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Filing # 192455528 E-Filed 02/21/2024 04:27:53 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v. CASE NO.: 2020-CA-002942-ON
ROYAL OAK HOMES, LLC, a Florida
limited liability company; ADVANCED ROYAL OAK HOMES, LLC’S
WRAPPING AND CONCRETE RESPONSE AND
SOLUTIONS OF CENTRAL FLORIDA, MEMORANDUM OF LAW IN
INC., a Florida corporation; DON KING’S OPPOSITION TO PLAINTIFF’S
CONCRETE, INC., a Florida corporation; MOTION FOR PARTIAL
HUGH MACDONALD CONSTRUCTION, SUMMARY JUDGMENT ON
INC., a Florida corporation; IMPERIAL DEFENDANT’S NON-
BUILDING CORPORATION, a Florida DELEGABLE DUTY
corporation; PREMIER PLASTERING OF
CENTRAL FLORIDA, INC. n/k/a TGK
STUCCO, INC., a Florida corporation;
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida corporation;
WEINTRAUB INSPECTIONS &
FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; THE DIMILLO
GROUP, LLC, a Florida limited liability
company; WOLF’S IRRIGATION &
LANDSCAPING, INC., a Florida
corporation; SUMMERPARK HOMES,
INC., a Florida corporation; BROWN +
COMPANY ARCHITECTURE, INC., a
Florida corporation;
EXPERT PAINTING & PRESSURE
WASHING, INC., a Florida corporation,
Defendants.
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/
ROYAL OAK HOMES, LLC, a Florida
limited liability company,
Crossclaim Plaintiff,
v.
ADVANCED WRAPPING AND
CONCRETE SOLUTIONS OF CENTRAL
FLORIDA, INC., a Florida corporation;
DON KING’S CONCRETE, INC., a Florida
corporation; HUGH MACDONALD
CONSTRUCTION, INC., a Florida
corporation; IMPERIAL BUILDING
CORPORATION, a Florida corporation;
PREMIER PLASTERING OF CENTRAL
FLORIDA, INC. n/k/a TGK STUCCO, INC.,
a Florida corporation; WEATHERMASTER
BUILDING PRODUCTS, INC., a Florida
corporation; WEINTRAUB INSPECTIONS
& FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; WOLF’S
IRRIGATION & LANDSCAPING, INC., a
Florida corporation; BROWN + COMPANY
ARCHITECTURE, INC., a Florida
corporation; EXPERT PAINTING &
PRESSURE WASHING, INC., a Florida
corporation,
Crossclaim Defendants.
/
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida Corporation,
Third-Party Plaintiff,
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v.
ALL GLASS INSTALLATION COPRP., a
Florida corporation; CASEY HAWKINS
GLASS, INC., a Florida corporation; DEAN
NESBIT, LLC, a Florida limited liability
company; HELBERG ENGERPRISES,
LLC, a Florida limited liability company;
HOBBIT WINDOWS, LLC, a Florida
limited liability company; T&M
CONSTRUCTION OF SANFORD, INC., a
Florida corporation; WELL DONE
WINDOWS, INC., a Florida corporation;
and WELL HUNG WINDOWS & DOORS,
LLC, a Florida limited liability company,
Third-Party Defendants.
/
ROYAL OAK HOMES, LLC’S RESPONSE AND MEMORANDUM OF
LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT ON DEFENDANT’S NON-DELEGABLE DUTY
Defendant, Royal Oak Homes, LLC (“Royal Oak”), responds in opposition to
Plaintiff, Villas at Emerald Lake Homeowners Association, Inc.’s (“Association” or
“Plaintiff”), Motion for Partial Summary Judgment on Royal Oak’s Non-Delegable
Duty and Fifth and Twenty-Third Affirmative Defenses (the “Motion”).
First, Plaintiff’s primary argument for summary judgment on Royal Oak’s
Fifth Defense, which is based on apportionment under Section 768.81, Florida
Statutes, is predicated on a mistaken understanding of the non-delegable duty
doctrine and its alleged impact on apportionment under that statute. Even this Court
has ruled as recently as August 3, 2023 that “Fla. Stat. §768.81 does not contain any
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exclusion or provision addressing non-delegable duties.” Lakeview Pointe at
Horizon West Homeowners Ass’n, Inc. v. Pulte Home Corp., et. al., Case No. 2020-
CA-8018-O (Fla. Cir. Ct. August 3, 2023) (denying plaintiff’s amended motion for
summary judgment on affirmative defense based on apportionment under Sections
768.31 and 768.81(3) and Fabre v. Martin, 623 So. 2d 1182 (Fla. 1993).1 Plaintiff
fails to cite in its Motion or otherwise provide this Court with a copy of its decision
in Lakeview Point. However, this Court concluded in Lakeview Point there was no
law supporting the proposition that apportionment was not available under
circumstances similar to those in this case, and further found that granting the
plaintiff’s summary judgment motion “would deprive the Defendant of its right
under Florida law to have a trier of fact apportion fault.” Id.2 That same finding
applies here where Plaintiff similarly seeks to deprive Royal Oak of its right under
Florida law to have a trier of fact apportion fault. For this reason alone, this Court
should deny Plaintiff’s motion for summary judgment on Royal Oak’s Fifth Defense.
1 This trial court order and others supporting Royal Oak’s argument that no non-delegable duty
exists under the circumstances of the claims and undisputed facts of this case are included in
Exhibit A to this Response and in Royal Oak’s Request for Judicial Notice filed with this Court.
2 Plaintiff attaches, but does not cite in the Motion, this Court’s similar ruling in Beacon Park
Phase II Homeowners Ass’n, Inc. v. D.R. Horton, Inc., Case No.: 2020-CA-007042-O (Fla. Cir.
Ct. August 7, 2023) (order granting and denying in part plaintiff’s motion for partial summary
judgment on D.R. Horton’s non-delegable duty and its Fifth and Sixth Affirmative Defenses ruling
that “[e]xistence of a non-delegable duty does not equate to existence of vicarious liability” and
Section 768.81 “does not contain any exclusion or provision addressing non-delegable duties.”).
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Second, Plaintiff also asserts this alleged non-delegable duty under its Section
553.84 statutory claim and the Motion with respect to Royal Oak’s Twenty-Third
Defense. 3 Royal Oak’s Twenty-Third Defense points out Plaintiff’s inability to
prove its 553.84 claim against Royal Oak because Royal Oak indisputably did not
perform any construction work at Emerald Lake and therefore could not have
“committed” the alleged code violations as required by Section 553.84. Plaintiff fails
to cite any provision of this statute establishing a non-delegable duty because it is
not a statutory element under Section 553.84, and it in fact is contrary to the statute.
Finally, Plaintiff’s legal arguments for this non-delegable duty are barred as a
matter of law, and they are fundamentally flawed. Plaintiff alleges a non-delegable
duty in tort under its negligence and vicarious liability claim against Royal Oak. This
claim is barred by the economic loss rule, which Royal Oak has asserted as a defense.
Royal Oak is moving for partial summary judgment on this claim. Plaintiff’s Motion
ignores this defense and the economic loss rule.
Nevertheless, under Florida law, Royal Oak cannot be charged with the
negligent acts of independent contractors, such as Royal Oak’s subcontractors.
Plaintiff apparently argues that a “non-delegable duty” owed by Royal Oak renders
3 Plaintiff repeatedly refers to Royal Oak’s Twenty-Third and Fifth Defenses as “affirmative”
defenses, but Royal Oak merely asserted “defenses” and specifically explained in its “defenses”
that Royal Oak was neither admitting liability nor “assuming the burden of proof or persuasion on
any issue unless required by law.” Royal Oak’s Answer and Defenses to Plaintiff’s Second
Amended Complaint and Second Amended Crossclaim Complaint, p. 8.
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this general rule inapplicable in this case. But Plaintiff is asking this Court to make
new law by treating the commonplace non-delegable duty in contract as a general
non-delegable duty that applies in tort or under statutes that contain no such duty.
Plaintiff needs to conflate contract and tort duties in its Motion because
Plaintiff has not pled a breach of express contract claim, even though every original
townhome owner Plaintiff sues on behalf of in this case entered into an express
contract with express warranties with Royal Oak. Plaintiff’s arguments depend on
statements pulled from inapposite case law involving actual contractual claims based
on contractual duties, inherently dangerous activities, and construction site personal
injuries, together with statutory provisions that give rise to neither a non-delegable
duty nor a private cause of action. Plaintiff cites no binding case imposing a non-
delegable duty in connection with its claims seeking to recover only repair costs
because no such case exists. For these reasons, Plaintiff’s Motion should be denied.
I. INTRODUCTION AND STATEMENT OF FACTS
Plaintiff sues Royal Oak and its subcontractors for alleged construction
defects at the Villas at Emerald Lake townhome community located in Kissimmee,
Osceola County, Florida (“Emerald Lake”), constructed by Royal Oak’s
subcontractors. Plaintiff asserts claims against Royal Oak for negligence and
vicarious liability (Count I), breach of Florida Building Code (Count II), and breach
of implied warranties (Count III), in its Second Amended Complaint. Plaintiff
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asserts no breach of contract claim, even though every original townhome owner had
a written purchase agreement with Royal Oak. Affidavit of Jeff Fellows in Support
of Royal Oak Homes, LLC’s Motion for Partial Summary Judgment as to Claims
for Breach of Implied Warranties and Consequential Damages, ¶ 7. 4
The only damages Plaintiff identifies are economic losses, that is, costs to
repair or the loss of the contractual “benefit of the bargain.” Plaintiff alleges in Count
I that Plaintiff, as the homeowners’ association, “has been and will be required to
expend large sums of money for the repair and maintenance of the Royal Oak
townhomes and common areas and for damages caused by the defects and
deficiencies.” Second Amended Complaint, ¶ 72. Plaintiff makes similar allegations
in Counts II and III. Id., ¶¶ 79, 87. Further, Plaintiff’s experts opine only on costs to
remove and replace the building envelope, i.e. exterior stucco siding and roofs, on
the townhomes in Emerald Lake for the alleged construction installation defects. See
Deposition of Felix Martin, (“Martin Dep.”), 35:21-25, 36:1-15, 37:2-14, Ex. 6, pp.
3-4, 8-19; Deposition of Sean Heaney, (“Heaney Dep.”), 35:3-10, 36:6-16, 37:4-7,
Ex. 27. 5 Plaintiff has made no claim for personal injury or damage to other property.
Plaintiff’s undisputed facts include Royal Oak’s admission that “it contracted
with independent contractors to construct” Emerald Lake. (emphasis added)
4
The Affidavit of Jeff Fellows was filed separately with this Court on January 18, 2024.
5 The deposition transcripts of Plaintiff’s experts and relevant exhibits were separately filed with
the Court on January 19, 2024.
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Motion, p. 5, ¶ 4. Royal Oak accordingly performed none of the work and provided
none of the material for the construction of Emerald Lake. Instead, the work and
materials in connection with the design, planning, construction, or inspection of the
actual subcontractor construction work were provided by the design professionals
and subcontractors. Affidavit of Colby Franks in Support of Defendant, Royal Oak
Homes, LLC’s, Response and Memorandum of Law in Opposition to Plaintiff’s
Motion for Partial Summary Judgment Regarding Royal Oak Homes, LLC’s Non-
Delegable Duty (“Franks Aff.”), ¶¶ 11, 126; Deposition of Lucas Morris, 111:12-15;
Deposition of Jeff Fellows, 77:9-20. Plaintiff ignores Royal Oak’s contracts with its
subcontractors who performed the work that make clear the subcontractors were
independent contractors responsible for the manner and means of accomplishing
their respective work. See e.g., Franks Aff., Ex. B, ¶¶ 2, 4).
Plaintiff seeks this Court’s imposition of a non-delegable duty on Royal Oak
simply because of Royal Oak’s status as the general contractor at Emerald Lake.
Motion, pp. 3, 10-18. 7 From this false premise, Plaintiff asserts that Royal Oak (1)
is vicariously liable for the actions of its subcontractors and cannot apportion fault
under Section 768.81 pursuant to Royal Oak’s Fifth Defense, and (2) is liable in
some unspecified way under Section 554.83 for alleged code violations “committed”
6
The Franks Affidavit will be separately filed with this Court.
7Plaintiff asserts without support that Royal Oak served as the developer for Emerald Lake.
Motion, p. 6, ¶ 7. That simply is not true. Franks Aff., ¶ 5.
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by its subcontractors under Royal Oak’s Twenty-Third Defense. Id. at pp. 24-25. As
we now show, Plaintiff’s Motion should be denied in its entirety.
II. Argument and Supporting Memorandum of Law
A. Plaintiff’s Tort Claim Fails as a Matter of Law.
1. Plaintiff’s Negligence and Vicarious Liability Claim is
Barred by the Economic Loss Rule.
Florida’s economic loss rule bars Plaintiff’s negligence and vicarious liability
claim for the reasons set forth in Royal Oak’s Motion for Partial Summary Judgment
as to Count I of Plaintiff’s Second Amended Complaint for Negligence and
Vicarious Liability and Incorporated Memorandum of Law filed with this Court on
January 19, 2024, and Royal Oak is entitled to summary judgment on this claim.
2. Plaintiff Failed to Show that Royal Oak Owed or Breached a
Non-Delegable Duty in Tort under the Circumstances of
Plaintiff’s Negligence and Vicarious Liability Claim.
Plaintiff’s non-delegable duty argument is also flawed because Plaintiff relies
on inapposite case law and equally inapplicable statutory provisions. Non-delegable
duties in tort are extremely rare, inapplicable here, and Plaintiff nowhere informs the
Court that Plaintiff is actually asking the Court to make new law.
a. Plaintiff’s Inherently Dangerous Activity and Personal
Injury Case Law Is Inapposite.
The general rule is that a party is not liable for the acts of independent
contractors it has hired. See e.g., Paul N. Howard Co., v. Affolder, Inc., 701 So. 2d.
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402, 404 (Fla. 5th DCA 1997); E.J. Strickland Constr., Inc. v. Dep’t of Agriculture,
515 So. 2d 1331, 1335 (Fla. 5th DCA 1987); Carrasquillo v. Holiday Carpet Service,
Inc., 615 So. 2d 862, 863 (Fla. 3d DCA 1993).
The First District recently reaffirmed this general rule in Garcia v. Southern
Cleaning Service, Inc., 360 So. 3d 1209, 1210-11 (Fla. 1st DCA 2023), which
involved a personal injury action against a general contractor retained to provide
cleaning services to Win-Dixie Stores that was subcontracted out to an independent
contractor. The First District affirmed summary judgment for the general contractor,
applying the general rule that a general contractor is not liable for the acts of its
independent contractor when their contract did not create a non-delegable duty. Id.
Plaintiff makes no argument in its Motion that Royal Oak’s subcontract
agreements with its subcontractors who performed the work at Emerald Lake creates
a non-delegable duty because they do not; instead, each subcontractor expressly
agrees it is an independent contractor responsible for the means and methods of
construction, including providing all labor, materials, and supervision for “quality
control” with a full-time supervisor “responsible for constantly monitoring the work
quality of [its] crews.” Franks Aff., Ex. B, ¶¶ 2, 4(a), 27, Addendum 1, p. 2).8
8 Plaintiff attaches as Exhibit D to its Motion the deposition transcript of Lucas Morris, one of
Royal Oak’s corporate representatives. Plaintiff does not file the transcript or any of the exhibits
to that deposition with the Court in support of its Motion, including Composite Exhibit 76, which
were all the subcontract agreements between Royal Oak and its vendors or subcontractors for
Emerald Lake. Motion, Ex. D, 52:9-25, 53-54:11, 56:21-25, 57:1-15.
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Plaintiff makes no mention of this well-established general rule in its Motion or the
recent decision by the First District affirming it in Garcia. But that general rule is
controlling here and requires Plaintiff’s Motion to be denied.
Instead, Plaintiff relies on Florida cases that recognize exceptions to that
general rule and bear no resemblance to this case. Motion, at pp. 10-24. They involve
duties of care with respect to how construction is carried out to safeguard persons
and the property of others potentially injured during the construction process, or they
involve breaches of contractual duties.
It bears emphasis that Plaintiff also relies on non-binding trial court and
arbitration orders.9 Motion, pp. 13-14, Ex. G. Royal Oak can provide non-binding
trial court orders that denied plaintiff motions for summary judgment on alleged non-
delegable duties for construction defects and damages too. See Ravina at East Park
Homeowners’ Ass’n., Inc. v. D.R. Horton, Inc., et. al., Case No. 2021-CA-008243
(Fla. Cir. Ct. Sept. 8, 2023) (denying plaintiff motion for partial summary judgment
on general contractor non-delegable duty and its affirmative defenses that general
contractor is not liable under Section 553.84 and can apportion liability under
Section 768.81 because general contractor cannot be held jointly and severally liable
in tort or under Section 553.84, cannot be vicariously liable for subcontractors’ acts,
9 Royal Oak also notes these trial court and arbitration orders are inadmissible as summary
judgment evidence and should not be considered by this Court because these orders are not self-
authenticating and were not the subject of a Request for Judicial Notice. Fla. Stat. § 90.202(6).
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and owed no non-delegable duty in tort); Waterside Pointe Homeowners Ass’n., Inc.
v. CalAtlantic Group, Inc., Case No. 2018-CA-002328 (Fla. Cir. Ct. Feb. 21, 2023)
(denying plaintiff motion for partial summary judgment on general contractor’s
responsibility for its subcontractors, finding general contractor had no non-delegable
duty or derivative duty in tort); The Preserve at Eagle Lake Homeowners Ass’n., Inc.
v. KB Home Orlando, LLC, Case No. 2016-CA-002674 (Fla. Cir. Ct. Dec. 11, 2019)
(denying without prejudice plaintiff’s motion for partial summary judgment on KB
Home’s non-delegable duty); Lake Washington Homeowners Ass’n.., Inc. v. D.R.
Horton, Inc.-Jacksonville, Case. No. 2016-CA-20344 (Fla. Cir. Ct. Apr. 10, 2018)
(finding no non-delegable duty under Section 553.84).
It is also notable that Plaintiff cannot identify any authority for its proposition
that Royal Oak’s mere status as a general contractor creates a non-delegable duty in
tort under the circumstances of this case in Florida. Instead, Plaintiff selectively
quotes from several cases in its Motion without informing the Court about the facts
of the cases. Courts like this one decide cases based on the facts of each particular
case. Plaintiff’s omission is telling, and in some cases misleading and wrong.
For example, Plaintiff argues that Royal Oak hired subcontractors to construct
the community and, “under the doctrine of respondeat superior,” Royal Oak as the
general contractor is responsible for the subcontractors’ alleged negligence at
Emerald Lake. Motion, p. 21. Plaintiff cites two cases, Post Tensioned Engineering
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Corp. v. Fairway Plaza Assocs., 429 So. 2d 1212, 1214 (Fla. 3d DCA 1983) and
Biscayne Roofing Co. v. Palmetto Fairway Condo. Ass’n, Inc., 418 So. 2d. 1109,
1110 (Fla. 3d DCA 1982). The first case, Post Tensioned, involved enforcement of
an arbitration provision and does not explain the source of the respondeat superior
obligation. The second case, Biscayne Roofing Co., involved enforcement of an
indemnification provision and nowhere mentions the respondeat superior doctrine.
Florida law is clear, however, that the doctrine of respondeat superior applies
only to employer-employee relationships. As the Fifth District explained in Georgia-
Pacific Corp. v. Charles, 479 So 2d 140, 142 (Fla. 5th DCA 1985): “It is by now
well-established that an employer is vicariously liable for the torts of his employee
(acting within the scope of his employment) under the doctrine of respondeat
superior, but that an employer is not liable for torts caused by one considered the
employer’s independent contractor.” (citations omitted) (emphasis added). Plaintiff
admits in its undisputed facts that Royal Oak “contracted with independent
contractors to” construct Emerald Lake and has not provided the Court with any
evidence to the contrary. Motion, p. 5, ¶ 4.
Further, Plaintiff frequently cites and quotes from Bialkowicz v. Pan
American Condo. No. 3, Inc., which involved pile-driving (an inherently dangerous
activity) and other actions carried on by independent contractors at a construction
site, which damaged adjacent property. 215 So. 2d 767, 768 (Fla. 3d DCA 1968). In
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that context, the court referred to a duty of care “with respect to the property of
others” which might be injured by how the activity is carried out. Id. at 771. Thus,
Bialkowicz stands for the unremarkable proposition that a non-delegable duty has
been recognized under Florida law for inherently dangerous activities.
Similarly, Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So.
2d 676 (Fla. 3d DCA 1980), quoted in Plaintiff’s Motion at p. 11, involved a
construction site accident arising from inherently dangerous activities. Plaintiff also
relies heavily on Mastandrea v. J. Mann, Inc., 128 So. 2d 146 (Fla. 3d DCA 1961),
which involved injuries caused to third parties by the way construction was carried
out. Motion, p. 11. In that case, blocks were stacked improperly and fell over,
causing personal injury. Id. at 147. Plaintiff quotes language from Mastandrea that
refers generally to “a duty imposed by Statute or Ordinance, such as the building
Code,” but ignores the immediately following and more complete statement of the
principle involved: where a statute “requires one to do a certain thing or to take
certain precautions for the protection of persons on or near his property, he cannot
delegate such a duty . . . .” Id. at 148 (emphasis supplied). That is not this case.
ABD Constr. Co. v. Diaz, 712 So. 2d 1146 (Fla. 3d DCA 1998), cited in the
Motion at page 12, was also a personal injury case. There, the court held that a
construction company that did not obtain the permit for the work that created the
dangerous condition, did not have a contract for that work, and did not create or
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know about the dangerous condition in question, could not be held directly or
vicariously liable for the injury sustained by an individual as a result. Id. at 1147-
48. The court commented about a hypothetical scenario in which the defendant itself
obtained the permit for the construction work at issue. Id. at 1148. But this was pure
dictum, and the hypothetical scenario itself also involved personal injuries resulting
from the manner in which construction was carried out, as in Mastandrea.
Curiously, at pages 11 and 15 of the Motion, Plaintiff cites CC-Aventura, Inc.
v. Weitz Co., LLC, 2009 WL 2136527, *1 (S.D. Fla. July 13, 2009), which addressed
a motion to dismiss filed by a fourth-party defendant against a fourth-party plaintiff.
The fourth-party case included claims for common law indemnification and
contribution. Id. In its analysis of the downstream common law indemnification
claim, the district court noted that: “Under Florida law, a general contractor’s duty
of care to a property owner is a non-delegable duty subjecting the general contractor
to liability for a subcontractor’s negligence. See Mills v. Krauss, 114 So. 2d 817 (Fla.
2d DCA 1959).” Id., at *2. Given the district court’s reliance on Mills v. Krauss, and
the existence of a contractual relationship between the general contractor and the
property owner, this statement was made in the context of the recognized non-
delegable duty in contract. It does not apply to Plaintiff’s tort claim.
Indeed, several trial court orders Plaintiff cites in or attaches to the Motion,
and Plaintiff itself, relies on Mills, illustrating Plaintiff’s confusion of contractual
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duties with tort duties. See, e.g., Motion, p. 10. The Mills court ruled that a contractor
could not, by hiring independent contractors, avoid liability for breach of an express
or implied duty to use due care in carrying out the repairs it contracted to undertake.
114 So. 2d at 820-21. But this is a contractual duty, not a tort duty. As the court
noted, the “relationship created by the general contract” gave rise to a “contractual
responsibility of the general contractor” that could not be delegated. Id. at 820.
This makes sense. It would be a “strange doctrine” to hold that a contractor
could “enter into a contract with [another] to renovate and repair the premises . . . in
a skillful and workmanlike manner and then, without the consent of [the other]
employ an irresponsible party to do the work and then avoid responsibility by
seeking refuge . . . behind the men they had employed and who caused the accident
from which the damages resulted.” Id. at 821. Other cases confirm that Mills is based
on contractual liability. See e.g., CISU of Fla., Inc. v. Porter, 457 So. 2d 1118, 1119
(Fla. 1st DCA 1984); Campbell v. Bellman, 293 So. 2d 795, 796 (Fla. 3d DCA 1974).
Plaintiff has not brought a contract claim here. Mills, therefore, is irrelevant to
Plaintiff’s Count I, which asserts a common law negligence and vicarious liability
claim. As such, Mills cannot help Plaintiff obtain summary judgment on Count I.
This is likewise true for the other contractual cases cited by Plaintiff. Plaintiff
relies on People’s Trust Ins. Co. v. Lillian Lamolli, 352 So. 3d 890, 895 (Fla. 4th
DCA 2022) throughout its Motion for the proposition that even if a general
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contractor used a subcontractor, the general contractor “would remain ultimately
responsible for the subcontractor’s work.” See, e.g., Motion, pp. 11, 14. But Plaintiff
fails to inform this Court this ruling resulted from an insurance policy agreement
that required the use of a general contractor for repairs, which by law had to be
performed by a licensed roofer and hence a subcontractor. Lillian, 352 So. 3d at 892.
The case turned on what the contractual language in the insurance agreement
required. Id. at 894-95. See also City of Coral Gables v. Prats, 502 So. 2d 969, 971
(Fla. 3d DCA 1987) (noting “well-settled” rule that employer is not liable for
independent contractor’s negligence, but finding exception existed because the City
who was sued and retained the subcontractor expressly agreed to assume the duty of
maintaining the streets to protect the public in an agreement with the State).
Perhaps realizing Plaintiff needed to find its non-delegable duty in a Royal
Oak contract other than Royal Oak’s subcontracts with its subcontractors, Plaintiff
next argues the building permit application signed by Royal Oak’s qualifier on its
behalf is a “contract with Osceola County.” Motion, p. 32. In support of this
argument, Plaintiff cites City of Coral Gables, which as noted above, involved a
“Memorandum of Agreement” between the City and the State whereby the City
agreed to maintain the streets. The Court did not rely on a permit application for the
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contractual, non-delegable duty. 10 Plaintiff offers no authority that a building permit
is a contract between the general contractor and the building department.
Plaintiff repeatedly relies on the general contractor’s certification in the
building permit application that “all work will be performed to meet all provisions
of laws and ordinances regulating construction,” but the application nowhere
requires the general contractor to fulfill that certification in any particular way.
Motion, p. 7. How the general contractor fulfills its certification is left to the
discretion of the general contractor. Franks Aff., ¶ 7. At Emerald Lake, Royal Oak
hired expert subcontractors in the required construction fields for construction of the
townhomes, contractually required the subcontractors to construct the townhomes to
code and to supervise their work with a qualified, expert superintendent, and
provided levels of supervision above the subcontractor consistent with industry
standards for residential construction in Florida. Franks Aff., ¶¶ 8, 9, 11-14; Ex. B,
¶¶ 2, 3, Schedule B-1, Addendum 1, p. 2. Plaintiff cites no Florida case or other
authority that holds what Royal Oak did to meet its building permit application
certifications at Emerald Lake was improper in any way. Indeed, there is no dispute
here that the Building Department, after receiving these building permit applications,
issued building permits, inspected the construction, and issued certificates of
10Plaintiff also cites A.R. Moyer, Inc. v. Graham, 285 So. 2d 397, 401 (Fla. 1973), which involved
an architect’s common law duty to the general contractor based on the architect’s supervision of
the construction under its contract with the owner and is the basis for a professional negligence
claim against architects. It nowhere relied on a building permit application. Id.
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occupancy for each Emerald Lake townhome. (Franks Dep., 29:16-25, 30:1-10,
69:7-22, 74:4-18, 78:20-25, 79:1-13, 163:10-25, Exs. 52, 54).
Finally, Plaintiff’s reliance on Armiger v. Associated Outdoor Clubs, Inc., 48
So. 3d 864, 875 (Fla. 2d DCA 2010) is misplaced. There, the Second District applied
a longstanding non-delegable duty established by the legislature as to premises
owners. Id. at 876 (Section 768.0710 “imposes a duty of reasonable care on persons
in possession or control of business premises to maintain the premises in a
reasonably safe condition for the safety of business invitees on the premises. This
statutory duty is nondelegable.”). Section 768.0710 has long been recognized to
create a non-delegable duty to protect the physical safety of business invitees. There
is no alleged physical harm to Plaintiff or any of the townhome owners from the
alleged defects, and the alleged construction duties in this case have not been
recognized, by statute or otherwise as being non-delegable in nature.
In sum, Plaintiff offers the Court no support for its argument that Royal Oak
had a non-delegable duty to protect Plaintiff from economic losses for allegedly
required repairs for construction defects because it was the general contractor at
Emerald Lake. The undisputed evidence is that this work was performed by Royal
Oak’s subcontractors who were independent contractors. Plaintiff does not cite the
general rule that a party is not liable for the acts of its independent contractors, much
less offer any authority that, under these circumstances, the general rule does not
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apply. See e.g., Garcia, 2023 WL 3335415 at *3; E.J. Strickland Constr., Inc., 515
So. 2d at 1335; Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d at 863.
b. Plaintiff Cannot Manufacture a Non-Delegable Duty
by Reference to Chapter 489 and Chapter 553.79.
No doubt recognizing the inapplicability of its cited case law, Plaintiff tries to
bolster its position by citing to carefully selected provisions of Chapters 489 and
553, Florida Statutes. This argument is even less persuasive.
Plaintiff first points to Section 553.79(10), which simply states the general
contractor to whom the building permit is issued shall be responsible for supervision,
direction, management, and control of the construction activities. Fla. Stat. §
553.79(10). Nothing in this statute tells the general contractor how to supervise,
direct, manage and control construction activities.11 The statute also does not impose
a non-delegable duty on the general contractor or reference any duty owed by the
general contractor. This is because supervision and other training or personnel
matters are specifically excluded from the Florida Building Code by Section
553.73(2), which is not cited by Plaintiff. 12 The Florida Legislature left these
decisions to the general contractor.
11
A description of how Royal Oak supervised, directed, managed, and controlled the construction
activities at Emerald Lake is outlined, above, at page 18 of this Response. See also Franks Aff., ¶¶
8, 9, 11-14; Ex. B, ¶¶ 2, 3, Schedule B-1, Addendum 1, p. 2.
12
Section 553.73(2) provides: “Provisions relating to the personnel, supervision, or training of
personnel, or any other professional qualification requirements relating to contractors or their
workforce may not be included within the Florida Building Code.” Fla. Stat. § 553.73(2).
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Plaintiff also points to Section 489.113(2), which places subcontractors who
are not certified or licensed under the scope of the supervising contractor’s license
who is responsible for the work. Fla. Stat. § 489.113(2). Again, this provision
nowhere specifies how the general contractor must fulfill this responsibility, and
Royal Oak fulfilled it at Emerald Lake consistent with industry standards. Franks
Aff., ¶¶ 8, 9, 11-14, Ex. B, ¶¶ 2, 3, Schedule B-1, Addendum 1, p. 2.
Plaintiff also relies on Section 489.105(4) and Gatwood v. McGee, 475 So. 2d
720 (Fla. 1st DCA 1985)13 for the proposition that negligent performance of the
qualifying agent’s statutorily-imposed duty of supervision may support a claim for
damages because the “qualifying agent’s duty of supervision is nondelegable.”
Motion, pp. 12-13. Plaintiff apparently hopes the Court will conclude that Royal
Oak, a corporate entity, has a non-delegable duty applicable to Plaintiff’s claims.
Plaintiff quotes Gatwood for the proposition that Chapter 489 supports its
argument that Royal Oak owes a statutory non-delegable duty as the licensed general
contractor to supervise construction and, therefore, is liable for the alleged defects
in the construction work of its subcontractors at Emerald Lake. However, the Florida
Supreme Court in Murthy v. N. Sinha Corp., 644 So. 2d 983, 986-87 (Fla. 1994),
expressly overruled Gatwood because the lower court “conclude[d] that the
13In citing Gatwood, Plaintiff contends the case was “overruled on other grounds” than those relied
upon in its Motion. That assertion is false.
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negligent performance of the qualifying agent’s statutorily-imposed duty of
supervision may support a cause of action,” as Plaintiff quotes in its Motion. Thus,
contrary to Plaintiff’s contention, the Florida Supreme Court overruled Gatwood
precisely because Chapter 489 does not support a cause of action for damages
sustained by alleged defects in construction performed by independent contractors.
In addition to Plaintiff’s improper reliance on Gatwood, there are at least four
flaws in this argument.
First, the cited Chapter 489 provisions impose duties of supervision on
individual contractors, not the sort of absolute liability Plaintiff seeks to impose here,
and Plaintiff has submitted no evidence regarding the nature or quality of supervision
by anyone in connection with construction of Emerald Lake or what the standard of
care with respect to such supervision might be.
Second, the cited statute imposes duties of supervision on individual licensed
contractors. If a corporate entity wishes to engage in the business of construction
contracting, it must associate with an individual contractor as its qualifying agent,
but it is the individual contractor who must obtain any necessary permits. See Lake
Eola Builders, LLC v. Metro. at Lake Eola, 416 F. Supp. 2d 1316, 1318 (M.D. Fla.
2006); see also Fla. Stat. § 489.105(4), (5) (defining primary and secondary
qualifying agent as, among other things, the contractor responsible for construction
“for which he or she” has obtained the permit). As Plaintiff’s own citation
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demonstrates, it is the individual qualifying agent who is under a duty to supervise
construction and not willfully disregard and violate local building codes. See also,
Alles v. DPR, 423 So. 2d 624, 626 (Fla. 5th DCA 1982) (qualifying agent had duty
of supervision over construction); Hunt v. DPR, 444 So. 2d 997, 999 (Fla. 1st DCA
1994). Chapter 489 does not impose the “non-delegable duty” asserted by Plaintiff
on corporate entities with whom licensed contractors are associated.
Third, Chapter 489 does not make general contractors responsible for – much
less civilly liable for – any and all acts of subcontractors. General contractors cannot
even themselves perform or supervise some of the work typically involved in
construction, such as roofing work, unless they are licensed in those specialties. See
Fla. Stat. § 489.105(3) (definitions of “general contractor” and “specialty
contractor”); § 489.113(2) (unlicensed persons may work under supervision of
general contractor unless work requires specialty license); § 489.113(3) (with some
exceptions, general contractor must subcontract out designated specialty work).
Given that, it would make no sense for the statute to give rise to civil liability for all
work done by those subcontractors, as Plaintiff argues it does.
Fourth, Chapter 489 is a regulatory and administrative statute governing the
construction industry. It does not provide for, and cannot supply a basis for, civil
liability. The Florida Supreme Court’s decision in Murthy, noted above, squarely
held there is no private cause of action under Chapter 489. 644 So. 2d at 987. Yet,
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that is what Plaintiff’s argument seeks to impose under the guise of “non-delegable
duty.” Plaintiff’s position is therefore contrary to controlling law.
Moreover, because Chapter 489 imposes responsibility for supervising
unlicensed individuals only on the individual licensed contractor, its provisions
cannot be used to create duties, much less non-delegable duties, owed by Royal Oak.
If that feat could be accomplished, which it cannot, then Plaintiff is logically saddled
with the controlling holding of Murthy that there is no private cause of action.
Plaintiff cites no authority holding that a corporation may be held civilly liable when
its individual qualifying agent cannot be held liable.
In addition, while Murthy involved a suit against an individual, the Court’s
reasoning was not limited to that situation. It was instead based on the absence of
any legislative intent to create a private cause of action. Id. The Florida Legislature
subsequently clarified this point in Section 489.131(12), which provides, without
limitation, that “unless specifically, provided, the provisions of this part shall not be
construed to create a civil cause of action.” Fla. Stat. § 489.131(12).
Finally, Plaintiff’s Chapter 489 argument posits a non-delegable duty or
responsibility to supervise the construction activities on projects for which the
contractor obtains a building permit. But Chapter 489 does not provide how
supervision must be carried out, and there is no requirement that a qualifying agent
personally provide direct, continuous, on-site supervision of construction for each
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structure for which he or she is responsible. 14 Plaintiff cites no evidence showing
Royal Oak’s supervision practices violated any law or applicable standard of care.
Royal Oak appropriately supervised construction. As Mr. Franks explains,
Royal Oak hired subcontractors with expertise in the different areas of construction,
who contractually represented they were experts in their respective fields. Franks
Aff., ¶¶ 10-12, Ex. B. Royal Oak required the subcontractors to have experienced
supervisors supervise their work to ensure the work was installed per the plans and
specifications and the Florida Building Code. Id., Ex. B, Schedule B-1, Addendum
1, p. 2. Royal Oak had in place an organizational structure set up to supervise
construction. Id. at ¶¶ 12-14. This structure included the subcontractors’ supervisors,
Royal Oak builders or superintendents, who were on site every day, up to area
construction managers, and the qualifier and Vice President of Operations, who
regularly visited Emerald Lake during construction. Id. Royal Oak’s multi-level
supervisory practices are typical for residential construction in Florida. Id.
Royal Oak’s supervisory practices are also consistent with recognized
industry supervisory practices by applicable regulatory authorities under Chapter
489. See e.g., DBPR, CILB v. Edwin A. Henry, 2000 WL 248376, at *3, 14 (Fla. Div.
Admin. Hrgs., Jan, 19, 2000) (Respondent “adequately supervised the work on the
14
See Fla. Stat. § 489.117(4)(c) (no direct contract is required between general contractor and
person performing specialty contracting services, and containing no requirement of “direct,” “on-
site,” or “continuous” supervision); cf. Fla. Stat. §§ 489.113(2), 489.103(7), 489.5185(2).
25
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job sites in question through…qualified construction supervisors”; this
“organizational structure and span of management are within the norms accepted in
the construction industry”); DBPR v. David J. Quigley, Jr., 1988 WL 617856, at * 6
(Fla. Div. Admin. Hrgs. Sept. 14, 1988) (adopted by Agency Final Order, July 14,
1989) (nothing required qualifying agent to “personally supervise personally each
job…he may assign supervisory duties to other responsible persons.”); O’Connor v.
DBPR, CILB, 566 So. 2d 549, 553 (Fla. 2d DCA 1990), reversing, DOAH Case No.
89-0186 and ensuing Order of CILB (licensed air conditioning contractor was not
required “to inspect every home repair job done by every technician”); DBPR, CILB
v. Robert L. Fountain, 1990 WL 749399, * 11 (Fla. Div. Admin. Hrgs. Oct. 24, 1990)
(“It is common practice by contractors to have more than one job proceeding at the
same time, such that their supervisory time has to be divided between jobs.”)
(adopted by Agency Final Order on April 25, 1991).
In short, Plaintiff’s Chapter 489 argument relies on an inapposite statutory
provision and amounts to an end-run around the controlling decision in Murthy and
the express and clear statutory provision that precludes any claim based upon the
statutory requirements under Chapter 489. It must be rejected for that reason alone.
Plaintiff’s request for a summary judgment ruling that Royal Oak is directly
liable for any construction defects at Emerald Lake based on a non-delegable duty
to supervise also fails in light of Mr. Franks’ testimony that Royal Oak provided a
26
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structure for supervision of the construction at Emerald Lake. Plaintiff has failed to
submit any evidence showing that, even if a duty to supervise could be imposed on
Royal Oak under Chapter 489, which is not the case, Royal Oak breached that duty.
B. There is No Statutory Non-Delegable Duty under Plaintiff’s
Section 553.84 Claim.
As to Count II, asserting a cause of action under Section 553.84, Plaintiff cites
no case applying a “non-delegable duty” to the cause of action created by that statute.
This is because the plain language of the statute provides liability only against the
“person or party who committed the violation.” Fla. Stat. § 553.84 (emphasis added).
Section 553.84 further provides that a contractor who obtains a permit is not liable
for economic damage – the only damage sought by Plaintiff here – unless it “knew
or should have known” of the building code violation. Id. The Florida Legislature
firmly grounds any claim against a general contractor under the statute on that
contractor’s own negligence, not on a non-delegable duty. This classic articulation
of a negligence standard in Section 553.84 means apportionment also applies under
Section 768.81 to the statutory claim. Bre/Cocoa Beach Owner, LLC v. Bolyn
Companies, Inc., 2012 WL 12905849, *8 (M.D. Fla. Nov. 30, 2012).
In short, the concept of non-delegable duty has no application under Section
553.84. See Lake Washington Homeowners Ass’n, No. 2016-CA-20344 (denying
plaintiff association’s motion for summary judgment on D.R. Horton’s liability for
construction defects and holding that D.R. Horton “does not have a non-delegable
27
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duty in relation to the claims brought by the Association under Florida Statute
553.84.”). For this reason, Plaintiff’s Motion should be denied with respect to
Plaintiff’s Count II for alleged violations of Section 553.84, Florida Statutes.
III. CONCLUSION
For all the foregoing reasons, Plaintiff’s Motion should be denied.
Respectfully submitted,
/s/ James Michael Walls
James Michael Walls
Florida Bar No. 706272
Luis Prats
Florida Bar No. 329096
Robin H. Leavengood
Florida Bar No. 0547751
Fiona E. Foley
Florida Bar No. 118668
Alexa M. Nordman
Florida Bar No. 1025863
CARLTON FIELDS, P.A.
4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
Telephone: (813) 223-7000
Facsimile: (813) 229-4133
mwalls@carltonfields.com
lprats@carltonfields.com
rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
ffoley@carltonfields.com
nbonilla@carltonfields.com
krick@carltonfields.com
fgonzalez@carltonfields.com
Attorneys for Defendant/Crossclaim
Plaintiff, Royal Oak Homes, LLC
28
135022000.1
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 21, 2024, the foregoing was
electronically filed with the Clerk of the Court by using the E-filing Portal, which
will electronically serve this document to all registered counsel of record.
/s/ James Michael Walls
29
135022000.1
EXHIBIT A
Filing # 100159462 E-Filed 12/11/2019 02:48:50 PM
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT,
~N AND FOR SEMINOLE COUNTY, FLORIDA
THE PRESERVE AT EAGLE LAKE
HOMEOWNERS ASSOCIATION, INC., a Florida
not-for-profit corporation, on behalf of itself and as a
representative of its members, Case No.: 2016-CA-0026
Preview
Filing # 192455528 E-Filed 02/21/2024 04:27:53 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. CASE NO.: 2020-CA-002942-ON ROYAL OAK HOMES, LLC, a Florida limited liability company; ADVANCED ROYAL OAK HOMES, LLC’S WRAPPING AND CONCRETE RESPONSE AND SOLUTIONS OF CENTRAL FLORIDA, MEMORANDUM OF LAW IN INC., a Florida corporation; DON KING’S OPPOSITION TO PLAINTIFF’S CONCRETE, INC., a Florida corporation; MOTION FOR PARTIAL HUGH MACDONALD CONSTRUCTION, SUMMARY JUDGMENT ON INC., a Florida corporation; IMPERIAL DEFENDANT’S NON- BUILDING CORPORATION, a Florida DELEGABLE DUTY corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; THE DIMILLO GROUP, LLC, a Florida limited liability company; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation, Defendants. 1 135022000.1 / ROYAL OAK HOMES, LLC, a Florida limited liability company, Crossclaim Plaintiff, v. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING’S CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation, Crossclaim Defendants. / WEATHERMASTER BUILDING PRODUCTS, INC., a Florida Corporation, Third-Party Plaintiff, 2 135022000.1 v. ALL GLASS INSTALLATION COPRP., a Florida corporation; CASEY HAWKINS GLASS, INC., a Florida corporation; DEAN NESBIT, LLC, a Florida limited liability company; HELBERG ENGERPRISES, LLC, a Florida limited liability company; HOBBIT WINDOWS, LLC, a Florida limited liability company; T&M CONSTRUCTION OF SANFORD, INC., a Florida corporation; WELL DONE WINDOWS, INC., a Florida corporation; and WELL HUNG WINDOWS & DOORS, LLC, a Florida limited liability company, Third-Party Defendants. / ROYAL OAK HOMES, LLC’S RESPONSE AND MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT ON DEFENDANT’S NON-DELEGABLE DUTY Defendant, Royal Oak Homes, LLC (“Royal Oak”), responds in opposition to Plaintiff, Villas at Emerald Lake Homeowners Association, Inc.’s (“Association” or “Plaintiff”), Motion for Partial Summary Judgment on Royal Oak’s Non-Delegable Duty and Fifth and Twenty-Third Affirmative Defenses (the “Motion”). First, Plaintiff’s primary argument for summary judgment on Royal Oak’s Fifth Defense, which is based on apportionment under Section 768.81, Florida Statutes, is predicated on a mistaken understanding of the non-delegable duty doctrine and its alleged impact on apportionment under that statute. Even this Court has ruled as recently as August 3, 2023 that “Fla. Stat. §768.81 does not contain any 3 135022000.1 exclusion or provision addressing non-delegable duties.” Lakeview Pointe at Horizon West Homeowners Ass’n, Inc. v. Pulte Home Corp., et. al., Case No. 2020- CA-8018-O (Fla. Cir. Ct. August 3, 2023) (denying plaintiff’s amended motion for summary judgment on affirmative defense based on apportionment under Sections 768.31 and 768.81(3) and Fabre v. Martin, 623 So. 2d 1182 (Fla. 1993).1 Plaintiff fails to cite in its Motion or otherwise provide this Court with a copy of its decision in Lakeview Point. However, this Court concluded in Lakeview Point there was no law supporting the proposition that apportionment was not available under circumstances similar to those in this case, and further found that granting the plaintiff’s summary judgment motion “would deprive the Defendant of its right under Florida law to have a trier of fact apportion fault.” Id.2 That same finding applies here where Plaintiff similarly seeks to deprive Royal Oak of its right under Florida law to have a trier of fact apportion fault. For this reason alone, this Court should deny Plaintiff’s motion for summary judgment on Royal Oak’s Fifth Defense. 1 This trial court order and others supporting Royal Oak’s argument that no non-delegable duty exists under the circumstances of the claims and undisputed facts of this case are included in Exhibit A to this Response and in Royal Oak’s Request for Judicial Notice filed with this Court. 2 Plaintiff attaches, but does not cite in the Motion, this Court’s similar ruling in Beacon Park Phase II Homeowners Ass’n, Inc. v. D.R. Horton, Inc., Case No.: 2020-CA-007042-O (Fla. Cir. Ct. August 7, 2023) (order granting and denying in part plaintiff’s motion for partial summary judgment on D.R. Horton’s non-delegable duty and its Fifth and Sixth Affirmative Defenses ruling that “[e]xistence of a non-delegable duty does not equate to existence of vicarious liability” and Section 768.81 “does not contain any exclusion or provision addressing non-delegable duties.”). 4 135022000.1 Second, Plaintiff also asserts this alleged non-delegable duty under its Section 553.84 statutory claim and the Motion with respect to Royal Oak’s Twenty-Third Defense. 3 Royal Oak’s Twenty-Third Defense points out Plaintiff’s inability to prove its 553.84 claim against Royal Oak because Royal Oak indisputably did not perform any construction work at Emerald Lake and therefore could not have “committed” the alleged code violations as required by Section 553.84. Plaintiff fails to cite any provision of this statute establishing a non-delegable duty because it is not a statutory element under Section 553.84, and it in fact is contrary to the statute. Finally, Plaintiff’s legal arguments for this non-delegable duty are barred as a matter of law, and they are fundamentally flawed. Plaintiff alleges a non-delegable duty in tort under its negligence and vicarious liability claim against Royal Oak. This claim is barred by the economic loss rule, which Royal Oak has asserted as a defense. Royal Oak is moving for partial summary judgment on this claim. Plaintiff’s Motion ignores this defense and the economic loss rule. Nevertheless, under Florida law, Royal Oak cannot be charged with the negligent acts of independent contractors, such as Royal Oak’s subcontractors. Plaintiff apparently argues that a “non-delegable duty” owed by Royal Oak renders 3 Plaintiff repeatedly refers to Royal Oak’s Twenty-Third and Fifth Defenses as “affirmative” defenses, but Royal Oak merely asserted “defenses” and specifically explained in its “defenses” that Royal Oak was neither admitting liability nor “assuming the burden of proof or persuasion on any issue unless required by law.” Royal Oak’s Answer and Defenses to Plaintiff’s Second Amended Complaint and Second Amended Crossclaim Complaint, p. 8. 5 135022000.1 this general rule inapplicable in this case. But Plaintiff is asking this Court to make new law by treating the commonplace non-delegable duty in contract as a general non-delegable duty that applies in tort or under statutes that contain no such duty. Plaintiff needs to conflate contract and tort duties in its Motion because Plaintiff has not pled a breach of express contract claim, even though every original townhome owner Plaintiff sues on behalf of in this case entered into an express contract with express warranties with Royal Oak. Plaintiff’s arguments depend on statements pulled from inapposite case law involving actual contractual claims based on contractual duties, inherently dangerous activities, and construction site personal injuries, together with statutory provisions that give rise to neither a non-delegable duty nor a private cause of action. Plaintiff cites no binding case imposing a non- delegable duty in connection with its claims seeking to recover only repair costs because no such case exists. For these reasons, Plaintiff’s Motion should be denied. I. INTRODUCTION AND STATEMENT OF FACTS Plaintiff sues Royal Oak and its subcontractors for alleged construction defects at the Villas at Emerald Lake townhome community located in Kissimmee, Osceola County, Florida (“Emerald Lake”), constructed by Royal Oak’s subcontractors. Plaintiff asserts claims against Royal Oak for negligence and vicarious liability (Count I), breach of Florida Building Code (Count II), and breach of implied warranties (Count III), in its Second Amended Complaint. Plaintiff 6 135022000.1 asserts no breach of contract claim, even though every original townhome owner had a written purchase agreement with Royal Oak. Affidavit of Jeff Fellows in Support of Royal Oak Homes, LLC’s Motion for Partial Summary Judgment as to Claims for Breach of Implied Warranties and Consequential Damages, ¶ 7. 4 The only damages Plaintiff identifies are economic losses, that is, costs to repair or the loss of the contractual “benefit of the bargain.” Plaintiff alleges in Count I that Plaintiff, as the homeowners’ association, “has been and will be required to expend large sums of money for the repair and maintenance of the Royal Oak townhomes and common areas and for damages caused by the defects and deficiencies.” Second Amended Complaint, ¶ 72. Plaintiff makes similar allegations in Counts II and III. Id., ¶¶ 79, 87. Further, Plaintiff’s experts opine only on costs to remove and replace the building envelope, i.e. exterior stucco siding and roofs, on the townhomes in Emerald Lake for the alleged construction installation defects. See Deposition of Felix Martin, (“Martin Dep.”), 35:21-25, 36:1-15, 37:2-14, Ex. 6, pp. 3-4, 8-19; Deposition of Sean Heaney, (“Heaney Dep.”), 35:3-10, 36:6-16, 37:4-7, Ex. 27. 5 Plaintiff has made no claim for personal injury or damage to other property. Plaintiff’s undisputed facts include Royal Oak’s admission that “it contracted with independent contractors to construct” Emerald Lake. (emphasis added) 4 The Affidavit of Jeff Fellows was filed separately with this Court on January 18, 2024. 5 The deposition transcripts of Plaintiff’s experts and relevant exhibits were separately filed with the Court on January 19, 2024. 7 135022000.1 Motion, p. 5, ¶ 4. Royal Oak accordingly performed none of the work and provided none of the material for the construction of Emerald Lake. Instead, the work and materials in connection with the design, planning, construction, or inspection of the actual subcontractor construction work were provided by the design professionals and subcontractors. Affidavit of Colby Franks in Support of Defendant, Royal Oak Homes, LLC’s, Response and Memorandum of Law in Opposition to Plaintiff’s Motion for Partial Summary Judgment Regarding Royal Oak Homes, LLC’s Non- Delegable Duty (“Franks Aff.”), ¶¶ 11, 126; Deposition of Lucas Morris, 111:12-15; Deposition of Jeff Fellows, 77:9-20. Plaintiff ignores Royal Oak’s contracts with its subcontractors who performed the work that make clear the subcontractors were independent contractors responsible for the manner and means of accomplishing their respective work. See e.g., Franks Aff., Ex. B, ¶¶ 2, 4). Plaintiff seeks this Court’s imposition of a non-delegable duty on Royal Oak simply because of Royal Oak’s status as the general contractor at Emerald Lake. Motion, pp. 3, 10-18. 7 From this false premise, Plaintiff asserts that Royal Oak (1) is vicariously liable for the actions of its subcontractors and cannot apportion fault under Section 768.81 pursuant to Royal Oak’s Fifth Defense, and (2) is liable in some unspecified way under Section 554.83 for alleged code violations “committed” 6 The Franks Affidavit will be separately filed with this Court. 7Plaintiff asserts without support that Royal Oak served as the developer for Emerald Lake. Motion, p. 6, ¶ 7. That simply is not true. Franks Aff., ¶ 5. 8 135022000.1 by its subcontractors under Royal Oak’s Twenty-Third Defense. Id. at pp. 24-25. As we now show, Plaintiff’s Motion should be denied in its entirety. II. Argument and Supporting Memorandum of Law A. Plaintiff’s Tort Claim Fails as a Matter of Law. 1. Plaintiff’s Negligence and Vicarious Liability Claim is Barred by the Economic Loss Rule. Florida’s economic loss rule bars Plaintiff’s negligence and vicarious liability claim for the reasons set forth in Royal Oak’s Motion for Partial Summary Judgment as to Count I of Plaintiff’s Second Amended Complaint for Negligence and Vicarious Liability and Incorporated Memorandum of Law filed with this Court on January 19, 2024, and Royal Oak is entitled to summary judgment on this claim. 2. Plaintiff Failed to Show that Royal Oak Owed or Breached a Non-Delegable Duty in Tort under the Circumstances of Plaintiff’s Negligence and Vicarious Liability Claim. Plaintiff’s non-delegable duty argument is also flawed because Plaintiff relies on inapposite case law and equally inapplicable statutory provisions. Non-delegable duties in tort are extremely rare, inapplicable here, and Plaintiff nowhere informs the Court that Plaintiff is actually asking the Court to make new law. a. Plaintiff’s Inherently Dangerous Activity and Personal Injury Case Law Is Inapposite. The general rule is that a party is not liable for the acts of independent contractors it has hired. See e.g., Paul N. Howard Co., v. Affolder, Inc., 701 So. 2d. 9 135022000.1 402, 404 (Fla. 5th DCA 1997); E.J. Strickland Constr., Inc. v. Dep’t of Agriculture, 515 So. 2d 1331, 1335 (Fla. 5th DCA 1987); Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d 862, 863 (Fla. 3d DCA 1993). The First District recently reaffirmed this general rule in Garcia v. Southern Cleaning Service, Inc., 360 So. 3d 1209, 1210-11 (Fla. 1st DCA 2023), which involved a personal injury action against a general contractor retained to provide cleaning services to Win-Dixie Stores that was subcontracted out to an independent contractor. The First District affirmed summary judgment for the general contractor, applying the general rule that a general contractor is not liable for the acts of its independent contractor when their contract did not create a non-delegable duty. Id. Plaintiff makes no argument in its Motion that Royal Oak’s subcontract agreements with its subcontractors who performed the work at Emerald Lake creates a non-delegable duty because they do not; instead, each subcontractor expressly agrees it is an independent contractor responsible for the means and methods of construction, including providing all labor, materials, and supervision for “quality control” with a full-time supervisor “responsible for constantly monitoring the work quality of [its] crews.” Franks Aff., Ex. B, ¶¶ 2, 4(a), 27, Addendum 1, p. 2).8 8 Plaintiff attaches as Exhibit D to its Motion the deposition transcript of Lucas Morris, one of Royal Oak’s corporate representatives. Plaintiff does not file the transcript or any of the exhibits to that deposition with the Court in support of its Motion, including Composite Exhibit 76, which were all the subcontract agreements between Royal Oak and its vendors or subcontractors for Emerald Lake. Motion, Ex. D, 52:9-25, 53-54:11, 56:21-25, 57:1-15. 10 135022000.1 Plaintiff makes no mention of this well-established general rule in its Motion or the recent decision by the First District affirming it in Garcia. But that general rule is controlling here and requires Plaintiff’s Motion to be denied. Instead, Plaintiff relies on Florida cases that recognize exceptions to that general rule and bear no resemblance to this case. Motion, at pp. 10-24. They involve duties of care with respect to how construction is carried out to safeguard persons and the property of others potentially injured during the construction process, or they involve breaches of contractual duties. It bears emphasis that Plaintiff also relies on non-binding trial court and arbitration orders.9 Motion, pp. 13-14, Ex. G. Royal Oak can provide non-binding trial court orders that denied plaintiff motions for summary judgment on alleged non- delegable duties for construction defects and damages too. See Ravina at East Park Homeowners’ Ass’n., Inc. v. D.R. Horton, Inc., et. al., Case No. 2021-CA-008243 (Fla. Cir. Ct. Sept. 8, 2023) (denying plaintiff motion for partial summary judgment on general contractor non-delegable duty and its affirmative defenses that general contractor is not liable under Section 553.84 and can apportion liability under Section 768.81 because general contractor cannot be held jointly and severally liable in tort or under Section 553.84, cannot be vicariously liable for subcontractors’ acts, 9 Royal Oak also notes these trial court and arbitration orders are inadmissible as summary judgment evidence and should not be considered by this Court because these orders are not self- authenticating and were not the subject of a Request for Judicial Notice. Fla. Stat. § 90.202(6). 11 135022000.1 and owed no non-delegable duty in tort); Waterside Pointe Homeowners Ass’n., Inc. v. CalAtlantic Group, Inc., Case No. 2018-CA-002328 (Fla. Cir. Ct. Feb. 21, 2023) (denying plaintiff motion for partial summary judgment on general contractor’s responsibility for its subcontractors, finding general contractor had no non-delegable duty or derivative duty in tort); The Preserve at Eagle Lake Homeowners Ass’n., Inc. v. KB Home Orlando, LLC, Case No. 2016-CA-002674 (Fla. Cir. Ct. Dec. 11, 2019) (denying without prejudice plaintiff’s motion for partial summary judgment on KB Home’s non-delegable duty); Lake Washington Homeowners Ass’n.., Inc. v. D.R. Horton, Inc.-Jacksonville, Case. No. 2016-CA-20344 (Fla. Cir. Ct. Apr. 10, 2018) (finding no non-delegable duty under Section 553.84). It is also notable that Plaintiff cannot identify any authority for its proposition that Royal Oak’s mere status as a general contractor creates a non-delegable duty in tort under the circumstances of this case in Florida. Instead, Plaintiff selectively quotes from several cases in its Motion without informing the Court about the facts of the cases. Courts like this one decide cases based on the facts of each particular case. Plaintiff’s omission is telling, and in some cases misleading and wrong. For example, Plaintiff argues that Royal Oak hired subcontractors to construct the community and, “under the doctrine of respondeat superior,” Royal Oak as the general contractor is responsible for the subcontractors’ alleged negligence at Emerald Lake. Motion, p. 21. Plaintiff cites two cases, Post Tensioned Engineering 12 135022000.1 Corp. v. Fairway Plaza Assocs., 429 So. 2d 1212, 1214 (Fla. 3d DCA 1983) and Biscayne Roofing Co. v. Palmetto Fairway Condo. Ass’n, Inc., 418 So. 2d. 1109, 1110 (Fla. 3d DCA 1982). The first case, Post Tensioned, involved enforcement of an arbitration provision and does not explain the source of the respondeat superior obligation. The second case, Biscayne Roofing Co., involved enforcement of an indemnification provision and nowhere mentions the respondeat superior doctrine. Florida law is clear, however, that the doctrine of respondeat superior applies only to employer-employee relationships. As the Fifth District explained in Georgia- Pacific Corp. v. Charles, 479 So 2d 140, 142 (Fla. 5th DCA 1985): “It is by now well-established that an employer is vicariously liable for the torts of his employee (acting within the scope of his employment) under the doctrine of respondeat superior, but that an employer is not liable for torts caused by one considered the employer’s independent contractor.” (citations omitted) (emphasis added). Plaintiff admits in its undisputed facts that Royal Oak “contracted with independent contractors to” construct Emerald Lake and has not provided the Court with any evidence to the contrary. Motion, p. 5, ¶ 4. Further, Plaintiff frequently cites and quotes from Bialkowicz v. Pan American Condo. No. 3, Inc., which involved pile-driving (an inherently dangerous activity) and other actions carried on by independent contractors at a construction site, which damaged adjacent property. 215 So. 2d 767, 768 (Fla. 3d DCA 1968). In 13 135022000.1 that context, the court referred to a duty of care “with respect to the property of others” which might be injured by how the activity is carried out. Id. at 771. Thus, Bialkowicz stands for the unremarkable proposition that a non-delegable duty has been recognized under Florida law for inherently dangerous activities. Similarly, Atl. Coast Dev. Corp. v. Napoleon Steel Contractors, Inc., 385 So. 2d 676 (Fla. 3d DCA 1980), quoted in Plaintiff’s Motion at p. 11, involved a construction site accident arising from inherently dangerous activities. Plaintiff also relies heavily on Mastandrea v. J. Mann, Inc., 128 So. 2d 146 (Fla. 3d DCA 1961), which involved injuries caused to third parties by the way construction was carried out. Motion, p. 11. In that case, blocks were stacked improperly and fell over, causing personal injury. Id. at 147. Plaintiff quotes language from Mastandrea that refers generally to “a duty imposed by Statute or Ordinance, such as the building Code,” but ignores the immediately following and more complete statement of the principle involved: where a statute “requires one to do a certain thing or to take certain precautions for the protection of persons on or near his property, he cannot delegate such a duty . . . .” Id. at 148 (emphasis supplied). That is not this case. ABD Constr. Co. v. Diaz, 712 So. 2d 1146 (Fla. 3d DCA 1998), cited in the Motion at page 12, was also a personal injury case. There, the court held that a construction company that did not obtain the permit for the work that created the dangerous condition, did not have a contract for that work, and did not create or 14 135022000.1 know about the dangerous condition in question, could not be held directly or vicariously liable for the injury sustained by an individual as a result. Id. at 1147- 48. The court commented about a hypothetical scenario in which the defendant itself obtained the permit for the construction work at issue. Id. at 1148. But this was pure dictum, and the hypothetical scenario itself also involved personal injuries resulting from the manner in which construction was carried out, as in Mastandrea. Curiously, at pages 11 and 15 of the Motion, Plaintiff cites CC-Aventura, Inc. v. Weitz Co., LLC, 2009 WL 2136527, *1 (S.D. Fla. July 13, 2009), which addressed a motion to dismiss filed by a fourth-party defendant against a fourth-party plaintiff. The fourth-party case included claims for common law indemnification and contribution. Id. In its analysis of the downstream common law indemnification claim, the district court noted that: “Under Florida law, a general contractor’s duty of care to a property owner is a non-delegable duty subjecting the general contractor to liability for a subcontractor’s negligence. See Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959).” Id., at *2. Given the district court’s reliance on Mills v. Krauss, and the existence of a contractual relationship between the general contractor and the property owner, this statement was made in the context of the recognized non- delegable duty in contract. It does not apply to Plaintiff’s tort claim. Indeed, several trial court orders Plaintiff cites in or attaches to the Motion, and Plaintiff itself, relies on Mills, illustrating Plaintiff’s confusion of contractual 15 135022000.1 duties with tort duties. See, e.g., Motion, p. 10. The Mills court ruled that a contractor could not, by hiring independent contractors, avoid liability for breach of an express or implied duty to use due care in carrying out the repairs it contracted to undertake. 114 So. 2d at 820-21. But this is a contractual duty, not a tort duty. As the court noted, the “relationship created by the general contract” gave rise to a “contractual responsibility of the general contractor” that could not be delegated. Id. at 820. This makes sense. It would be a “strange doctrine” to hold that a contractor could “enter into a contract with [another] to renovate and repair the premises . . . in a skillful and workmanlike manner and then, without the consent of [the other] employ an irresponsible party to do the work and then avoid responsibility by seeking refuge . . . behind the men they had employed and who caused the accident from which the damages resulted.” Id. at 821. Other cases confirm that Mills is based on contractual liability. See e.g., CISU of Fla., Inc. v. Porter, 457 So. 2d 1118, 1119 (Fla. 1st DCA 1984); Campbell v. Bellman, 293 So. 2d 795, 796 (Fla. 3d DCA 1974). Plaintiff has not brought a contract claim here. Mills, therefore, is irrelevant to Plaintiff’s Count I, which asserts a common law negligence and vicarious liability claim. As such, Mills cannot help Plaintiff obtain summary judgment on Count I. This is likewise true for the other contractual cases cited by Plaintiff. Plaintiff relies on People’s Trust Ins. Co. v. Lillian Lamolli, 352 So. 3d 890, 895 (Fla. 4th DCA 2022) throughout its Motion for the proposition that even if a general 16 135022000.1 contractor used a subcontractor, the general contractor “would remain ultimately responsible for the subcontractor’s work.” See, e.g., Motion, pp. 11, 14. But Plaintiff fails to inform this Court this ruling resulted from an insurance policy agreement that required the use of a general contractor for repairs, which by law had to be performed by a licensed roofer and hence a subcontractor. Lillian, 352 So. 3d at 892. The case turned on what the contractual language in the insurance agreement required. Id. at 894-95. See also City of Coral Gables v. Prats, 502 So. 2d 969, 971 (Fla. 3d DCA 1987) (noting “well-settled” rule that employer is not liable for independent contractor’s negligence, but finding exception existed because the City who was sued and retained the subcontractor expressly agreed to assume the duty of maintaining the streets to protect the public in an agreement with the State). Perhaps realizing Plaintiff needed to find its non-delegable duty in a Royal Oak contract other than Royal Oak’s subcontracts with its subcontractors, Plaintiff next argues the building permit application signed by Royal Oak’s qualifier on its behalf is a “contract with Osceola County.” Motion, p. 32. In support of this argument, Plaintiff cites City of Coral Gables, which as noted above, involved a “Memorandum of Agreement” between the City and the State whereby the City agreed to maintain the streets. The Court did not rely on a permit application for the 17 135022000.1 contractual, non-delegable duty. 10 Plaintiff offers no authority that a building permit is a contract between the general contractor and the building department. Plaintiff repeatedly relies on the general contractor’s certification in the building permit application that “all work will be performed to meet all provisions of laws and ordinances regulating construction,” but the application nowhere requires the general contractor to fulfill that certification in any particular way. Motion, p. 7. How the general contractor fulfills its certification is left to the discretion of the general contractor. Franks Aff., ¶ 7. At Emerald Lake, Royal Oak hired expert subcontractors in the required construction fields for construction of the townhomes, contractually required the subcontractors to construct the townhomes to code and to supervise their work with a qualified, expert superintendent, and provided levels of supervision above the subcontractor consistent with industry standards for residential construction in Florida. Franks Aff., ¶¶ 8, 9, 11-14; Ex. B, ¶¶ 2, 3, Schedule B-1, Addendum 1, p. 2. Plaintiff cites no Florida case or other authority that holds what Royal Oak did to meet its building permit application certifications at Emerald Lake was improper in any way. Indeed, there is no dispute here that the Building Department, after receiving these building permit applications, issued building permits, inspected the construction, and issued certificates of 10Plaintiff also cites A.R. Moyer, Inc. v. Graham, 285 So. 2d 397, 401 (Fla. 1973), which involved an architect’s common law duty to the general contractor based on the architect’s supervision of the construction under its contract with the owner and is the basis for a professional negligence claim against architects. It nowhere relied on a building permit application. Id. 18 135022000.1 occupancy for each Emerald Lake townhome. (Franks Dep., 29:16-25, 30:1-10, 69:7-22, 74:4-18, 78:20-25, 79:1-13, 163:10-25, Exs. 52, 54). Finally, Plaintiff’s reliance on Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 875 (Fla. 2d DCA 2010) is misplaced. There, the Second District applied a longstanding non-delegable duty established by the legislature as to premises owners. Id. at 876 (Section 768.0710 “imposes a duty of reasonable care on persons in possession or control of business premises to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises. This statutory duty is nondelegable.”). Section 768.0710 has long been recognized to create a non-delegable duty to protect the physical safety of business invitees. There is no alleged physical harm to Plaintiff or any of the townhome owners from the alleged defects, and the alleged construction duties in this case have not been recognized, by statute or otherwise as being non-delegable in nature. In sum, Plaintiff offers the Court no support for its argument that Royal Oak had a non-delegable duty to protect Plaintiff from economic losses for allegedly required repairs for construction defects because it was the general contractor at Emerald Lake. The undisputed evidence is that this work was performed by Royal Oak’s subcontractors who were independent contractors. Plaintiff does not cite the general rule that a party is not liable for the acts of its independent contractors, much less offer any authority that, under these circumstances, the general rule does not 19 135022000.1 apply. See e.g., Garcia, 2023 WL 3335415 at *3; E.J. Strickland Constr., Inc., 515 So. 2d at 1335; Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d at 863. b. Plaintiff Cannot Manufacture a Non-Delegable Duty by Reference to Chapter 489 and Chapter 553.79. No doubt recognizing the inapplicability of its cited case law, Plaintiff tries to bolster its position by citing to carefully selected provisions of Chapters 489 and 553, Florida Statutes. This argument is even less persuasive. Plaintiff first points to Section 553.79(10), which simply states the general contractor to whom the building permit is issued shall be responsible for supervision, direction, management, and control of the construction activities. Fla. Stat. § 553.79(10). Nothing in this statute tells the general contractor how to supervise, direct, manage and control construction activities.11 The statute also does not impose a non-delegable duty on the general contractor or reference any duty owed by the general contractor. This is because supervision and other training or personnel matters are specifically excluded from the Florida Building Code by Section 553.73(2), which is not cited by Plaintiff. 12 The Florida Legislature left these decisions to the general contractor. 11 A description of how Royal Oak supervised, directed, managed, and controlled the construction activities at Emerald Lake is outlined, above, at page 18 of this Response. See also Franks Aff., ¶¶ 8, 9, 11-14; Ex. B, ¶¶ 2, 3, Schedule B-1, Addendum 1, p. 2. 12 Section 553.73(2) provides: “Provisions relating to the personnel, supervision, or training of personnel, or any other professional qualification requirements relating to contractors or their workforce may not be included within the Florida Building Code.” Fla. Stat. § 553.73(2). 20 135022000.1 Plaintiff also points to Section 489.113(2), which places subcontractors who are not certified or licensed under the scope of the supervising contractor’s license who is responsible for the work. Fla. Stat. § 489.113(2). Again, this provision nowhere specifies how the general contractor must fulfill this responsibility, and Royal Oak fulfilled it at Emerald Lake consistent with industry standards. Franks Aff., ¶¶ 8, 9, 11-14, Ex. B, ¶¶ 2, 3, Schedule B-1, Addendum 1, p. 2. Plaintiff also relies on Section 489.105(4) and Gatwood v. McGee, 475 So. 2d 720 (Fla. 1st DCA 1985)13 for the proposition that negligent performance of the qualifying agent’s statutorily-imposed duty of supervision may support a claim for damages because the “qualifying agent’s duty of supervision is nondelegable.” Motion, pp. 12-13. Plaintiff apparently hopes the Court will conclude that Royal Oak, a corporate entity, has a non-delegable duty applicable to Plaintiff’s claims. Plaintiff quotes Gatwood for the proposition that Chapter 489 supports its argument that Royal Oak owes a statutory non-delegable duty as the licensed general contractor to supervise construction and, therefore, is liable for the alleged defects in the construction work of its subcontractors at Emerald Lake. However, the Florida Supreme Court in Murthy v. N. Sinha Corp., 644 So. 2d 983, 986-87 (Fla. 1994), expressly overruled Gatwood because the lower court “conclude[d] that the 13In citing Gatwood, Plaintiff contends the case was “overruled on other grounds” than those relied upon in its Motion. That assertion is false. 21 135022000.1 negligent performance of the qualifying agent’s statutorily-imposed duty of supervision may support a cause of action,” as Plaintiff quotes in its Motion. Thus, contrary to Plaintiff’s contention, the Florida Supreme Court overruled Gatwood precisely because Chapter 489 does not support a cause of action for damages sustained by alleged defects in construction performed by independent contractors. In addition to Plaintiff’s improper reliance on Gatwood, there are at least four flaws in this argument. First, the cited Chapter 489 provisions impose duties of supervision on individual contractors, not the sort of absolute liability Plaintiff seeks to impose here, and Plaintiff has submitted no evidence regarding the nature or quality of supervision by anyone in connection with construction of Emerald Lake or what the standard of care with respect to such supervision might be. Second, the cited statute imposes duties of supervision on individual licensed contractors. If a corporate entity wishes to engage in the business of construction contracting, it must associate with an individual contractor as its qualifying agent, but it is the individual contractor who must obtain any necessary permits. See Lake Eola Builders, LLC v. Metro. at Lake Eola, 416 F. Supp. 2d 1316, 1318 (M.D. Fla. 2006); see also Fla. Stat. § 489.105(4), (5) (defining primary and secondary qualifying agent as, among other things, the contractor responsible for construction “for which he or she” has obtained the permit). As Plaintiff’s own citation 22 135022000.1 demonstrates, it is the individual qualifying agent who is under a duty to supervise construction and not willfully disregard and violate local building codes. See also, Alles v. DPR, 423 So. 2d 624, 626 (Fla. 5th DCA 1982) (qualifying agent had duty of supervision over construction); Hunt v. DPR, 444 So. 2d 997, 999 (Fla. 1st DCA 1994). Chapter 489 does not impose the “non-delegable duty” asserted by Plaintiff on corporate entities with whom licensed contractors are associated. Third, Chapter 489 does not make general contractors responsible for – much less civilly liable for – any and all acts of subcontractors. General contractors cannot even themselves perform or supervise some of the work typically involved in construction, such as roofing work, unless they are licensed in those specialties. See Fla. Stat. § 489.105(3) (definitions of “general contractor” and “specialty contractor”); § 489.113(2) (unlicensed persons may work under supervision of general contractor unless work requires specialty license); § 489.113(3) (with some exceptions, general contractor must subcontract out designated specialty work). Given that, it would make no sense for the statute to give rise to civil liability for all work done by those subcontractors, as Plaintiff argues it does. Fourth, Chapter 489 is a regulatory and administrative statute governing the construction industry. It does not provide for, and cannot supply a basis for, civil liability. The Florida Supreme Court’s decision in Murthy, noted above, squarely held there is no private cause of action under Chapter 489. 644 So. 2d at 987. Yet, 23 135022000.1 that is what Plaintiff’s argument seeks to impose under the guise of “non-delegable duty.” Plaintiff’s position is therefore contrary to controlling law. Moreover, because Chapter 489 imposes responsibility for supervising unlicensed individuals only on the individual licensed contractor, its provisions cannot be used to create duties, much less non-delegable duties, owed by Royal Oak. If that feat could be accomplished, which it cannot, then Plaintiff is logically saddled with the controlling holding of Murthy that there is no private cause of action. Plaintiff cites no authority holding that a corporation may be held civilly liable when its individual qualifying agent cannot be held liable. In addition, while Murthy involved a suit against an individual, the Court’s reasoning was not limited to that situation. It was instead based on the absence of any legislative intent to create a private cause of action. Id. The Florida Legislature subsequently clarified this point in Section 489.131(12), which provides, without limitation, that “unless specifically, provided, the provisions of this part shall not be construed to create a civil cause of action.” Fla. Stat. § 489.131(12). Finally, Plaintiff’s Chapter 489 argument posits a non-delegable duty or responsibility to supervise the construction activities on projects for which the contractor obtains a building permit. But Chapter 489 does not provide how supervision must be carried out, and there is no requirement that a qualifying agent personally provide direct, continuous, on-site supervision of construction for each 24 135022000.1 structure for which he or she is responsible. 14 Plaintiff cites no evidence showing Royal Oak’s supervision practices violated any law or applicable standard of care. Royal Oak appropriately supervised construction. As Mr. Franks explains, Royal Oak hired subcontractors with expertise in the different areas of construction, who contractually represented they were experts in their respective fields. Franks Aff., ¶¶ 10-12, Ex. B. Royal Oak required the subcontractors to have experienced supervisors supervise their work to ensure the work was installed per the plans and specifications and the Florida Building Code. Id., Ex. B, Schedule B-1, Addendum 1, p. 2. Royal Oak had in place an organizational structure set up to supervise construction. Id. at ¶¶ 12-14. This structure included the subcontractors’ supervisors, Royal Oak builders or superintendents, who were on site every day, up to area construction managers, and the qualifier and Vice President of Operations, who regularly visited Emerald Lake during construction. Id. Royal Oak’s multi-level supervisory practices are typical for residential construction in Florida. Id. Royal Oak’s supervisory practices are also consistent with recognized industry supervisory practices by applicable regulatory authorities under Chapter 489. See e.g., DBPR, CILB v. Edwin A. Henry, 2000 WL 248376, at *3, 14 (Fla. Div. Admin. Hrgs., Jan, 19, 2000) (Respondent “adequately supervised the work on the 14 See Fla. Stat. § 489.117(4)(c) (no direct contract is required between general contractor and person performing specialty contracting services, and containing no requirement of “direct,” “on- site,” or “continuous” supervision); cf. Fla. Stat. §§ 489.113(2), 489.103(7), 489.5185(2). 25 135022000.1 job sites in question through…qualified construction supervisors”; this “organizational structure and span of management are within the norms accepted in the construction industry”); DBPR v. David J. Quigley, Jr., 1988 WL 617856, at * 6 (Fla. Div. Admin. Hrgs. Sept. 14, 1988) (adopted by Agency Final Order, July 14, 1989) (nothing required qualifying agent to “personally supervise personally each job…he may assign supervisory duties to other responsible persons.”); O’Connor v. DBPR, CILB, 566 So. 2d 549, 553 (Fla. 2d DCA 1990), reversing, DOAH Case No. 89-0186 and ensuing Order of CILB (licensed air conditioning contractor was not required “to inspect every home repair job done by every technician”); DBPR, CILB v. Robert L. Fountain, 1990 WL 749399, * 11 (Fla. Div. Admin. Hrgs. Oct. 24, 1990) (“It is common practice by contractors to have more than one job proceeding at the same time, such that their supervisory time has to be divided between jobs.”) (adopted by Agency Final Order on April 25, 1991). In short, Plaintiff’s Chapter 489 argument relies on an inapposite statutory provision and amounts to an end-run around the controlling decision in Murthy and the express and clear statutory provision that precludes any claim based upon the statutory requirements under Chapter 489. It must be rejected for that reason alone. Plaintiff’s request for a summary judgment ruling that Royal Oak is directly liable for any construction defects at Emerald Lake based on a non-delegable duty to supervise also fails in light of Mr. Franks’ testimony that Royal Oak provided a 26 135022000.1 structure for supervision of the construction at Emerald Lake. Plaintiff has failed to submit any evidence showing that, even if a duty to supervise could be imposed on Royal Oak under Chapter 489, which is not the case, Royal Oak breached that duty. B. There is No Statutory Non-Delegable Duty under Plaintiff’s Section 553.84 Claim. As to Count II, asserting a cause of action under Section 553.84, Plaintiff cites no case applying a “non-delegable duty” to the cause of action created by that statute. This is because the plain language of the statute provides liability only against the “person or party who committed the violation.” Fla. Stat. § 553.84 (emphasis added). Section 553.84 further provides that a contractor who obtains a permit is not liable for economic damage – the only damage sought by Plaintiff here – unless it “knew or should have known” of the building code violation. Id. The Florida Legislature firmly grounds any claim against a general contractor under the statute on that contractor’s own negligence, not on a non-delegable duty. This classic articulation of a negligence standard in Section 553.84 means apportionment also applies under Section 768.81 to the statutory claim. Bre/Cocoa Beach Owner, LLC v. Bolyn Companies, Inc., 2012 WL 12905849, *8 (M.D. Fla. Nov. 30, 2012). In short, the concept of non-delegable duty has no application under Section 553.84. See Lake Washington Homeowners Ass’n, No. 2016-CA-20344 (denying plaintiff association’s motion for summary judgment on D.R. Horton’s liability for construction defects and holding that D.R. Horton “does not have a non-delegable 27 135022000.1 duty in relation to the claims brought by the Association under Florida Statute 553.84.”). For this reason, Plaintiff’s Motion should be denied with respect to Plaintiff’s Count II for alleged violations of Section 553.84, Florida Statutes. III. CONCLUSION For all the foregoing reasons, Plaintiff’s Motion should be denied. Respectfully submitted, /s/ James Michael Walls James Michael Walls Florida Bar No. 706272 Luis Prats Florida Bar No. 329096 Robin H. Leavengood Florida Bar No. 0547751 Fiona E. Foley Florida Bar No. 118668 Alexa M. Nordman Florida Bar No. 1025863 CARLTON FIELDS, P.A. 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 mwalls@carltonfields.com lprats@carltonfields.com rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com ffoley@carltonfields.com nbonilla@carltonfields.com krick@carltonfields.com fgonzalez@carltonfields.com Attorneys for Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC 28 135022000.1 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 21, 2024, the foregoing was electronically filed with the Clerk of the Court by using the E-filing Portal, which will electronically serve this document to all registered counsel of record. /s/ James Michael Walls 29 135022000.1 EXHIBIT A Filing # 100159462 E-Filed 12/11/2019 02:48:50 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, ~N AND FOR SEMINOLE COUNTY, FLORIDA THE PRESERVE AT EAGLE LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, on behalf of itself and as a representative of its members, Case No.: 2016-CA-0026