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Filing # 171463113 E-Filed 04/20/2023 04:20:25 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
CIVIL DIVISION
VILLAS AT EMERALD LAKE HOMEOWNERS
ASSOCIATION, INC., a Florida not for profit
corporation,
Plaintiff,
Case No.: 2020-CA-002942
v.
ROYAL OAK HOMES, LLC, a Florida limited
DEFENDANT WEINTRAUB’S
liability company; ADVANCED WRAPPING AND
ANSWER AND DEFENSES TO
CONCRETE SOLUTIONS OF CENTRAL
PLAINTIFF’S SECOND
FLORIDA, INC., a Florida corporation; DON
AMENDED COMPLAINT
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; 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;
Defendants.
/
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;
Crossclaim Defendants.
/
DEFENDANT WEINTRAUB’S ANSWER AND DEFENSES TO PLAINTIFF’S
SECOND AMENDED COMPLAINT
Defendant / Crossclaim Defendant, WEINTRAUB INSPECTIONS & FORENSIC, INC.
n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC. (“Weintraub”), by and through
undersigned counsel, hereby files its answer and defenses to Plaintiff, VILLAS AT EMERALD
LAKE HOMEOWNERS ASSOCIATION, INC’s (“Plaintiff”), Second Amended Compliant and
Demand for Jury Trial, and states as follows:
ANSWER TO SECOND AMENDED COMPLAINT
Nature of the Case
1. The Second Amended Complaint speaks for itself; otherwise denied.
Jurisdiction and Venue
2. Admitted for jurisdictional purposes only; otherwise denied.
3. Admitted.
4. Without knowledge, therefore denied.
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5. Admitted that Weintraub has conducted business in Osceola County, Florida;
otherwise denied.
6. Admitted for jurisdictional purposes only; otherwise denied.
7. Denied.
8. Without knowledge, therefore denied.
Parties
9. Without knowledge, therefore denied.
10. Without knowledge, therefore denied.
11. Without knowledge, therefore denied.
12. Without knowledge, therefore denied.
13. Without knowledge, therefore denied.
14. Without knowledge, therefore denied.
15. Without knowledge, therefore denied.
16. Without knowledge, therefore denied.
17. Without knowledge, therefore denied.
18. Without knowledge, therefore denied.
19. Without knowledge, therefore denied.
20. Without knowledge, therefore denied.
21. Without knowledge, therefore denied.
22. Without knowledge, therefore denied.
23. Without knowledge, therefore denied.
24. Without knowledge, therefore denied.
25. Without knowledge, therefore denied.
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26. Without knowledge, therefore denied.
27. Without knowledge, therefore denied.
28. Without knowledge, therefore denied.
29. Without knowledge, therefore denied.
30. Without knowledge, therefore denied.
31. Without knowledge, therefore denied.
32. Without knowledge, therefore denied.
33. Without knowledge, therefore denied.
34. Admitted.
35. Admitted that Weintraub was hired by Royal Oak Homes, LLC to perform a limited
scope of non-compulsory inspections for some of the townhome units at the Project; otherwise,
denied.
36. Without knowledge, therefore denied.
37. Without knowledge, therefore denied.
38. Without knowledge, therefore denied.
39. Without knowledge, therefore denied.
Facts Common to All Claims for Relief
40. Without knowledge, therefore denied.
41. Without knowledge, therefore denied.
42. Without knowledge, therefore denied.
43. Without knowledge, therefore denied.
44. Admitted.
45. Admitted.
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46. Without knowledge, therefore denied.
47. The Second Amended Complaint speaks for itself; otherwise, denied.
48. Denied.
49. Denied.
50. Denied (including all subparts).
51. Denied (including all subparts).
52. Denied (including all subparts).
53. Denied (including all subparts).
54. Denied (including all subparts).
55. Denied (including all subparts).
56. Denied (including all subparts).
57. Denied (including all subparts).
58. Denied (including all subparts).
59. Denied (including all subparts).
60. Denied (including all subparts).
61. Denied.
62. Denied.
63. Denied (including all subparts).
64. Denied.
65. Admitted that, on or about August 20, 2020, Plaintiff sent correspondence to
Weintraub which speaks for itself; otherwise denied.
66. Admitted that, on or about August 20, 2020, Plaintiff sent correspondence to
Weintraub which speaks for itself; otherwise denied.
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Counts 1- 25
These counts, including the allegations made in paragraphs 67 through 252, are not directed
to Weintraub and therefore do not require a response from Weintraub. To the extent any of the
allegations contained in these counts are directed to Weintraub, such allegations are denied.
Count 26
This count, including the allegations made in paragraphs 253 through 262, has been
dismissed and stricken from the Second Amended Complaint pursuant to the Court’s Order
Granting Weintraub’s Amended Motion to Dismiss Count 26 of Plaintiff’s Second Amended
Complaint (the “Order”), dated February 2, 2023, and therefore does not require a response from
Weintraub.
Count 27
263. Weintraub incorporates its responses to paragraphs 1 through 66 above as if fully
set forth herein.
264. Admitted that Weintraub was hired by Royal Oak Homes, LLC to perform a limited
scope of non-compulsory inspections for some of the townhome units at the Project; otherwise,
denied.
265. Denied.
266. Denied.
267. Denied.
268. Denied.
269. Denied.
Counts 28 - 29
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These counts, including the allegations made in paragraphs 270 through 285, are not
directed to Weintraub and therefore do not require a response from Weintraub. To the extent any
of the allegations contained in these counts are directed to Weintraub, such allegations are denied.
ANY AND ALL OTHER ALLEGATIONS NOT EXPRESSLY ADMITTED HEREIN
ARE DENIED.
DEFENSES
First Defense
Plaintiff’s claims are barred, in whole or in part, by the applicable statute of limitations, as
Plaintiff failed to commence this action against Weintraub within the applicable statutory period,
including, without limitation, by failing to commence this action within four years of the date of
actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of
abandonment of construction if not completed, or the date of completion of the contract or
termination of the contract between the professional engineer, registered architect, or licensed
contractor and his or her employer, whichever date is latest, as it relates to each building at the
Subject Property. To the extent that any of Plaintiff’s claims are based on allegations of latent
defects, Plaintiff failed to commence this action within four years of when Plaintiff discovered the
defects or should have discovered the defects with the exercise of due diligence.
Second Defense
Plaintiff’s claims are barred, in whole or in part, by the applicable statute of repose, as
Plaintiff failed to commence this action against Weintraub within the applicable repose period,
including, without limitation, by failing to commence this action within ten years of the date of
actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of
abandonment of construction if not completed, or the date of completion of the contract or
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termination of the contract between the professional engineer, registered architect, or licensed
contractor and his or her employer, whichever date is latest, as it relates to each building at the
Subject Property.
Third Defense
The damages alleged by Plaintiff were solely or partially caused by the negligence or
breaches of other parties, entities, or non-parties, including Royal Oak Homes, LLC, and the
entities that actually performed the work, over whom Weintraub had no control and for whose
control Weintraub is not responsible. Therefore, liability should be apportioned among any known
responsible parties, any unknown responsible parties, and any responsible non-parties, pursuant to
section 768.81, Florida Statutes, and Fabre v. Marin, 623 So. 2d 1189 (Fla. 1993). Weintraub
currently identifies Royal Oak Homes, LLC, the design professionals, subcontractors, suppliers,
unit owners, and any other persons or entities performing repairs or maintenance at the Subject
Property, as responsible parties and non-parties, including, without limitation, Royal Oak Homes,
LLC, Advanced Wrapping and Concrete Solutions Of Central Florida, Inc., Don King’s Concrete,
Inc., Hugh MacDonald Construction, Inc., Imperial Building Corporation, TGK Stucco, Inc.,
Weathermaster Building Products, Inc., The Dimillo Group, LLC, Wolf’s Irrigation &
Landscaping, Inc., Summerpark Homes, Inc., Brown + Company Architecture, Inc., and Expert
Painting & Pressure Washing, Inc. Weintraub reserves the right to amend this defense prior to trial
if any other responsible parties or non-parties are identified through investigation or discovery.
Fourth Defense
Plaintiff has failed to mitigate its damages and is not entitled to any damages that could
have been mitigated, including, without limitation, any damages that could have been mitigated
by adequately maintaining the Subject Property and repairing normal wear and tear items.
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Fifth Defense
Plaintiff’s claims are barred by the doctrine espoused under United States v. Spearin, 248
U.S. 132 (1918) and its progeny because Weintraub complied with the express and applicable
provisions of any agreement between the parties and properly performed its inspections in reliance
on the design documents.
Sixth Defense
Weintraub is entitled to a setoff of any recovery against it to the extent of the value of all
benefits, settlements, or judgments paid or payable to Plaintiff. See Grobman v. Posey, 863 So.2d
1230, 1237 (Fla. 4th DCA 2003).
Seventh Defense
Weintraub’s inspections were performed in accordance with the standard of care used by
similar professionals in the community under similar circumstances, and to the extent that
Weintraub observed any deficiencies at the Project, Weintraub notified Royal Oak Homes, LLC
of the existence of such deficiencies through the inspection reports Weintraub provided to Royal
Oak Homes, LLC.
Eighth Defense
Plaintiff’s claims are barred because the alleged defects were patent and obvious to Plaintiff
or others under its agency or control.
Ninth Defense
The damages alleged by Plaintiff resulted from improper maintenance and not by improper
acts and omissions by Weintraub.
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Tenth Defense
Plaintiff’s claims are barred because the damages sought are speculative, remote,
contingent, uncertain, and/or not reasonably ascertainable.
Eleventh Defense
Plaintiff’s alleged damages were proximately and legally caused by Plaintiff’s own
negligence, recklessness, and carelessness, by virtue of its action or inaction in failing to maintain
the Subject Property, and such negligence, recklessness, and carelessness bars or reduces pro rata
any recovery otherwise available to Plaintiff pursuant to section 768.81, Florida Statutes.
Twelfth Defense
Plaintiff is improperly attempting to assert damages and prove the existence of construction
defects based on the doctrine of extrapolation and by way of generalized proof.
Thirteenth Defense
Plaintiff is improperly attempting to recover damages that constitute betterment, including
the cost to purchase and install building components of a higher quality than what was originally
installed, and Plaintiff is not entitled to recover more than what was agreed to be furnished under
the contracts governing the construction of the Subject Property. See Grossman v. Sea Air Towers,
Ltd., 513 So. 2d 686 (Fla. 3d DCA 1987).
Fourteenth Defense
Plaintiff has committed spoliation of evidence that is the subject of Plaintiff’s claims by
permitting inspectors, contractors, homeowners, tenants, and/or occupants to alter and/or destroy
the materials and real property improvements that are at issue in this action without notification to
Weintraub.
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Fifteenth Defense
Plaintiff’s alleged damages are barred or diminished by the Economic Waste Doctrine
because Plaintiff has adopted a more expensive design for the repair of the alleged construction
defects. Plaintiff’s recovery, if any, must be limited to what would have been the reasonable cost
of repair according to the original design. Grossman Holdings, Ltd. v. Hourihan, 414 So.2d 1037
(Fla. 1982); Grossman v. Sea Air Towers, Ltd., 513 So. 2d 686, 688 (Fla. 3d DCA 1987); Temple
Beth Sholom & Jewish Ctr., Inc. v. Thyne Const. Corp., 399 So. 2d 525, 525 (Fla. 2d DCA 1981).
Sixteenth Defense
Plaintiff lacks standing to sue for the alleged construction defects and damages because
such alleged construction defects and damages fall outside of the common interests of the Subject
Property.
Seventeenth Defense
The Subject Property sustained damages from various hurricanes and named storms, and
such damages were caused by an Act of God over which Weintraub had no control and for which
Weintraub is not responsible.
Eighteenth Defense
Plaintiff has failed to state a cause of action against Weintraub for professional negligence
because the Second Amended Complaint fails to identify the source of the duty Weintraub is
alleged to have owed Plaintiff, and the Second Amended Complaint otherwise fails to allege
sufficient facts regarding the scope of Weintraub’s involvement at the Subject Property,
Weintraub’s alleged negligent acts or omissions, and what damage Plaintiff has suffered as a result.
Nineteenth Defense
Plaintiff’s claim against Weintraub for professional negligence is barred because
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Weintraub owed no duty to Plaintiff.
Twentieth Defense
Plaintiff’s claim against Weintraub for professional negligence is barred by the economic
loss rule because the only damages Plaintiff has allegedly suffered are to the Subject Property
itself, Plaintiff has not suffered any personal injury or damage to other property, and Plaintiff’s
alleged damages are purely economic.
Twenty-first Defense
The inspection services Weintraub provided during the construction of the Subject Property
were audited, inspected, approved, accepted (expressly or impliedly) and paid for by the
contractor, architect, owner, developer, local jurisdiction, and/or the agents, employees,
representatives, assignees, subrogors, privies, or predecessor/successor in interest thereof, and
Plaintiff’s claims are therefore barred, in whole or in part, by the doctrine espoused under Slavin
v. Kay, 108 So. 2d 462 (Fla. 1959), and its progeny, and the related principles of release, estoppel,
waiver, and merger.
Twenty-second Defense
Plaintiff is improperly seeking special damages which it is not permitted to recover against
Weintraub because Weintraub had no actual or constructive notice that such damages should have
been contemplated as a proximate result of the allegedly deficient inspections. See Florida E.
Coast Ry. Co. v. Peters, 83 So. 559, 564 (Fla. 1919).
Twenty-third Defense
Royal Oak Homes, LLC retained Weintraub to perform limited, non-compulsory
inspections at the Project. Weintraub only inspected the building components and buildings Royal
Oak Homes, LLC directed it to inspect, and Weintraub owed no duty or obligation to any party to
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inspect any other building components. The proper installation of the Project’s exterior stucco,
building envelope system, and other building components were the responsibility of Royal Oak
Homes, LLC and others, not Weintraub.
General Response and Reservation
Weintraub has not knowingly waived any applicable defenses and reserves the right to
assert and rely on such other applicable defenses as may become available or apparent during the
course of discovery. Weintraub reserves the right to amend its answer or defenses or to withdraw
defenses that Weintraub determines to be inapplicable during the course of subsequent discovery.
Weintraub does not assume the burden of proof of the defenses listed above in circumstances in
which the applicable law provides otherwise.
WHEREFORE, Defendant, Weintraub Inspections & Forensic, Inc. n/k/a Weintraub
Engineering and Inspections, Inc., respectfully requests that this Court: (a) enter judgment in favor
of Weintraub with respect to all counts against Weintraub; (b) award Weintraub its reasonable
costs; and (c) award Weintraub such other and further relief as this Court deems just and proper.
Respectfully submitted,
/s/ Andrew E. Holway
Rocco Cafaro, Esquire
Florida Bar No. 0507121
Andrew E. Holway, Esquire
Florida Bar No. 098559
Hill Ward Henderson
101 E. Kennedy Blvd., Suite 3700
Tampa, Florida 33602
Telephone: 813-221-3900
Fax: 813-221-2900
rocco.cafaro@hwhlaw.com
andrew.holway@hwhlaw.com
tracy.coale@hwhlaw.com
kathy.wernsing@hwhlaw.com
derrick.calandra@hwhlaw.com
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Attorneys for Weintraub Inspections &
Forensic, Inc. n/k/a Weintraub Engineering
and Inspections, Inc.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-filed with
the Osceola County Clerk of the Court and a copy furnished to all parties via electronic mail from
the automatic ePortal System of Florida via the address of eservice@myflcourtaccess.com on April
20, 2023.
/s/ Andrew E. Holway
Attorney
18099905 14
Preview
Filing # 171463113 E-Filed 04/20/2023 04:20:25 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA CIVIL DIVISION VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, Case No.: 2020-CA-002942 v. ROYAL OAK HOMES, LLC, a Florida limited DEFENDANT WEINTRAUB’S liability company; ADVANCED WRAPPING AND ANSWER AND DEFENSES TO CONCRETE SOLUTIONS OF CENTRAL PLAINTIFF’S SECOND FLORIDA, INC., a Florida corporation; DON AMENDED COMPLAINT 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; 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; Defendants. / 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; Crossclaim Defendants. / DEFENDANT WEINTRAUB’S ANSWER AND DEFENSES TO PLAINTIFF’S SECOND AMENDED COMPLAINT Defendant / Crossclaim Defendant, WEINTRAUB INSPECTIONS & FORENSIC, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC. (“Weintraub”), by and through undersigned counsel, hereby files its answer and defenses to Plaintiff, VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC’s (“Plaintiff”), Second Amended Compliant and Demand for Jury Trial, and states as follows: ANSWER TO SECOND AMENDED COMPLAINT Nature of the Case 1. The Second Amended Complaint speaks for itself; otherwise denied. Jurisdiction and Venue 2. Admitted for jurisdictional purposes only; otherwise denied. 3. Admitted. 4. Without knowledge, therefore denied. 2 5. Admitted that Weintraub has conducted business in Osceola County, Florida; otherwise denied. 6. Admitted for jurisdictional purposes only; otherwise denied. 7. Denied. 8. Without knowledge, therefore denied. Parties 9. Without knowledge, therefore denied. 10. Without knowledge, therefore denied. 11. Without knowledge, therefore denied. 12. Without knowledge, therefore denied. 13. Without knowledge, therefore denied. 14. Without knowledge, therefore denied. 15. Without knowledge, therefore denied. 16. Without knowledge, therefore denied. 17. Without knowledge, therefore denied. 18. Without knowledge, therefore denied. 19. Without knowledge, therefore denied. 20. Without knowledge, therefore denied. 21. Without knowledge, therefore denied. 22. Without knowledge, therefore denied. 23. Without knowledge, therefore denied. 24. Without knowledge, therefore denied. 25. Without knowledge, therefore denied. 3 26. Without knowledge, therefore denied. 27. Without knowledge, therefore denied. 28. Without knowledge, therefore denied. 29. Without knowledge, therefore denied. 30. Without knowledge, therefore denied. 31. Without knowledge, therefore denied. 32. Without knowledge, therefore denied. 33. Without knowledge, therefore denied. 34. Admitted. 35. Admitted that Weintraub was hired by Royal Oak Homes, LLC to perform a limited scope of non-compulsory inspections for some of the townhome units at the Project; otherwise, denied. 36. Without knowledge, therefore denied. 37. Without knowledge, therefore denied. 38. Without knowledge, therefore denied. 39. Without knowledge, therefore denied. Facts Common to All Claims for Relief 40. Without knowledge, therefore denied. 41. Without knowledge, therefore denied. 42. Without knowledge, therefore denied. 43. Without knowledge, therefore denied. 44. Admitted. 45. Admitted. 4 46. Without knowledge, therefore denied. 47. The Second Amended Complaint speaks for itself; otherwise, denied. 48. Denied. 49. Denied. 50. Denied (including all subparts). 51. Denied (including all subparts). 52. Denied (including all subparts). 53. Denied (including all subparts). 54. Denied (including all subparts). 55. Denied (including all subparts). 56. Denied (including all subparts). 57. Denied (including all subparts). 58. Denied (including all subparts). 59. Denied (including all subparts). 60. Denied (including all subparts). 61. Denied. 62. Denied. 63. Denied (including all subparts). 64. Denied. 65. Admitted that, on or about August 20, 2020, Plaintiff sent correspondence to Weintraub which speaks for itself; otherwise denied. 66. Admitted that, on or about August 20, 2020, Plaintiff sent correspondence to Weintraub which speaks for itself; otherwise denied. 5 Counts 1- 25 These counts, including the allegations made in paragraphs 67 through 252, are not directed to Weintraub and therefore do not require a response from Weintraub. To the extent any of the allegations contained in these counts are directed to Weintraub, such allegations are denied. Count 26 This count, including the allegations made in paragraphs 253 through 262, has been dismissed and stricken from the Second Amended Complaint pursuant to the Court’s Order Granting Weintraub’s Amended Motion to Dismiss Count 26 of Plaintiff’s Second Amended Complaint (the “Order”), dated February 2, 2023, and therefore does not require a response from Weintraub. Count 27 263. Weintraub incorporates its responses to paragraphs 1 through 66 above as if fully set forth herein. 264. Admitted that Weintraub was hired by Royal Oak Homes, LLC to perform a limited scope of non-compulsory inspections for some of the townhome units at the Project; otherwise, denied. 265. Denied. 266. Denied. 267. Denied. 268. Denied. 269. Denied. Counts 28 - 29 6 These counts, including the allegations made in paragraphs 270 through 285, are not directed to Weintraub and therefore do not require a response from Weintraub. To the extent any of the allegations contained in these counts are directed to Weintraub, such allegations are denied. ANY AND ALL OTHER ALLEGATIONS NOT EXPRESSLY ADMITTED HEREIN ARE DENIED. DEFENSES First Defense Plaintiff’s claims are barred, in whole or in part, by the applicable statute of limitations, as Plaintiff failed to commence this action against Weintraub within the applicable statutory period, including, without limitation, by failing to commence this action within four years of the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest, as it relates to each building at the Subject Property. To the extent that any of Plaintiff’s claims are based on allegations of latent defects, Plaintiff failed to commence this action within four years of when Plaintiff discovered the defects or should have discovered the defects with the exercise of due diligence. Second Defense Plaintiff’s claims are barred, in whole or in part, by the applicable statute of repose, as Plaintiff failed to commence this action against Weintraub within the applicable repose period, including, without limitation, by failing to commence this action within ten years of the date of actual possession by the owner, the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion of the contract or 7 termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer, whichever date is latest, as it relates to each building at the Subject Property. Third Defense The damages alleged by Plaintiff were solely or partially caused by the negligence or breaches of other parties, entities, or non-parties, including Royal Oak Homes, LLC, and the entities that actually performed the work, over whom Weintraub had no control and for whose control Weintraub is not responsible. Therefore, liability should be apportioned among any known responsible parties, any unknown responsible parties, and any responsible non-parties, pursuant to section 768.81, Florida Statutes, and Fabre v. Marin, 623 So. 2d 1189 (Fla. 1993). Weintraub currently identifies Royal Oak Homes, LLC, the design professionals, subcontractors, suppliers, unit owners, and any other persons or entities performing repairs or maintenance at the Subject Property, as responsible parties and non-parties, including, without limitation, Royal Oak Homes, LLC, Advanced Wrapping and Concrete Solutions Of Central Florida, Inc., Don King’s Concrete, Inc., Hugh MacDonald Construction, Inc., Imperial Building Corporation, TGK Stucco, Inc., Weathermaster Building Products, Inc., The Dimillo Group, LLC, Wolf’s Irrigation & Landscaping, Inc., Summerpark Homes, Inc., Brown + Company Architecture, Inc., and Expert Painting & Pressure Washing, Inc. Weintraub reserves the right to amend this defense prior to trial if any other responsible parties or non-parties are identified through investigation or discovery. Fourth Defense Plaintiff has failed to mitigate its damages and is not entitled to any damages that could have been mitigated, including, without limitation, any damages that could have been mitigated by adequately maintaining the Subject Property and repairing normal wear and tear items. 8 Fifth Defense Plaintiff’s claims are barred by the doctrine espoused under United States v. Spearin, 248 U.S. 132 (1918) and its progeny because Weintraub complied with the express and applicable provisions of any agreement between the parties and properly performed its inspections in reliance on the design documents. Sixth Defense Weintraub is entitled to a setoff of any recovery against it to the extent of the value of all benefits, settlements, or judgments paid or payable to Plaintiff. See Grobman v. Posey, 863 So.2d 1230, 1237 (Fla. 4th DCA 2003). Seventh Defense Weintraub’s inspections were performed in accordance with the standard of care used by similar professionals in the community under similar circumstances, and to the extent that Weintraub observed any deficiencies at the Project, Weintraub notified Royal Oak Homes, LLC of the existence of such deficiencies through the inspection reports Weintraub provided to Royal Oak Homes, LLC. Eighth Defense Plaintiff’s claims are barred because the alleged defects were patent and obvious to Plaintiff or others under its agency or control. Ninth Defense The damages alleged by Plaintiff resulted from improper maintenance and not by improper acts and omissions by Weintraub. 9 Tenth Defense Plaintiff’s claims are barred because the damages sought are speculative, remote, contingent, uncertain, and/or not reasonably ascertainable. Eleventh Defense Plaintiff’s alleged damages were proximately and legally caused by Plaintiff’s own negligence, recklessness, and carelessness, by virtue of its action or inaction in failing to maintain the Subject Property, and such negligence, recklessness, and carelessness bars or reduces pro rata any recovery otherwise available to Plaintiff pursuant to section 768.81, Florida Statutes. Twelfth Defense Plaintiff is improperly attempting to assert damages and prove the existence of construction defects based on the doctrine of extrapolation and by way of generalized proof. Thirteenth Defense Plaintiff is improperly attempting to recover damages that constitute betterment, including the cost to purchase and install building components of a higher quality than what was originally installed, and Plaintiff is not entitled to recover more than what was agreed to be furnished under the contracts governing the construction of the Subject Property. See Grossman v. Sea Air Towers, Ltd., 513 So. 2d 686 (Fla. 3d DCA 1987). Fourteenth Defense Plaintiff has committed spoliation of evidence that is the subject of Plaintiff’s claims by permitting inspectors, contractors, homeowners, tenants, and/or occupants to alter and/or destroy the materials and real property improvements that are at issue in this action without notification to Weintraub. 10 Fifteenth Defense Plaintiff’s alleged damages are barred or diminished by the Economic Waste Doctrine because Plaintiff has adopted a more expensive design for the repair of the alleged construction defects. Plaintiff’s recovery, if any, must be limited to what would have been the reasonable cost of repair according to the original design. Grossman Holdings, Ltd. v. Hourihan, 414 So.2d 1037 (Fla. 1982); Grossman v. Sea Air Towers, Ltd., 513 So. 2d 686, 688 (Fla. 3d DCA 1987); Temple Beth Sholom & Jewish Ctr., Inc. v. Thyne Const. Corp., 399 So. 2d 525, 525 (Fla. 2d DCA 1981). Sixteenth Defense Plaintiff lacks standing to sue for the alleged construction defects and damages because such alleged construction defects and damages fall outside of the common interests of the Subject Property. Seventeenth Defense The Subject Property sustained damages from various hurricanes and named storms, and such damages were caused by an Act of God over which Weintraub had no control and for which Weintraub is not responsible. Eighteenth Defense Plaintiff has failed to state a cause of action against Weintraub for professional negligence because the Second Amended Complaint fails to identify the source of the duty Weintraub is alleged to have owed Plaintiff, and the Second Amended Complaint otherwise fails to allege sufficient facts regarding the scope of Weintraub’s involvement at the Subject Property, Weintraub’s alleged negligent acts or omissions, and what damage Plaintiff has suffered as a result. Nineteenth Defense Plaintiff’s claim against Weintraub for professional negligence is barred because 11 Weintraub owed no duty to Plaintiff. Twentieth Defense Plaintiff’s claim against Weintraub for professional negligence is barred by the economic loss rule because the only damages Plaintiff has allegedly suffered are to the Subject Property itself, Plaintiff has not suffered any personal injury or damage to other property, and Plaintiff’s alleged damages are purely economic. Twenty-first Defense The inspection services Weintraub provided during the construction of the Subject Property were audited, inspected, approved, accepted (expressly or impliedly) and paid for by the contractor, architect, owner, developer, local jurisdiction, and/or the agents, employees, representatives, assignees, subrogors, privies, or predecessor/successor in interest thereof, and Plaintiff’s claims are therefore barred, in whole or in part, by the doctrine espoused under Slavin v. Kay, 108 So. 2d 462 (Fla. 1959), and its progeny, and the related principles of release, estoppel, waiver, and merger. Twenty-second Defense Plaintiff is improperly seeking special damages which it is not permitted to recover against Weintraub because Weintraub had no actual or constructive notice that such damages should have been contemplated as a proximate result of the allegedly deficient inspections. See Florida E. Coast Ry. Co. v. Peters, 83 So. 559, 564 (Fla. 1919). Twenty-third Defense Royal Oak Homes, LLC retained Weintraub to perform limited, non-compulsory inspections at the Project. Weintraub only inspected the building components and buildings Royal Oak Homes, LLC directed it to inspect, and Weintraub owed no duty or obligation to any party to 12 inspect any other building components. The proper installation of the Project’s exterior stucco, building envelope system, and other building components were the responsibility of Royal Oak Homes, LLC and others, not Weintraub. General Response and Reservation Weintraub has not knowingly waived any applicable defenses and reserves the right to assert and rely on such other applicable defenses as may become available or apparent during the course of discovery. Weintraub reserves the right to amend its answer or defenses or to withdraw defenses that Weintraub determines to be inapplicable during the course of subsequent discovery. Weintraub does not assume the burden of proof of the defenses listed above in circumstances in which the applicable law provides otherwise. WHEREFORE, Defendant, Weintraub Inspections & Forensic, Inc. n/k/a Weintraub Engineering and Inspections, Inc., respectfully requests that this Court: (a) enter judgment in favor of Weintraub with respect to all counts against Weintraub; (b) award Weintraub its reasonable costs; and (c) award Weintraub such other and further relief as this Court deems just and proper. Respectfully submitted, /s/ Andrew E. Holway Rocco Cafaro, Esquire Florida Bar No. 0507121 Andrew E. Holway, Esquire Florida Bar No. 098559 Hill Ward Henderson 101 E. Kennedy Blvd., Suite 3700 Tampa, Florida 33602 Telephone: 813-221-3900 Fax: 813-221-2900 rocco.cafaro@hwhlaw.com andrew.holway@hwhlaw.com tracy.coale@hwhlaw.com kathy.wernsing@hwhlaw.com derrick.calandra@hwhlaw.com 13 Attorneys for Weintraub Inspections & Forensic, Inc. n/k/a Weintraub Engineering and Inspections, Inc. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been e-filed with the Osceola County Clerk of the Court and a copy furnished to all parties via electronic mail from the automatic ePortal System of Florida via the address of eservice@myflcourtaccess.com on April 20, 2023. /s/ Andrew E. Holway Attorney 18099905 14