND AFFIRMATIVE DEFENSE
BES affirmatively
states that, at all times material hereto, it complied with the
terms and conditions of its subcontract with GCC, all applicable building codes, rules
and regulations,which was inspected and approved by GCC, PMG, URVANX, and the
local BuildingOfficial,and that Plaintiff is barred from recovering for any damages
resultingfrom any actions or omissions beyond the scope of BES's obligations or for
which BES owed no legalduty.
THIRD AFFIRMATIVE DEFENSE
BES affirmatively
states that its obligationsfor the work performed pursuant to its
subcontract with GCC are strictly
limited by any disclaimer, limitation of liability,
and
express warranty clauses found within the terms and conditions of its contract with GCC.
FOURTH AFFIRMATIVE DEFENSE
To the extent there were any alleged errors or omissions in the construction
related to BES's scope of work, the condition was patent, inspected, approved, and
accepted (expresslyor impliedly)by GCC, the project'sarchitect, owner/developer,
and/or the agents, employees, representatives,assignees, subrogors, privies,and or
predecessor/successor in interest thereof.
Pursuant to the Slavin doctrine and its
progeny, and the related principlesof release, estoppel,waiver and merger, Plaintiff is
barred from recovering against BES. See Slavin v. Kay, 108 So.2d 462 (Fla.1959).
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Case No. CACE-20-0175320 (21)
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FIFTH AFFIRMATIVE DEFENSE
BES affirmatively
avers that it faithfully
followed and complied with the express
and applicable provisions of the contract documents, plans and specifications.
Therefore, Plaintiff's claims are barred by the Spearin Doctrine espoused under United
States v. Spearin,248 U.S. 132(1918) and its progeny.
SIXTH AFFIRMATIVE DEFENSE
Plaintiffs alleged damages are barred or must be reduced or limited pursuant to
the Economic Waste Doctrine to the extent remediation results in improvements,
betterments, enhancements, or economic waste, and must be otherwise, measured,
limited,and restricted pursuant to the requirements set forth in Grossman Holdings,ltd.
v.
Hourihan, 414 Sold 1037 (Fla. 1982). Discovery is ongoing and this affirmative
defense will be supplemented upon receiptof further information.
SEVENTH AFFIRMATIVE DEFENSE
In the event that any liability
is imposed upon BES for Plaintiffs alleged damages,
such liability,
if any, was caused in whole or in part, by the acts or omissions of other
responsible persons and/or entities,over whom BES had no control, supervisory duties,
or dominion, and should be apportioned pursuant to Florida Statutes §768.81, and the
principlesof law set forth in Fabre v. Marin, 623 Sold 1182 (Fla. 1993), with the
following:
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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Plaintiff,
Sage Beach Condominium Association;
,
Plaintiffs property management, staff,and employees responsible for
maintenance of the electrical and fire alarm systems;
PMG Driftwood, LLC- the Project'sdeveloper;
Glenewinkel
Construction
Company,
LLC-
the
Project's general
contractor;
Urvanx, LLC- the Project'sarchitect;
o
Shamrock Engineering, Corp- the Project'smechanical, electrical,and
plumbing engineer of record;
,
Calvin, Giordano & Associates, Inc.- the Project'scivil engineer of
record;
o
CHM Structural Engineers, LLC- The Project'sstructural engineer of
record;
Armstrong Air Condition & Heating of Central Florida, Inc.- the
Project'sHVAC subcontractor;
Associated
Steel
and Aluminum, Inc.- the Project's metals and
aluminum construction and installation subcontractor;
B. Cody Plumbing, Inc.- the Project'splumbing subcontractor;
Bradford Products, LLC- the Project'sresidential pools subcontractor;
.
Construction
Specialties,Inc.-
the
Project's aluminum
Iouvers
subcontractor;
.
Dun-Rite Marble & Granite, Inc.- the Project'sexterior stone cladding,
unit tiles,balconies, corridor and counter top subcontractor;
I
East
Coast
Contractors
Supply, Inc.-
the
Project's flood
vents
subcontractor;
o
Ferguson
Enterprises, Inc.-
the
Project's plumbing
fixtu res
subcontractor;
o
Fine
Line
Electric, Inc.-
the
Project's fire
protection system
subcontractor;
Flood Panel, LLC- the Project'sflood panelssubcontractor;
.
Hollywood Strone, Inc.- the Project'spavers subcontractor;
JLK Caulking and Coating Company- the Project's caulking and
waterproofingsubcontractor;
.
Lushlife,LLC- the Project'splantingand irrigation
subcontractor;
New Door Installation Co. - the Project's door installation
subcontractor;
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
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Page 21
o
Next Door Distribution Company - the Project'sdoor installation
subcontractor;
e
R&L Painting,Inc.- the Project'spaintingsubcontractor;
I
Rosen Materials, LLC- the Project'sstucco subcontractor;
.
Security Innovative
Solutions, Inc.-
the
Project's overhead
gates
subcontractor;
.
Southern
Coast
Enterprises, Inc.-
the
Project's roofing and
waterproofingsubcontractor;
.
South Dade Lighting,Inc.- the Project'slightfixture subcontractor;
.
Southern Fire Control, Inc.- the Project'sfire protection system
subcontractor;
.
Tekton Construction, Corp.- the Project'sconcrete shell subcontractor;
and
.
Zarrella Construction, Inc.- the Project'sdrywall,metal framing and
insulation subcontractor;
,
Pursuant to Nash v. Wells Fargo, 678 So.2d 1262 (Fla. 1996), BES
reserves
the right to amend this affirmative defenses to name
additional unknown non-parties as soon as practicalupon identifying
same up to the time of trial.
EIGHTH AFFIRMATIVE DEFENSE
BES affirmatively
avers that the subject property has been under the Plaintiff's
control for several years.
The damages claimed by the Plaintiff are the result of
independent intervening causes, acts and/or omission of others, environmental
factors/weather related events, acts of God, including the harsh coastal salt water
environment, which can accelerate corrosion of metal components of the glazing system
and the deterioration of sealants, gaskets,and other glazing components if not properly
maintained and is outside of BES's control. Therefore, Plaintiff cannot recover against
BES.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 22
NINTH AFFIRMATIVE DEFENSE
BES affirmatively
states that Plaintiffs claims are time barred pursuant to the
applicable statute of limitations set forth in §95.11, Fla. Stat.
Many (ifnot all)of the
alleged defects claimed against the BES were patent.
Therefore, Plaintiffs claims
against the BES should have been filed within four years from actual possession,
issuance of a certificate of occupancy or date of substantial completion of BES's
contract.
The Certificates of Occupancy were first issued in 2016. Actual possession
and completion of BES's contact occurred more than 4 years priorto Plaintiff filingthis
action against the BES. Plaintiff did not file its claims against BES until August 31, 2021
(when it filed its Motion for Leave to File First Amended Complaint)/. Therefore,
pursuant to §95.11(3)(c),Fla. Stat, Plaintiffs claims against BES are barred by the
statute of limitations.
TENTH AFFIRMATIVE DEFENSE
Plaintiff claims are barred or should be abated based upon Plaintiffs failure to
comply with all conditions precedent. Specifically,
Plaintifffailed to comply with Florida
Statute, Section 558, et. seq., by serving a pre-suitnotice. Such failure operates as a bar
or reduction in damages that may otherwise be awarded to Plaintiff for its failure to
mitigate its damages.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 23
ELEVENTH AFFIRMATIVE DEFENSE
To the extent that BES is liable to Plaintiff for any damages, BES is entitled to a
credit, set-off or reduction of all sums of money payable or paid by settlement,
judgment, collateral source benefits under Section 768.76 and Chapter 627 Fla. Stat.,or
otherwise, entered into and/or received by Plaintiff from any other person or entityfor
the damages alleged by Plaintiff in this action. See also Sections 46.015 and 768.041,
Florida Statutes.
TWELFTH AFFIRMATIVE DEFENSE
BES affirmatively
states asserts that the alleged defects and deficiencies were
caused in whole or in part by Plaintiff's failure to mitigate,lack of preventative
maintenance, and/or failure to maintain or properly repair the glazing system,
including windows, sliding glass doors, and
glass doors and their hardware
components, and its recovery, if any should be barred, reduced or limited accordingly.
The glazingsystem installed at the Projectrequireregularmaintenance and failure to
properly maintain the glazing system will result in the conditions described in Plaintiff's
experts' reports, includingpremature corrosion to metal materials and components
and the deterioration of sealants, gaskets,and other components exposed to the harsh
coastal salt water environment.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 24
THIRTEENTH AFFIRMATIVE DEFENSE
BES affirmatively
avers that in the event it is determined there were defects within
its scope of work, BES is entitled to a set off or reduction for the partialor complete
expirationof the intended and expected useful life of allegedlydefective components
because Plaintiff enjoyed and retained the benefit of said buildingcomponents from the
completion of the subject Project,Plaintiff is entitled to recover no more than the
amount needed to restore the property to the condition it was in priorto the injury.The
measure of the damages should, therefore, include a reduction for the extended period
of use, or increased lifeexpectancy of the materials installed by BES alleged as defects in
this action. In addition, if the Plaintiff elects,or has elected to adopt a more expensive
design and/or product to replace or repair the alleged defects or deficiencies,the
recovery should be limited to what would have been the reasonable cost of repair
according to the originaldesign and/or the reasonable cost of replacingthe materials
installed by BES or similar product, prorated to account for the increased lifeexpectancy
of the materials. See, Grossman v. Sea Air Towers, Ltd.,513 So. 2d 686 (Fla.3d DCA 1987);
Mall v. Pawelski, 626 So. 2d 291 (Fla.4th DCA 1993).
FOURTEENTH AFFIRMATIVE DEFENSE
To the extent that BES's work on the subject property, if any, was subsequently
modified, damaged or disturbed, BES is not liable for any resultingloss or damages.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 25
FIFTEENTH AFFIRMATIVE DEFENSE
BES affirmatively
asserts that to the extent it is determined there were issues with
its scope of work, BES's work was performed in accordance with the designers' plans
and specifications,
complied with all applicablecodes and statutes, passed all applicable
inspectionsby the regulatoryauthorities with jurisdictionover the project,and as such,
these regulatory authorities' conclusions are to be treated with deference. Therefore,
Plaintiffs claims against BES are barred under the Seibert Doctrine. Edward J. Seibert
A.1.A. Architect and Planner, PA v. The Bayport Beach and Tennis Club Ass'n, Inc.,573 So.
2d 889 (Fla.2d DCA 1990).
RESERVATION OF RIGHT TO AMEND
Defendant, FINE LINE ELECTRIC, INC., hereby reserves its right to amend its
Affirmative Defenses as the same may become necessary though the course of pre-trial
discovery.
WHEREFORE,
Defendant,
BUILDING
ENVELOPE
SYSTEMS,
INC.,
demands
judgment against Plaintiff,SAGE
BEACH CONDOMINIUM ASSOCIATION, INC.,
dismissing its Second Amended Complaint with prejudice,and for such other relief that
this Honorable Court deems just and proper.
DEMAND FOR JURY TRIAL
BES hereby demands a jury trial on all issues so triable herein as a matter of right.
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 26
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished via the Florida e-Portal Electronic Notification System, and/or electronic mail,
to all counsel of record on the Service List,this 11 th day of March, 2022.
LUKS, SANTANIELLO, PETRILLO, COHEN
& PETERFRIEND
Attorneys for Defendants
FINE LINE ELECTRIC, INC., NEW DOOR
INSTALLATION CO., and BUILDING ENVELOPE
SYSTEMS, INC.
110 Southeast 6thStreet,20th Floor
Fort Lauderdale, FL 33301
Telephone: (954) 761-9900
Facsimile: (954) 761-9940
BViSiDauidZ.RM.ZK
David L. Rosinsky,Esq.
Florida Bar No.: 077061
drosinsky@insurancedefense.net
spare@insurancedefense.net
LuksFLL-Pleadings@LS-Law.com
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 27
SERVICE LIST
PhillipE. Joseph, Esq.
David L. Rosinsky, Esq.
Evan Small, Esq.
Daniel J. Santaniello, Esq.
Gabriel Z. Coelho, Esq.
Luks, Santaniello, Petrillo,Cohen
ElijahC. Waring, Jr., Esq.
Ball Janik, LLP
& Peterfriend
100 Southeast 2d
.th
Street, Suite 3310
110 Southeast 6th Street, 20, Floor
Miami, FL 33131
Fort Lauderdale, FL 33301
Tel: 786-770-8665
Tel: (954) 761-9900
Direct: 786-770-8650
Fax: 407-902-2105
Fax: (954) 761-9940
pjoseph@balljanik.com
drosinsky@insurancedefense.net
spare@insurancedefense.net
gcoelho@ba janik.com
LUKSFLL-PIeadings@LS-Law.com
ewaring@ba janik.com
ngracey@ba janik.com
Icollado@ba janik.com
cbetancourt@balljanik.com
cmarriott@balljanik.com
Counsel for Fine Line Electric, Inc., New
Door Installation Co., and Building
Counsel for Plaintiff
Envelope Systems, Inc.
Ga,y Baumann, Esq.
Jeremy C. Daniel, Esq.
Elizabeth M. White, Esq.
Christal R. Tomac, Esq.
Baumann, Gant & Keeley,PA
1401 East Broward Boulevard, Suite 200
Daniels, Rodriguez,Berkeley,Daniels & Cruz,
Fort Lauderdale, Florida 33301
P.A.
Tel: (954) 440-4611
4000 Ponce de Leon Boulevard, Suite 800
Fax: (954) 440-4613
Coral Gables, FL 33146
gbaumann@baumannlegal.com
Tel: (305) 488-7988
ewhite@baumannlegal.com
Fax:
dcaleca@baumannlegal.com
(305) 488-7978
ngloria@baumannlegal.com
jdaniels@drbc-law.com
ctomac@drbc-law.com
dortiz@drbc-law.com
service-jcd@drbc-law.com
service-crt@drbc-law.com
Counsel for PMG Driftwood, LLC and
Glenewinkel Construction Company, LLC
Counsel for Urvanx, Inc.
Josh M. Rubens, Esq.
Sanaz Alempour, Esq.
Kluger,Kaplan,Silverman, Katzen & Levine,
Cole, Scott & Kissane, PA
P.L.
600 North Pine Island Road, Suite 500
201 South Biscayne Boulevard, 27th Floor
Miami, Florida 33131
Plantation, Florida 33324
Tel: (305) 379-9000
Tel: (954) 343-3902
jrubens@klugerkaplan.com
Fax: (954) 474-7979
Sanaz.alempour@csklegal.com
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 28
Ian.calder@csklegal.com
Toni.ortiz@csklegal.com
Counsel for PMG Driftwood, LLC
Counsel for Calvin, Giordano & Associates,
Inc.
Scott L. Buscemi, Esq.
Manuel A. Rodriguez, Esq.
Property Markets Group
Leslie V. Marenco, Esq.
1441 Brickell Avenue, Suite 1510
Trust Counsel
Miami, Florida 33131
Tel: (305) 384-6745
357 Almeria Avenue, Suite 103
sbuscemi@propertymg.com
Coral Gables, Florida 33134
Tel: (305) 707-7126
mannyar@gmail.com
rodriguez@trustcounsel.com
marenco@trustcounsel.com
dulce@trustcounsel.com
Counsel for Shamrock Engineering Corp.
General Counsel for PMG Driftwood, LLC
Ryan M. Charison, Esq.
Robert H. de BESsco, Ill,Esq.
George R. Truitt, Esq.
Jana M. Fried, Esq.
Anthony Lopez, Esq.
Cole, Scott & Kissane, PA
Cole, Scott & Kissane, PA
9150 Dadeland Boulevard Suite 1400
600 North Pine Island Road, Suite 600
Miami, Florida 33156
Plantation, Florida 33324
Tel: (305) 350-5300
Tel: (954) 473-1112
Fax: (305) 373-2294
Fax: (954) 474-7979
Ryan.Charlson@csklegal.com
Robert.DeBESsco@csklegal.com
George.Truitt@csklegal.com
Anthony.Lopez@csklegal.com
Jana.Fried@csklegal.com
Nicole.Kaufman@csklegal.com
Joeicy.Fanjul@csklegal.com
Susana.Rodriguez@csklegal.com
Debbie.Arencibia@csklegal.com
Judith.Gracia@csklegal.com
Construction.Miami@csklegal.com
Lisa.Heftel@csklegal.com
Construction.FTLW@csklegal.com
Counsel for CHM Structural Engineers, LLC
Counsel for Bradford Products, LLC
Alexander E. Barthet, Esq.
Scott D. Rembold, Esq.
Larry L. Cook, Esq.
Jay P. Dinan, Esq.
The Barthet Firm
Rembold Hirschman, LLC
200 South BiscayneBoulevard, Suite 1650
Miami, FL 33131
2121 Ponce de Leon Boulevard, Suite 500
Tel: (305) 347-5290
Coral Gables, FL 33134
alex@barthet.com
Tel: (305) 442-9111
Icook@barthet.com
Fax: (305) 442-9001
Cynthia Hosein
chosein@barthet.com
srembold@therhlawfirm.com
service@barthet.com
jdinan@therhlawfirm.com
Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al
Case No. CACE-20-0175320 (21)
Consolidated with Case No. CACE-20-017790
Page 29
imalcolm@therhlawfirm.com
courtdocs@therhlawfirm.com
Counsel for Southern Fire Control Inc. and
Counsel for Lushlife,LLC
Fergusons Enterprises,Inc.
Preview
Filing# 145587730 E-Filed 03/11/2022 06:31:06 PM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NUMBER: CACE 20-017530 (07) Consolidated with CACE 20-017790 SAGE BEACH CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Plaintiff, V. PMG DRIFTWOOD, LLC., a Florida limited liability company, GLENEWINKEL CONSTRUCTION COMPANY, LLC, a Florida limited liability company, URVANX, INC., a Florida corporation, SHAMROCK ENGINEERING CORP., a Florida corporation, CALVIN, GIORDANO & ASSOCIATES, INC., a Florida corporation, CHM STRUCTURAL ENGINEERS, LLC, a Florida limited liability company, ARMSTRONG AIR CCONDITION & HEATING OF CENTRAL FLORIDA, INC., a Florida corporation, ASSOCIATED STEEL AND ALUMINIUM, INC., a Florida corporation, B. CODY PLUMBING, INC., a Florida corporation,BRADFORD PRODUCTS, LLC, a North Carolina limited liability company, BUILDING ENVELOPE SYSTEMS, INC., a Florida corporation,CONSTRUCTION SPECIALITIES, INC., a New Jersey corporation, DUN-RITE MARBLE & GRANITE, INC., a Florida corporation, EAST COAST CONTRACTORS SUPPLY, INC., a Florida corporation,FINE LINE ELECTRIC, INC., A Florida corporation, FLOOD PANEL, LLC, a Florida limited liabilitycompany, *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 03/11/2022 06:31:05 PM.**** Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 2 HOLLYWOOD STONE, INC., a Florida corporation, J.L.K. CAULKING AND COATINGS COMPANY, Florida corporation, LUSHLIFE, LLC, a Florida limited liability company, NEW DOOR INSTALLATION CO., a Florida corporation, NEXT DOOR DISTRIBUTION COMPANY, an inactive Florida corporation, R&L PAINTING, INC., a Florida corporation, ROSEN MATERIALS, LLC, a Florida limited liabilitycompany, SECURITY INNOVATIVE SOLUTIONS, INC., a Florida corporation, SOUTHERN COAST ENTERPRISES, INC., a Florida corporation, SOUTH DADE LIGHTING, INC., a Florida corporation, SOUTHERN FIRE CONTROL, INC., a Florida corporation, TEKTON CONSTRUCTION, CORP., a Florida corporation, ZARRELLA CONSTRUCTION, INC., a Florida corporation, Defendants. I PMG DRIFTWOOD, LLC, a Florida limited liability company, Counter-Plaintiff, V. SAGE BEACH CONDOMINIUM ASSOCIATION, INC., a Florida not-for-profit corporation, Counter-Defendant. I Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 3 DEFENDANT BUILDING ENVELOPE SYSTEMS, INC.'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S SECOND AMENDED COMPLAINT FOR DAMAGES Defendant, BUILDING ENVELOPE SYSTEMS, INC., ("BES"), by and through its undersigned counsel and hereby filed its Answer and Affirmative Defenses to Plaintiff's, SAGE BEACH CONDOMINIUM ASSOCIATION, INC. ("Plaintiff"),Second Amended Complaint ("Complaint")and states as follows: NATURE OF THE CASE 1. BES admits the allegationscontained in Paragraph 1 of the Second Amended Complaint to the extent that Plaintiff has alleged defects in the design, development, and construction of the Project,but denies any liability or wrong doing on the part of BES, or Plaintiff'sentitlement to recover againstBES for any damages, costs, interests,fees,or other amounts, remedies, or relief whatsoever. 2. BES denies the allegationscontained in Paragraph 2 of the Second Amended Complaint as to BES and is without knowledge as the allegationsas to the other defendants in this action. JURISDICTION AND VENUE 3. BES admits the allegationscontained in Paragraph 3 of Plaintiffs Second Amended Complaint for jurisdictionalpurposes only in that Plaintiff purports to state a claim for damages in excess of $30,000. To the extent that the allegationscontained in said Paragraph implies or infers any liability or wrong doing on the part of BES, or Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 4 Plaintiffs entitlement to recover against BES for any damages, costs, interests,fees, or other amounts, remedies, or relief whatsoever, then the allegationscontained in said Paragraph are specifically denied. 4. BES admits the allegations contained in Paragraph 4 of the Second Amended Complaint. 5. BES admits the allegations contained in Paragraph 5 of the Second Amended Complaint. 6. BES admits the allegationscontained in Paragraph 6 of Plaintiff's Second Amended Complaint for jurisdictionalpurposes only. To the extent that the allegations contained in said Paragraph impliesor infers any liability or wrong doing on the part of BES, or Plaintiffs entitlement to recover against BES for any damages, costs, interests, fees, or other amounts, remedies, or relief whatsoever, then the allegationscontained in said Paragraph are specifically denied. 7. BES denies the allegationscontained in Paragraph 7 of Plaintiff's Second Amended Complaint and demands strict proof thereof. PARTIES 8. BES is without knowledge as to the allegationscontained in Paragraph 8 of the Second Amended Complaint and therefore these allegationsare denied. 9. BES is without knowledge as to the allegationscontained in Paragraph 9 of Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 5 the Second Amended Complaint and therefore these allegationsare denied. 10. BES is without knowledge as to the allegationscontained in Paragraph 10 of the Second Amended Complaint and therefore these allegationsare denied. ll. BES is without knowledge as to the allegationscontained in Paragraph 11 of the Second Amended Complaint and therefore these allegationsare denied. 12. BES is without knowledge as to the allegationscontained in Paragraph 12 of the Second Amended Complaint and therefore these allegationsare denied. 13. BES is without knowledge as to the allegationscontained in Paragraph 13 of the Second Amended Complaint and therefore these allegationsare denied. 14. BES is without knowledge as to the allegationscontained in Paragraph 14 of the Second Amended Complaint and therefore these allegationsare denied. 15. BES is without knowledge as to the allegationscontained in Paragraph 15 of the Second Amended Complaint and therefore these allegationsare denied. 16. BES is without knowledge as to the allegationscontained in Paragraph 16 of the Second Amended Complaint and these allegationsare therefore denied. 17. BES is without knowledge as to the allegationscontained in Paragraph 17 of the Second Amended Complaint and therefore these allegationsare denied. 18. BES is without knowledge as to the allegationscontained in Paragraph 18 of the Second Amended Complaint and therefore these allegationsare denied. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 6 19. BES is without knowledge as to the allegationscontained in Paragraph 19 of the Second Amended Complaint and therefore these allegationsare denied. 20. BES is without knowledge as to the allegationscontained in Paragraph 20 of the Second Amended Complaint and therefore these allegationsare denied. 21. BES is without knowledge as to the allegationscontained in Paragraph 21 of the Second Amended Complaint and therefore these allegationsare denied. 22. BES is without knowledge as to the allegationscontained in Paragraph 22 of the Second Amended Complaint and therefore these allegationsare denied. 23. BES admits the allegations contained in Paragraph 23 of the Second Amended Complaint for jurisdictionalpurposes only. To the extent that the allegations contained in said Paragraph imply or infer any liability or wrong doing on the part of BES, or Plaintiffs entitlement to recover against BES for any damages, costs, interests, fees,or other amounts, remedies, or relief whatsoever, then the allegationscontained in said Paragraph are specifically denied. 24. BES admits the allegationscontained in Paragraph 24 of the Second Amended Complaint to the extent that it served as a subcontractor for Glenewinkel Construction Company, LLC ("GCC") for the installation of the glazing system at the Project,but denies the remainder of the allegationscontained in said Paragraph. Any averments characterizingthe contents of the subcontract are denied and all questions of Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 7 law concerning the subcontract are referred to the Honorable Court for its contents, meaning, and interpretation. 25. BES is without knowledge as to the allegationscontained in Paragraph 25 of the Second Amended Complaint and therefore these allegationsare denied. 26. BES is without knowledge as to the allegationscontained in Paragraph 26 of the Second Amended Complaint and therefore these allegationsare denied. 27. BES is without knowledge as to the allegationscontained in Paragraph 27 of the Second Amended Complaint and therefore these allegationsare denied. 28. BES is without knowledge as to the allegationscontained in Paragraph 28 of the Second Amended Complaint and therefore these allegationsare denied. 29. BES is without knowledge as to the allegationscontained in Paragraph 29 of the Second Amended Complaint and therefore these allegationsare denied. 30. BES is without knowledge as to the allegationscontained in Paragraph 30 of the Second Amended Complaint and therefore these allegationsare denied. 31. BES is without knowledge as to the allegationscontained in Paragraph 31 of the Second Amended Complaint and therefore these allegationsare denied. 32. BES is without knowledge as to the allegationscontained in Paragraph 32 of the Second Amended Complaint and therefore these allegationsare denied. 33. BES is without knowledge as to the allegationscontained in Paragraph 33 Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 8 of the Second Amended Complaint and therefore these allegationsare denied. 34. BES is without knowledge as to the allegationscontained in Paragraph 34 of the Second Amended Complaint and therefore these allegationsare denied. 35. BES is without knowledge as to the allegationscontained in Paragraph 35 of the Second Amended Complaint and therefore these allegationsare denied. 36. BES is without knowledge as to the allegationscontained in Paragraph 36 of the Second Amended Complaint and therefore these allegationsare denied. 37. BES is without knowledge as to the allegationscontained in Paragraph 37 of the Second Amended Complaint and therefore these allegationsare denied. 38. BES is without knowledge as to the allegationscontained in Paragraph 38 of the Second Amended Complaint and therefore these allegationsare denied. 39. BES is without knowledge as to the allegationscontained in Paragraph 39 of the Second Amended Complaint and therefore these allegationsare denied. 40. BES is without knowledge as to the allegationscontained in Paragraph 40 of the Second Amended Complaint and therefore these allegationsare denied. 41. BES is without knowledge as to the allegationscontained in Paragraph 41 of the Second Amended Complaint and therefore these allegationsare denied. 42. BES is without knowledge as to the allegationscontained in Paragraph 42 of the Second Amended Complaint and therefore these allegationsare denied. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 9 43. BES is without knowledge as to the allegationscontained in Paragraph 43 of the Second Amended Complaint and therefore these allegationsare denied. 44. BES is without knowledge as to the allegationscontained in Paragraph 44 of the Second Amended Complaint and therefore these allegationsare denied. 45. BES is without knowledge as to the allegationscontained in Paragraph 45 of the Second Amended Complaint and therefore these allegationsare denied. 46. BES is without knowledge as to the allegationscontained in Paragraph 46 of the Second Amended Complaint and therefore these allegationsare denied. 47. BES is without knowledge as to the allegationscontained in Paragraph 47 of the Second Amended Complaint and therefore these allegationsare denied. 48. BES is without knowledge as to the allegationscontained in Paragraph 48 of the Second Amended Complaint and therefore these allegationsare denied. 49. BES is without knowledge as to the allegationscontained in Paragraph 49 of the Second Amended Complaint and therefore these allegationsare denied. 50. BES is without knowledge as to the allegationscontained in Paragraph 50 of the Second Amended Complaint and therefore these allegationsare denied. 51. BES is without knowledge as to the allegationscontained in Paragraph 51 of the Second Amended Complaint and therefore these allegationsare denied. 52. BES is without knowledge as to the allegationscontained in Paragraph 52 Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 10 of the Second Amended Complaint and therefore these allegationsare denied. 53. BES is without knowledge as to the allegationscontained in Paragraph 53 of the Second Amended Complaint and therefore these allegationsare denied. 54. BES is without knowledge as to the allegationscontained in Paragraph 54 of the Second Amended Complaint and therefore these allegationsare denied. 55. BES admits the allegations contained in Paragraph 55 of the Second Amended Complaint to the extent that it served as a subcontractor for Glenewinkel Construction Company, LLC ("GCC") for the installation of the glazing system at the Project,but denies the remainder of the allegationscontained in said Paragraph as it did not undertake and was not responsiblefor the design,development, and construction of the Project. BES is further without knowledge as to the allegationsagainst the other named defendants. BACKGROUND FACTS AND GENERAL ALLEGATIONS 56. BES is without knowledge as to the allegationscontained in Paragraph 56 of the Second Amended Complaint and refers all questionsof law to the Honorable Court. 57. BES admits the allegations contained in Paragraph 57 of the Second Amended Complaint. 58. BES is without knowledge as to the allegationscontained in Paragraph 58 Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 11 of the Second Amended Complaint. 59. BES is without knowledge as to the allegationscontained in Paragraph 59 of the Second Amended Complaint. 60. BES admits the allegations contained in Paragraph 60 of the Second Amended Complaint. 61. BES is without knowledge as to the allegationscontained in Paragraph 61 of the Second Amended Complaint, and therefore denies these allegationsand refers all questions of law to the Honorable Court. 62. BES is without knowledge as to the allegationscontained in Paragraph 62 of the Second Amended Complaint and therefore these allegationsare denied. 63. BES is without knowledge as to the allegationscontained in Paragraph 63 of the Second Amended Complaint and therefore these allegationsare denied. 64. BES is without knowledge as to the allegationscontained in Paragraph 64 of the Second Amended Complaint and therefore these allegationsare denied. 65. BES is without knowledge as to the allegationscontained in Paragraph 65 of the Second Amended Complaint and therefore these allegationsare denied. 66. BES is without knowledge as to the allegationscontained in Paragraph 66 of the Second Amended Complaint and therefore these allegationsare denied. 67. BES is without knowledge as to the allegationscontained in Paragraph 67 Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 12 of the Second Amended Complaint and therefore these allegationsare denied. 68. BES denies the allegations contained in Paragraph 68 of the Second Amended Complaint as to BES, demands strict proof thereof,and is without knowledge as to the other named defendants. 69. BES denies the allegationscontained in Paragraph 69 of the Second Amended Complaint as to BES, demands strict proof thereof,and is without knowledge as to the other named defendants. 70. BES denies the allegations contained in Paragraph 70 of the Second Amended Complaint and demands strict proofthereof. 71. BES denies the allegationscontained in Paragraph 71 of the Second Amended Complaint and demands strict proofthereof. 72. BES denies the allegations contained in Paragraph 72 of the Second Amended Complaint,includingallsubpartsand demands strict proofthereof. 73. BES denies the allegations contained in Paragraph 73 of the Second Amended Complaint and demands strict proofthereof. 74. BES denies the allegations contained in Paragraph 74 of the Second Amended Complaint and demands strict proofthereof. 75. BES denies the allegationscontained in Paragraph 75 of the Second Amended Complaint and demands strict proofthereof. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 13 76. BES denies the allegations contained in Paragraph 76 of the Second Amended Complaint and demands strict proofthereof. 77. BES denies the allegations contained in Paragraph 77 of the Second Amended Complaint and demands strict proofthereof. 78. BES denies the allegationscontained in Paragraph 78 of the Second Amended Complaint and demands strict proofthereof. 79. BES denies the allegations contained in Paragraph 79 of the Second Amended Complaint and demands strict proofthereof. 80. BES denies the allegations contained in Paragraph 80 of the Second Amended Complaint and demands strict proofthereof. COUNTS - I XX111, XXVIII - LXIII 81.-275, 297 - 611. Counts I to XXIII and XXVIII to LXIII are not directed to BES and, therefore, do not requirea response from BES. To the extent, however, that any of these allegationsimply,infer any liability against or wrong doing on the part of BES for damages or other relief,then the allegationscontained in said Paragraphs are specifically denied. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 14 COUNT XXIV- NEGLIGENCE (Against BES) 276. BES re-allegesand incorporatesby reference the responses contained in Paragraphs 1 through 80 above as if more fullyset forth herein. 277. BES denies the allegationscontained in Paragraph 277 of the Second Amended Complaint as phrased and demands strict proofthereof. 278. BES denies the allegationscontained in Paragraph 278 of the Second Amended Complaint as phrased,demands strict proof thereof, and refers all questions of law to the Honorable Court. 279. BES denies the allegationscontained in Paragraph 279 of the Second Amended Complaint as phrased,demands strict proof thereof,and refers all questions of law to the Honorable Court. 280. BES denies the allegationscontained in Paragraph 280 of the Second Amended Complaint as phrased, demands strict proof thereof, and refers all questions of law to the Honorable Court. 281. BES denies the allegationscontained in Paragraph 281 of the Second Amended Complaint as phrased, demands strict proof thereof, and refers all questions of law to the Honorable Court. 282. BES denies the allegationscontained in Paragraph 282 of the Second Amended Complaint and demands strict proof thereof. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 15 283. BES denies the allegationscontained in Paragraph 283 of the Second Amended Complaint and demands strict proof thereof. 284. BES denies the allegationscontained in Paragraph 284 of the Second Amended Complaint, includingall subparts,and demands strict proof thereof. 285. BES denies the allegationscontained in Paragraph 285 of the Second Amended Complaint, demands strict proofthereof,and refers all questions of law to the Honorable Court. 286. BES denies the allegationscontained in Paragraph 286 of the Second Amended Complaint and demands strict proof thereof. COUNT XXV - VIOLATION OF BUILDING CODE (Against BES) 287. BES re-allegesand incorporates by reference the responses contained in Paragraphs 1 through 80 above as if more fullyset forth herein. 288. Paragraph 288 of the Second Amended Complaint does not set forth any allegations as against BES, but merely purports to cite to Section 553.84, Florida Statutes. As such, no response is required. To the extent said Paragraph impliesor infers any code violations, liability or wrong doing on the part of BES for damages or other relief,then the allegationscontained in said Paragraphs are specifically denied. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 16 289. BES denies the allegationscontained in Paragraph 289 of the Second Amended Complaint, demands strict proof thereof, and refers all questions of law to the Honorable Court. 290. BES denies the allegationscontained in Paragraph 290 of the Second Amended Complaint as phrased,demands strict proof thereof, and refers all questions of law to the Honorable Court. 291. BES denies the allegationscontained in Paragraph 291 of the Second Amended Complaint, demands strict proof thereof,and refers all questions of law to the Honorable Court. 292. BES admits the allegationscontained in Paragraph 292 of the Second Amended Complaint. 293. BES denies the allegationscontained in Paragraph 293 of the Second Amended Complaint,demands strict proofthereof,and refers allquestionsof law to the Honorable Court. 294. BES denies the allegationscontained in Paragraph 294 of the Second Amended Complaint, includingall subparts,and demands strict proof thereof. 295. BES denies the allegationscontained in Paragraph 295 of the Second Amended Complaint,demands strict proofthereof,and refers all questionsof law to the Honorable Court. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 17 296. BES denies the allegationscontained in Paragraph 296 of the Second Amended Complaint, demands strict proof thereof, and refers all questions of law to the Honorable Court. GENERAL DENIAL OF ALLEGATIONS BES denies each and every allegationasserted by Plaintiff which is not specifically admitted herein and demands strict proof thereof. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE Plaintiff has failed to set forth a cause of action against BES for which relief can be granted. Plaintiff's recovery against BES is barred by its failure to set forth ultimate facts,which satisfythe required elements necessary for its count for negligence. The Second Amended Complaint is devoid of any details, specifics, or ultimate facts regarding (a) the nature of the allegedlydefective work by BES related to the glazing system; (b) the specificconduct of BES that was the proximate cause of the alleged damages; (c) the specificsections of the Florida Building Code, permits and plans,and industrystandards to which BES failed to adhere while performing its scope of work on the Projectand/or violated; and (d) the specificsections of the State Minimum Building Codes Act and the local,state, and national buildingcodes and regulationsto which BES allegedlyfailed to adhere and/or violated. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 18 SECOND AFFIRMATIVE DEFENSE BES affirmatively states that, at all times material hereto, it complied with the terms and conditions of its subcontract with GCC, all applicable building codes, rules and regulations,which was inspected and approved by GCC, PMG, URVANX, and the local BuildingOfficial,and that Plaintiff is barred from recovering for any damages resultingfrom any actions or omissions beyond the scope of BES's obligations or for which BES owed no legalduty. THIRD AFFIRMATIVE DEFENSE BES affirmatively states that its obligationsfor the work performed pursuant to its subcontract with GCC are strictly limited by any disclaimer, limitation of liability, and express warranty clauses found within the terms and conditions of its contract with GCC. FOURTH AFFIRMATIVE DEFENSE To the extent there were any alleged errors or omissions in the construction related to BES's scope of work, the condition was patent, inspected, approved, and accepted (expresslyor impliedly)by GCC, the project'sarchitect, owner/developer, and/or the agents, employees, representatives,assignees, subrogors, privies,and or predecessor/successor in interest thereof. Pursuant to the Slavin doctrine and its progeny, and the related principlesof release, estoppel,waiver and merger, Plaintiff is barred from recovering against BES. See Slavin v. Kay, 108 So.2d 462 (Fla.1959). Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 19 FIFTH AFFIRMATIVE DEFENSE BES affirmatively avers that it faithfully followed and complied with the express and applicable provisions of the contract documents, plans and specifications. Therefore, Plaintiff's claims are barred by the Spearin Doctrine espoused under United States v. Spearin,248 U.S. 132(1918) and its progeny. SIXTH AFFIRMATIVE DEFENSE Plaintiffs alleged damages are barred or must be reduced or limited pursuant to the Economic Waste Doctrine to the extent remediation results in improvements, betterments, enhancements, or economic waste, and must be otherwise, measured, limited,and restricted pursuant to the requirements set forth in Grossman Holdings,ltd. v. Hourihan, 414 Sold 1037 (Fla. 1982). Discovery is ongoing and this affirmative defense will be supplemented upon receiptof further information. SEVENTH AFFIRMATIVE DEFENSE In the event that any liability is imposed upon BES for Plaintiffs alleged damages, such liability, if any, was caused in whole or in part, by the acts or omissions of other responsible persons and/or entities,over whom BES had no control, supervisory duties, or dominion, and should be apportioned pursuant to Florida Statutes §768.81, and the principlesof law set forth in Fabre v. Marin, 623 Sold 1182 (Fla. 1993), with the following: Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 20 Plaintiff, Sage Beach Condominium Association; , Plaintiffs property management, staff,and employees responsible for maintenance of the electrical and fire alarm systems; PMG Driftwood, LLC- the Project'sdeveloper; Glenewinkel Construction Company, LLC- the Project's general contractor; Urvanx, LLC- the Project'sarchitect; o Shamrock Engineering, Corp- the Project'smechanical, electrical,and plumbing engineer of record; , Calvin, Giordano & Associates, Inc.- the Project'scivil engineer of record; o CHM Structural Engineers, LLC- The Project'sstructural engineer of record; Armstrong Air Condition & Heating of Central Florida, Inc.- the Project'sHVAC subcontractor; Associated Steel and Aluminum, Inc.- the Project's metals and aluminum construction and installation subcontractor; B. Cody Plumbing, Inc.- the Project'splumbing subcontractor; Bradford Products, LLC- the Project'sresidential pools subcontractor; . Construction Specialties,Inc.- the Project's aluminum Iouvers subcontractor; . Dun-Rite Marble & Granite, Inc.- the Project'sexterior stone cladding, unit tiles,balconies, corridor and counter top subcontractor; I East Coast Contractors Supply, Inc.- the Project's flood vents subcontractor; o Ferguson Enterprises, Inc.- the Project's plumbing fixtu res subcontractor; o Fine Line Electric, Inc.- the Project's fire protection system subcontractor; Flood Panel, LLC- the Project'sflood panelssubcontractor; . Hollywood Strone, Inc.- the Project'spavers subcontractor; JLK Caulking and Coating Company- the Project's caulking and waterproofingsubcontractor; . Lushlife,LLC- the Project'splantingand irrigation subcontractor; New Door Installation Co. - the Project's door installation subcontractor; Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 21 o Next Door Distribution Company - the Project'sdoor installation subcontractor; e R&L Painting,Inc.- the Project'spaintingsubcontractor; I Rosen Materials, LLC- the Project'sstucco subcontractor; . Security Innovative Solutions, Inc.- the Project's overhead gates subcontractor; . Southern Coast Enterprises, Inc.- the Project's roofing and waterproofingsubcontractor; . South Dade Lighting,Inc.- the Project'slightfixture subcontractor; . Southern Fire Control, Inc.- the Project'sfire protection system subcontractor; . Tekton Construction, Corp.- the Project'sconcrete shell subcontractor; and . Zarrella Construction, Inc.- the Project'sdrywall,metal framing and insulation subcontractor; , Pursuant to Nash v. Wells Fargo, 678 So.2d 1262 (Fla. 1996), BES reserves the right to amend this affirmative defenses to name additional unknown non-parties as soon as practicalupon identifying same up to the time of trial. EIGHTH AFFIRMATIVE DEFENSE BES affirmatively avers that the subject property has been under the Plaintiff's control for several years. The damages claimed by the Plaintiff are the result of independent intervening causes, acts and/or omission of others, environmental factors/weather related events, acts of God, including the harsh coastal salt water environment, which can accelerate corrosion of metal components of the glazing system and the deterioration of sealants, gaskets,and other glazing components if not properly maintained and is outside of BES's control. Therefore, Plaintiff cannot recover against BES. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 22 NINTH AFFIRMATIVE DEFENSE BES affirmatively states that Plaintiffs claims are time barred pursuant to the applicable statute of limitations set forth in §95.11, Fla. Stat. Many (ifnot all)of the alleged defects claimed against the BES were patent. Therefore, Plaintiffs claims against the BES should have been filed within four years from actual possession, issuance of a certificate of occupancy or date of substantial completion of BES's contract. The Certificates of Occupancy were first issued in 2016. Actual possession and completion of BES's contact occurred more than 4 years priorto Plaintiff filingthis action against the BES. Plaintiff did not file its claims against BES until August 31, 2021 (when it filed its Motion for Leave to File First Amended Complaint)/. Therefore, pursuant to §95.11(3)(c),Fla. Stat, Plaintiffs claims against BES are barred by the statute of limitations. TENTH AFFIRMATIVE DEFENSE Plaintiff claims are barred or should be abated based upon Plaintiffs failure to comply with all conditions precedent. Specifically, Plaintifffailed to comply with Florida Statute, Section 558, et. seq., by serving a pre-suitnotice. Such failure operates as a bar or reduction in damages that may otherwise be awarded to Plaintiff for its failure to mitigate its damages. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 23 ELEVENTH AFFIRMATIVE DEFENSE To the extent that BES is liable to Plaintiff for any damages, BES is entitled to a credit, set-off or reduction of all sums of money payable or paid by settlement, judgment, collateral source benefits under Section 768.76 and Chapter 627 Fla. Stat.,or otherwise, entered into and/or received by Plaintiff from any other person or entityfor the damages alleged by Plaintiff in this action. See also Sections 46.015 and 768.041, Florida Statutes. TWELFTH AFFIRMATIVE DEFENSE BES affirmatively states asserts that the alleged defects and deficiencies were caused in whole or in part by Plaintiff's failure to mitigate,lack of preventative maintenance, and/or failure to maintain or properly repair the glazing system, including windows, sliding glass doors, and glass doors and their hardware components, and its recovery, if any should be barred, reduced or limited accordingly. The glazingsystem installed at the Projectrequireregularmaintenance and failure to properly maintain the glazing system will result in the conditions described in Plaintiff's experts' reports, includingpremature corrosion to metal materials and components and the deterioration of sealants, gaskets,and other components exposed to the harsh coastal salt water environment. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 24 THIRTEENTH AFFIRMATIVE DEFENSE BES affirmatively avers that in the event it is determined there were defects within its scope of work, BES is entitled to a set off or reduction for the partialor complete expirationof the intended and expected useful life of allegedlydefective components because Plaintiff enjoyed and retained the benefit of said buildingcomponents from the completion of the subject Project,Plaintiff is entitled to recover no more than the amount needed to restore the property to the condition it was in priorto the injury.The measure of the damages should, therefore, include a reduction for the extended period of use, or increased lifeexpectancy of the materials installed by BES alleged as defects in this action. In addition, if the Plaintiff elects,or has elected to adopt a more expensive design and/or product to replace or repair the alleged defects or deficiencies,the recovery should be limited to what would have been the reasonable cost of repair according to the originaldesign and/or the reasonable cost of replacingthe materials installed by BES or similar product, prorated to account for the increased lifeexpectancy of the materials. See, Grossman v. Sea Air Towers, Ltd.,513 So. 2d 686 (Fla.3d DCA 1987); Mall v. Pawelski, 626 So. 2d 291 (Fla.4th DCA 1993). FOURTEENTH AFFIRMATIVE DEFENSE To the extent that BES's work on the subject property, if any, was subsequently modified, damaged or disturbed, BES is not liable for any resultingloss or damages. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 25 FIFTEENTH AFFIRMATIVE DEFENSE BES affirmatively asserts that to the extent it is determined there were issues with its scope of work, BES's work was performed in accordance with the designers' plans and specifications, complied with all applicablecodes and statutes, passed all applicable inspectionsby the regulatoryauthorities with jurisdictionover the project,and as such, these regulatory authorities' conclusions are to be treated with deference. Therefore, Plaintiffs claims against BES are barred under the Seibert Doctrine. Edward J. Seibert A.1.A. Architect and Planner, PA v. The Bayport Beach and Tennis Club Ass'n, Inc.,573 So. 2d 889 (Fla.2d DCA 1990). RESERVATION OF RIGHT TO AMEND Defendant, FINE LINE ELECTRIC, INC., hereby reserves its right to amend its Affirmative Defenses as the same may become necessary though the course of pre-trial discovery. WHEREFORE, Defendant, BUILDING ENVELOPE SYSTEMS, INC., demands judgment against Plaintiff,SAGE BEACH CONDOMINIUM ASSOCIATION, INC., dismissing its Second Amended Complaint with prejudice,and for such other relief that this Honorable Court deems just and proper. DEMAND FOR JURY TRIAL BES hereby demands a jury trial on all issues so triable herein as a matter of right. Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 26 CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished via the Florida e-Portal Electronic Notification System, and/or electronic mail, to all counsel of record on the Service List,this 11 th day of March, 2022. LUKS, SANTANIELLO, PETRILLO, COHEN & PETERFRIEND Attorneys for Defendants FINE LINE ELECTRIC, INC., NEW DOOR INSTALLATION CO., and BUILDING ENVELOPE SYSTEMS, INC. 110 Southeast 6thStreet,20th Floor Fort Lauderdale, FL 33301 Telephone: (954) 761-9900 Facsimile: (954) 761-9940 BViSiDauidZ.RM.ZK David L. Rosinsky,Esq. Florida Bar No.: 077061 drosinsky@insurancedefense.net spare@insurancedefense.net LuksFLL-Pleadings@LS-Law.com Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 27 SERVICE LIST PhillipE. Joseph, Esq. David L. Rosinsky, Esq. Evan Small, Esq. Daniel J. Santaniello, Esq. Gabriel Z. Coelho, Esq. Luks, Santaniello, Petrillo,Cohen ElijahC. Waring, Jr., Esq. Ball Janik, LLP & Peterfriend 100 Southeast 2d .th Street, Suite 3310 110 Southeast 6th Street, 20, Floor Miami, FL 33131 Fort Lauderdale, FL 33301 Tel: 786-770-8665 Tel: (954) 761-9900 Direct: 786-770-8650 Fax: 407-902-2105 Fax: (954) 761-9940 pjoseph@balljanik.com drosinsky@insurancedefense.net spare@insurancedefense.net gcoelho@ba janik.com LUKSFLL-PIeadings@LS-Law.com ewaring@ba janik.com ngracey@ba janik.com Icollado@ba janik.com cbetancourt@balljanik.com cmarriott@balljanik.com Counsel for Fine Line Electric, Inc., New Door Installation Co., and Building Counsel for Plaintiff Envelope Systems, Inc. Ga,y Baumann, Esq. Jeremy C. Daniel, Esq. Elizabeth M. White, Esq. Christal R. Tomac, Esq. Baumann, Gant & Keeley,PA 1401 East Broward Boulevard, Suite 200 Daniels, Rodriguez,Berkeley,Daniels & Cruz, Fort Lauderdale, Florida 33301 P.A. Tel: (954) 440-4611 4000 Ponce de Leon Boulevard, Suite 800 Fax: (954) 440-4613 Coral Gables, FL 33146 gbaumann@baumannlegal.com Tel: (305) 488-7988 ewhite@baumannlegal.com Fax: dcaleca@baumannlegal.com (305) 488-7978 ngloria@baumannlegal.com jdaniels@drbc-law.com ctomac@drbc-law.com dortiz@drbc-law.com service-jcd@drbc-law.com service-crt@drbc-law.com Counsel for PMG Driftwood, LLC and Glenewinkel Construction Company, LLC Counsel for Urvanx, Inc. Josh M. Rubens, Esq. Sanaz Alempour, Esq. Kluger,Kaplan,Silverman, Katzen & Levine, Cole, Scott & Kissane, PA P.L. 600 North Pine Island Road, Suite 500 201 South Biscayne Boulevard, 27th Floor Miami, Florida 33131 Plantation, Florida 33324 Tel: (305) 379-9000 Tel: (954) 343-3902 jrubens@klugerkaplan.com Fax: (954) 474-7979 Sanaz.alempour@csklegal.com Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 28 Ian.calder@csklegal.com Toni.ortiz@csklegal.com Counsel for PMG Driftwood, LLC Counsel for Calvin, Giordano & Associates, Inc. Scott L. Buscemi, Esq. Manuel A. Rodriguez, Esq. Property Markets Group Leslie V. Marenco, Esq. 1441 Brickell Avenue, Suite 1510 Trust Counsel Miami, Florida 33131 Tel: (305) 384-6745 357 Almeria Avenue, Suite 103 sbuscemi@propertymg.com Coral Gables, Florida 33134 Tel: (305) 707-7126 mannyar@gmail.com rodriguez@trustcounsel.com marenco@trustcounsel.com dulce@trustcounsel.com Counsel for Shamrock Engineering Corp. General Counsel for PMG Driftwood, LLC Ryan M. Charison, Esq. Robert H. de BESsco, Ill,Esq. George R. Truitt, Esq. Jana M. Fried, Esq. Anthony Lopez, Esq. Cole, Scott & Kissane, PA Cole, Scott & Kissane, PA 9150 Dadeland Boulevard Suite 1400 600 North Pine Island Road, Suite 600 Miami, Florida 33156 Plantation, Florida 33324 Tel: (305) 350-5300 Tel: (954) 473-1112 Fax: (305) 373-2294 Fax: (954) 474-7979 Ryan.Charlson@csklegal.com Robert.DeBESsco@csklegal.com George.Truitt@csklegal.com Anthony.Lopez@csklegal.com Jana.Fried@csklegal.com Nicole.Kaufman@csklegal.com Joeicy.Fanjul@csklegal.com Susana.Rodriguez@csklegal.com Debbie.Arencibia@csklegal.com Judith.Gracia@csklegal.com Construction.Miami@csklegal.com Lisa.Heftel@csklegal.com Construction.FTLW@csklegal.com Counsel for CHM Structural Engineers, LLC Counsel for Bradford Products, LLC Alexander E. Barthet, Esq. Scott D. Rembold, Esq. Larry L. Cook, Esq. Jay P. Dinan, Esq. The Barthet Firm Rembold Hirschman, LLC 200 South BiscayneBoulevard, Suite 1650 Miami, FL 33131 2121 Ponce de Leon Boulevard, Suite 500 Tel: (305) 347-5290 Coral Gables, FL 33134 alex@barthet.com Tel: (305) 442-9111 Icook@barthet.com Fax: (305) 442-9001 Cynthia Hosein chosein@barthet.com srembold@therhlawfirm.com service@barthet.com jdinan@therhlawfirm.com Sage Beach Condo. Assn. v. PMG Driftwood, LLC, et al Case No. CACE-20-0175320 (21) Consolidated with Case No. CACE-20-017790 Page 29 imalcolm@therhlawfirm.com courtdocs@therhlawfirm.com Counsel for Southern Fire Control Inc. and Counsel for Lushlife,LLC Fergusons Enterprises,Inc.