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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, f/k/a AVH DEFENDANT/CROSS-CLAIM
ACQUISITION LLC; ADVANCED PLAINTIFF, ROYAL OAK
WRAPPING AND CONCRETE HOMES, LLC’S, NOTICE OF
SOLUTIONS OF CENTRAL FLORIDA, FILING EVIDENCE IN
INC., a Florida corporation; DON SUPPORT OF ITS RESPONSE
KING’S CONCRETE, INC., a Florida IN OPPOSITION TO
corporation; HUGH MACDONALD PLAINTIFF’S MOTION FOR
CONSTRUCTION, INC., a Florida PARTIAL SUMMARY
corporation; IMPERIAL BUILDING JUDGMENT REGARDING
CORPORATION, a Florida corporation; ROYAL OAK HOMES, LLC’S
PREMIER PLASTERING OF CENTRAL NON-DELEGABLE DUTY
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,
135194605.2
EXPERT PAINTING & PRESSURE
WASHING, INC., a Florida corporation,
Defendants.
/
ROYAL OAK HOMES, LLC, f/k/a AVH
ACQUISITION,
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.
135194605.2
WEATHERMASTER BUILDING
PRODUCTS,
INC., a_ Florida Corporation; DON
KING’S CONCRETE INC., a Florida
Corporation,
Third-Party Plaintiff,
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; E.R.O. CONSTRUCTION,
INC., a Florida Corporation; LIOS
CONCRETE CORP., a Florida
Corporation; and ATLANTIC
CONCRETE SYSTEMS, INC., a Florida
Corporation,
Third-Party Defendants.
/
DEFENDANT/CROSS-CLAIM PLAINTIFF, ROYAL OAK HOMES,
LLC’S, NOTICE OF FILING EVIDENCE IN SUPPORT OF ITS
135194605.2
RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL
SUMMARY JUDGMENT REGARDING ROYAL OAK HOMES, LLC’S
NON-DELEGABLE DUTY
Defendant/Crossclaim Plaintiff, ROYAL OAK HOMES, LLC (“Royal
Oak”), gives notice of filing the attached evidence in support of Royal Oak’s
Response in Opposition to Plaintiff's Motions for Partial Summary Judgment
regarding Royal Oak Homes, LLC’s Non-Delegable Duty:
1 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, along with the following exhibits:
A A true and correct exemplar of one of the building permits Mr.
Franks signed on behalf of Royal Oak; and
B A true and correct exemplar of a form Master or Subcontractor
Agreement used with a Trade or Subcontractor at Emerald Lake.
2 Excerpts from the deposition transcript of William Colby Franks taken
in the case of Villas at Emerald Lake Homeowners Association, Inc. v. Royal Oak
Homes, LLC, a Florida limited liability company, f/k/a AVH Acquisition, LLC, et.
al., Case No. 2020-CA-002942-ON, dated September 21, 2022: (Franks Dep., 1:1-
25, 2:1-25, 3:1-25, 10:1-10, 29:16-25, 30:1-10, 69:7-22, 74:4-18, 78:20-25, 79: 1-13,
163:10-25).
135194605.2
3 Deposition Exhibit Numbers: 52 and 54.
/s/ J. 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
Iprats@carltonfields.com
rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
ffoley@carltonfields.com
fgonzalez@carltonfields.com
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/ J. Michael Walls
Attorney
135194605.2
EXHIBIT 1
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,
CASE NO.: 2020-CA-002942-
ON
ROYAL OAK HOMES, LLC, a Florida
limited liability company, fik/a AVH AFFIDAVIT OF COLBY
ACQUISITION LLC; ADVANCED FRANKS IN SUPPORT OF
WRAPPING AND CONCRETE DEFENDANT ROYAL OAK
SOLUTIONS OF CENTRAL FLORIDA, HOMES, LLC’S RESPONSE
INC., a Florida corporation; DON KING’S AND MEMORANDUM OF
CONCRETE, INC., a Florida corporation; LAW IN OPPOSITION TO
HUGH MACDONALD CONSTRUCTION, PLAINTIFF’S MOTION FOR
INC., a Florida corporation; IMPERIAL PARTIAL SUMMARY
BUILDING CORPORATION, a Florida JUDGMENT REGARDING
corporation; PREMIER PLASTERING OF ROYAL OAK HOMES, LLC’S
CENTRAL FLORIDA, INC. n/k/a TGK NON-DELEGABLE DUTY
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,
1
135085742.1
Defendants.
ROYAL OAK HOMES, LLC, t/k/a AVH
ACQUISITION,
Crossclaim Plaintiff,
Vv.
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,
135085742.1
INC., a Florida Corporation; DON KING'S
CONCRETE INC., a Florida Corporation,
Third-Party Plaintiff,
Vv
ALL GLASS NSTALLATION 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;
E.R.O. CONSTRUCTION, INC., a Florida
Corporation; LIOS CONCRETE CORP., a
Florida Corporation; and ATLANTIC
CONCRETE SYSTEMS, INC., a Florida
Corporation,
Third-Party Defendants.
/
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
BEFORE ME, the undersigned authority, this day personally appeared Colby
Franks, who being first duly sworn, deposes and says:
135085742.1
I My name is Colby Franks. I am over eighteen (18) years of age, and |
am competent to testify as to all matters set forth in this Affidavit.
4
Zz The facts stated in this Affidavit are based on my personal knowledge
and from information contained in project records maintained in the ordinary course
of Royal Oak Homes, LLC’s (“Royal Oak”) business, as described herein.
3 lam a 1993 graduate of the University of Florida, School of Building
Construction. Afier graduating from the University of Florida, | began working with
Engle Homes and worked with Engle Homes for about 18 years. I began as an
assistant builder in the field, moved to the job of a superintendent in the field, then
Director of Construction, followed by Vice President of Construction. My last
position with Engle Homes was Vice President of Operations. Engle Homes’
business was residential construction of both single family homes and townhomes.
4 In 2010, I started Royal Oak with the Orosz family. The business of
Royal Oak was residential construction including single family homes and
townhomes. I was the Vice President of Operations for Royal Oak. Royal Oak built
its first homes in 2010 and 201 1. Royal Oak continued in the residential construction
business until Royal Oak was acquired by AV Homes. Subsequently, AV Homes
was acquired by Taylor Morrison. I worked for Royal Oak until 2017 or 2018. 1 left
Royal Oak after it was acquired by AV Homes and joined Hanover Family Builders,
which was also a residential construction firm, where I worked until 2022
135085742.1
$ I have been a licensed general contractor in the State of Florida since
2004. I served as the Vice President of Operations and the qualifier for Royal Oak
on several residential construction projects. This included the Villas at Emerald
Lake, a townhome community located in Kissimmee, Osceola County, Florida
(“Emerald Lake”), Emerald Lake contains twelve (12) two-story buildings with
eighty-eight (88) individual townhomes. Royal Oak was not the developer of
Emerald Lake. Royal Oak purchased lots from the developer and retained
subcontractors to construct ten (10) of the buildings containing seventy-six (76)
townhomes between 2015 and 2017.
6 Prior to construction, and after retaining subcontractors under master
subcontract agreements with Royal Oak, Royal Oak obtained building permits from
the Osceola County Building Department for each of the seventy-six (76) Emerald
Lake townhomes constructed by Royal Oak subcontractors. A true and correct
exemplar of one of the building permits I signed on behalfof Royal Oak is attached
as Exhibit A to this Affidavit. The certification that all work will be performed to
meet all provisions of laws and ordinances regulating construction in this jurisdiction
in Exhibit A is typical of all building permit applications for all seventy-six (76)
townhomes in Emerald Lake constructed by Royal Oak subcontractors. No work had
been performed at the time the building permit application containing this
certification was signed.
135085742.1
7 The certification in the building permit application in Exhibit A does
not tell me, as the qualifier on behalf of the general contractor completing the
application, how | am expected to see that all work will be performed to meet all
provisions of laws and ordinances regulating construction. | am aware of no
requirements for a general contractor of residential construction in Florida in the
building permit application or anywhere else that specifically tells the general
contractor how to see or ensure that all work on any residential project will be
performed to meet all provisions of laws and ordinances regulating construction.
8 For Emerald Lake, Royal Oak entered into Master Agreements,
Subcontract Agreements, or similar form agreements with Trades or Subcontractors
for all labor, services, materials, and/or work furnished by that particular Trade or
Subcontractor before the building permit application was signed and the building
permit obtained. Royal Oak’s business practice was to use form agreements with its
Trades or Subcontractors, and this business practice was employed with the Trades
or Subcontractors at Emerald Lake.
9 A true and correct copy of an exemplar of one of these form Master or
Subcontractor Agreements used with a Trade or Subcontractor at Emerald Lake is
attached to my Affidavit as Exhibit B. No Trade or Subcontractor who performed
any work at Emerald Lake performed that work or was paid for that work without
entering into one of these form agreements with Royal Oak. It was not Royal Oak’s
135085742.
policy, nor is it common practice or standard in the homebuilder construction
industry in Florida, to enter into new, separate agreements for construction of each
individual residence. Rather, it was Royal Oak’s common practice and policy for
form agreements with Trades or Subcontractors like those attached as Exhibit B to
my Affidavit to be in effect for multiple years and to govern relationships on multiple
residential projects.
10. Once the Subcontract Agreement or Master Agreement, or its
equivalent form agreement is executed, it was Royal Oak’s common practice to issue
purchase orders to specifically retain the Trade or Subcontractor to furnish labor,
services, work, and/or materials for a particular residence pursuant to the terms and
conditions of the Master Agreement or Subcontract Agreement. The purchase orders
typically specify the Trades or Subcontractors to whom they are directed, the name
of the project, the location where the work is to be performed, the work to be
performed, and the amount the Trades or Subcontractors will be paid. This common
practice was followed by Royal Oak at Emerald Lake.
11. After issuance of a purchase order at Emerald Lake, Royal Oak’s
common practice for each Trade or Subcontractor was for them to coordinate with
Royal Oak and then to furnish and supervise the labor, services, materials, and/or
work the Trade or Subcontractor was performing at Emerald Lake. As the typical
form agreement attached as Exhibit B makes clear, the Trades or Subcontractors are
135085742.1
independent contractors responsible for the means and methods of performing their
scopes of work in accordance with plans and specifications and the Florida Building
Code. Royal Oak hired the Trades or Subcontractors because of their expertise in
their respective fields, and they each represented in their respective agreements with
Royal Oak that they were experts in their respective fields. The Trades or
Subcontractors further agreed to provide a qualified supervisor whenever the Trade
or Subcontractor was performing its work at Emerald Lake.
12; Royal Oak did not self-perform any work at Emerald Lake. Royal Oak
does not perform daily, or on any other regular basis, any work that Royal Oak
retained Trades or Subcontractors to perform at Emerald Lake. Royal Oak is not the
expert in the particular Trade or Subcontract work. The Trade or Subcontractor who
performs that work every day in the course of their business is the expert in that
particular Trade’s or Subcontractor’s work. If any Trade or Subcontractor informed
Royal Oak that the Trade or Subcontractor needed training from Royal Oak to
perform their work prior to performing it at Emerald Lake to meet all provisions of
laws and ordinances regulating construction in Florida, then Royal Oak would not
have hired them to perform that work at Emerald Lake. All work at Emerald Lake
was therefore performed by the independent contractors retained by Royal Oak
because they were the experts in performing their respective work. This is the
method I and Royal Oak employed at Emerald Lake to certify on the building permit
135085742.1
application that the work will be performed to meet all provisions of laws and
ordinances regulating construction in Florida.
ES. Each Trade or Subcontractor performed its work with one or more
crews of individuals manually performing the work supervised by the Trade’s or
Subcontractor’s on-site supervisor. This manual construction by individual members
of the Trade or Subcontractor crews supervised by the Trade or Subcontractor
superintendent is typical of construction of townhomes and residences in Florida like
Emerald Lake. When the Trade’s or Subcontractor’s supervisor represented that its
work was complete, Royal Oak’s builder on site confirmed the work looked
complete and approved payment to the Trade or Subcontractor.
14. Royal Oak’s builders were on site daily during construction at Emerald
Lake. As the qualifier and Vice President of Operations, I regularly visited Emerald
Lake to meet with the builders and, if need be, Trade or Subcontractor
superintendents to review the construction at Emerald Lake. The area Vice President
of Construction also visited Emerald Lake during construction. This multi-level
supervision, from the Trade or Subcontractor crews and supervisors who were
directly responsible for construction of the townhomes per the plans and
specifications and the Florida Building Code, to Royal Oak’s builders who were on-
site daily during construction, and to Royal Oak’s area construction manager and
myselfas qualifier and Vice President of Operations who made regular visits during
135085742.1
construction of Emerald Lake, was typical of Royal Oak’s supervision of townhome
projects like Emerald Lake. And, based on my thirty years of experience in the
residential construction industry in Florida, this multi-level supervision practice is
typical for residential construction in Florida.
FURTHER AFFIANT SAYETH NAUGHT
BY: hh
COLBY FRANKS
STATE OF FLORIDA )
) SS:
COUNTY OF Dray )
SWORN AND SUBSCRIBED to before me, the undersigned authority, this
f day of febrows , 2024, by COLBY FRANKS who is personally known
to me or 0 who produced as identification, and being first duly
sworn by me, deposes and says that he has read the foregoing Affidavit and that the
contents contained therein are true and correct to the best of his knowledge and
Jd ss
belief.
Notary Pub lic, State Bilagie
4
xp
My Qmm on
Notary Public State of Florida
Christian Joseph Atwell
My Commission HH 458951
mnt Expires 10/26/2027
10
135085742.1
EXHIBIT
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++++++++++P14-001062\Jobsite Documents\PERMIT APPLICATION P14-001062.pdf, File Version #1 ¥-
++++++++++Reviewed for Code Compliance - Osceola County Building Office - P14-
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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, f/k/a AVH DEFENDANT/CROSS-CLAIM ACQUISITION LLC; ADVANCED PLAINTIFF, ROYAL OAK WRAPPING AND CONCRETE HOMES, LLC’S, NOTICE OF SOLUTIONS OF CENTRAL FLORIDA, FILING EVIDENCE IN INC., a Florida corporation; DON SUPPORT OF ITS RESPONSE KING’S CONCRETE, INC., a Florida IN OPPOSITION TO corporation; HUGH MACDONALD PLAINTIFF’S MOTION FOR CONSTRUCTION, INC., a Florida PARTIAL SUMMARY corporation; IMPERIAL BUILDING JUDGMENT REGARDING CORPORATION, a Florida corporation; ROYAL OAK HOMES, LLC’S PREMIER PLASTERING OF CENTRAL NON-DELEGABLE DUTY 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, 135194605.2 EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation, Defendants. / ROYAL OAK HOMES, LLC, f/k/a AVH ACQUISITION, 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. 135194605.2 WEATHERMASTER BUILDING PRODUCTS, INC., a_ Florida Corporation; DON KING’S CONCRETE INC., a Florida Corporation, Third-Party Plaintiff, 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; E.R.O. CONSTRUCTION, INC., a Florida Corporation; LIOS CONCRETE CORP., a Florida Corporation; and ATLANTIC CONCRETE SYSTEMS, INC., a Florida Corporation, Third-Party Defendants. / DEFENDANT/CROSS-CLAIM PLAINTIFF, ROYAL OAK HOMES, LLC’S, NOTICE OF FILING EVIDENCE IN SUPPORT OF ITS 135194605.2 RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT REGARDING ROYAL OAK HOMES, LLC’S NON-DELEGABLE DUTY Defendant/Crossclaim Plaintiff, ROYAL OAK HOMES, LLC (“Royal Oak”), gives notice of filing the attached evidence in support of Royal Oak’s Response in Opposition to Plaintiff's Motions for Partial Summary Judgment regarding Royal Oak Homes, LLC’s Non-Delegable Duty: 1 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, along with the following exhibits: A A true and correct exemplar of one of the building permits Mr. Franks signed on behalf of Royal Oak; and B A true and correct exemplar of a form Master or Subcontractor Agreement used with a Trade or Subcontractor at Emerald Lake. 2 Excerpts from the deposition transcript of William Colby Franks taken in the case of Villas at Emerald Lake Homeowners Association, Inc. v. Royal Oak Homes, LLC, a Florida limited liability company, f/k/a AVH Acquisition, LLC, et. al., Case No. 2020-CA-002942-ON, dated September 21, 2022: (Franks Dep., 1:1- 25, 2:1-25, 3:1-25, 10:1-10, 29:16-25, 30:1-10, 69:7-22, 74:4-18, 78:20-25, 79: 1-13, 163:10-25). 135194605.2 3 Deposition Exhibit Numbers: 52 and 54. /s/ J. 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 Iprats@carltonfields.com rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com ffoley@carltonfields.com fgonzalez@carltonfields.com 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/ J. Michael Walls Attorney 135194605.2 EXHIBIT 1 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, CASE NO.: 2020-CA-002942- ON ROYAL OAK HOMES, LLC, a Florida limited liability company, fik/a AVH AFFIDAVIT OF COLBY ACQUISITION LLC; ADVANCED FRANKS IN SUPPORT OF WRAPPING AND CONCRETE DEFENDANT ROYAL OAK SOLUTIONS OF CENTRAL FLORIDA, HOMES, LLC’S RESPONSE INC., a Florida corporation; DON KING’S AND MEMORANDUM OF CONCRETE, INC., a Florida corporation; LAW IN OPPOSITION TO HUGH MACDONALD CONSTRUCTION, PLAINTIFF’S MOTION FOR INC., a Florida corporation; IMPERIAL PARTIAL SUMMARY BUILDING CORPORATION, a Florida JUDGMENT REGARDING corporation; PREMIER PLASTERING OF ROYAL OAK HOMES, LLC’S CENTRAL FLORIDA, INC. n/k/a TGK NON-DELEGABLE DUTY 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, 1 135085742.1 Defendants. ROYAL OAK HOMES, LLC, t/k/a AVH ACQUISITION, Crossclaim Plaintiff, Vv. 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, 135085742.1 INC., a Florida Corporation; DON KING'S CONCRETE INC., a Florida Corporation, Third-Party Plaintiff, Vv ALL GLASS NSTALLATION 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; E.R.O. CONSTRUCTION, INC., a Florida Corporation; LIOS CONCRETE CORP., a Florida Corporation; and ATLANTIC CONCRETE SYSTEMS, INC., a Florida Corporation, Third-Party Defendants. / 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 BEFORE ME, the undersigned authority, this day personally appeared Colby Franks, who being first duly sworn, deposes and says: 135085742.1 I My name is Colby Franks. I am over eighteen (18) years of age, and | am competent to testify as to all matters set forth in this Affidavit. 4 Zz The facts stated in this Affidavit are based on my personal knowledge and from information contained in project records maintained in the ordinary course of Royal Oak Homes, LLC’s (“Royal Oak”) business, as described herein. 3 lam a 1993 graduate of the University of Florida, School of Building Construction. Afier graduating from the University of Florida, | began working with Engle Homes and worked with Engle Homes for about 18 years. I began as an assistant builder in the field, moved to the job of a superintendent in the field, then Director of Construction, followed by Vice President of Construction. My last position with Engle Homes was Vice President of Operations. Engle Homes’ business was residential construction of both single family homes and townhomes. 4 In 2010, I started Royal Oak with the Orosz family. The business of Royal Oak was residential construction including single family homes and townhomes. I was the Vice President of Operations for Royal Oak. Royal Oak built its first homes in 2010 and 201 1. Royal Oak continued in the residential construction business until Royal Oak was acquired by AV Homes. Subsequently, AV Homes was acquired by Taylor Morrison. I worked for Royal Oak until 2017 or 2018. 1 left Royal Oak after it was acquired by AV Homes and joined Hanover Family Builders, which was also a residential construction firm, where I worked until 2022 135085742.1 $ I have been a licensed general contractor in the State of Florida since 2004. I served as the Vice President of Operations and the qualifier for Royal Oak on several residential construction projects. This included the Villas at Emerald Lake, a townhome community located in Kissimmee, Osceola County, Florida (“Emerald Lake”), Emerald Lake contains twelve (12) two-story buildings with eighty-eight (88) individual townhomes. Royal Oak was not the developer of Emerald Lake. Royal Oak purchased lots from the developer and retained subcontractors to construct ten (10) of the buildings containing seventy-six (76) townhomes between 2015 and 2017. 6 Prior to construction, and after retaining subcontractors under master subcontract agreements with Royal Oak, Royal Oak obtained building permits from the Osceola County Building Department for each of the seventy-six (76) Emerald Lake townhomes constructed by Royal Oak subcontractors. A true and correct exemplar of one of the building permits I signed on behalfof Royal Oak is attached as Exhibit A to this Affidavit. The certification that all work will be performed to meet all provisions of laws and ordinances regulating construction in this jurisdiction in Exhibit A is typical of all building permit applications for all seventy-six (76) townhomes in Emerald Lake constructed by Royal Oak subcontractors. No work had been performed at the time the building permit application containing this certification was signed. 135085742.1 7 The certification in the building permit application in Exhibit A does not tell me, as the qualifier on behalf of the general contractor completing the application, how | am expected to see that all work will be performed to meet all provisions of laws and ordinances regulating construction. | am aware of no requirements for a general contractor of residential construction in Florida in the building permit application or anywhere else that specifically tells the general contractor how to see or ensure that all work on any residential project will be performed to meet all provisions of laws and ordinances regulating construction. 8 For Emerald Lake, Royal Oak entered into Master Agreements, Subcontract Agreements, or similar form agreements with Trades or Subcontractors for all labor, services, materials, and/or work furnished by that particular Trade or Subcontractor before the building permit application was signed and the building permit obtained. Royal Oak’s business practice was to use form agreements with its Trades or Subcontractors, and this business practice was employed with the Trades or Subcontractors at Emerald Lake. 9 A true and correct copy of an exemplar of one of these form Master or Subcontractor Agreements used with a Trade or Subcontractor at Emerald Lake is attached to my Affidavit as Exhibit B. No Trade or Subcontractor who performed any work at Emerald Lake performed that work or was paid for that work without entering into one of these form agreements with Royal Oak. It was not Royal Oak’s 135085742. policy, nor is it common practice or standard in the homebuilder construction industry in Florida, to enter into new, separate agreements for construction of each individual residence. Rather, it was Royal Oak’s common practice and policy for form agreements with Trades or Subcontractors like those attached as Exhibit B to my Affidavit to be in effect for multiple years and to govern relationships on multiple residential projects. 10. Once the Subcontract Agreement or Master Agreement, or its equivalent form agreement is executed, it was Royal Oak’s common practice to issue purchase orders to specifically retain the Trade or Subcontractor to furnish labor, services, work, and/or materials for a particular residence pursuant to the terms and conditions of the Master Agreement or Subcontract Agreement. The purchase orders typically specify the Trades or Subcontractors to whom they are directed, the name of the project, the location where the work is to be performed, the work to be performed, and the amount the Trades or Subcontractors will be paid. This common practice was followed by Royal Oak at Emerald Lake. 11. After issuance of a purchase order at Emerald Lake, Royal Oak’s common practice for each Trade or Subcontractor was for them to coordinate with Royal Oak and then to furnish and supervise the labor, services, materials, and/or work the Trade or Subcontractor was performing at Emerald Lake. As the typical form agreement attached as Exhibit B makes clear, the Trades or Subcontractors are 135085742.1 independent contractors responsible for the means and methods of performing their scopes of work in accordance with plans and specifications and the Florida Building Code. Royal Oak hired the Trades or Subcontractors because of their expertise in their respective fields, and they each represented in their respective agreements with Royal Oak that they were experts in their respective fields. The Trades or Subcontractors further agreed to provide a qualified supervisor whenever the Trade or Subcontractor was performing its work at Emerald Lake. 12; Royal Oak did not self-perform any work at Emerald Lake. Royal Oak does not perform daily, or on any other regular basis, any work that Royal Oak retained Trades or Subcontractors to perform at Emerald Lake. Royal Oak is not the expert in the particular Trade or Subcontract work. The Trade or Subcontractor who performs that work every day in the course of their business is the expert in that particular Trade’s or Subcontractor’s work. If any Trade or Subcontractor informed Royal Oak that the Trade or Subcontractor needed training from Royal Oak to perform their work prior to performing it at Emerald Lake to meet all provisions of laws and ordinances regulating construction in Florida, then Royal Oak would not have hired them to perform that work at Emerald Lake. All work at Emerald Lake was therefore performed by the independent contractors retained by Royal Oak because they were the experts in performing their respective work. This is the method I and Royal Oak employed at Emerald Lake to certify on the building permit 135085742.1 application that the work will be performed to meet all provisions of laws and ordinances regulating construction in Florida. ES. Each Trade or Subcontractor performed its work with one or more crews of individuals manually performing the work supervised by the Trade’s or Subcontractor’s on-site supervisor. This manual construction by individual members of the Trade or Subcontractor crews supervised by the Trade or Subcontractor superintendent is typical of construction of townhomes and residences in Florida like Emerald Lake. When the Trade’s or Subcontractor’s supervisor represented that its work was complete, Royal Oak’s builder on site confirmed the work looked complete and approved payment to the Trade or Subcontractor. 14. Royal Oak’s builders were on site daily during construction at Emerald Lake. As the qualifier and Vice President of Operations, I regularly visited Emerald Lake to meet with the builders and, if need be, Trade or Subcontractor superintendents to review the construction at Emerald Lake. The area Vice President of Construction also visited Emerald Lake during construction. This multi-level supervision, from the Trade or Subcontractor crews and supervisors who were directly responsible for construction of the townhomes per the plans and specifications and the Florida Building Code, to Royal Oak’s builders who were on- site daily during construction, and to Royal Oak’s area construction manager and myselfas qualifier and Vice President of Operations who made regular visits during 135085742.1 construction of Emerald Lake, was typical of Royal Oak’s supervision of townhome projects like Emerald Lake. And, based on my thirty years of experience in the residential construction industry in Florida, this multi-level supervision practice is typical for residential construction in Florida. FURTHER AFFIANT SAYETH NAUGHT BY: hh COLBY FRANKS STATE OF FLORIDA ) ) SS: COUNTY OF Dray ) SWORN AND SUBSCRIBED to before me, the undersigned authority, this f day of febrows , 2024, by COLBY FRANKS who is personally known to me or 0 who produced as identification, and being first duly sworn by me, deposes and says that he has read the foregoing Affidavit and that the contents contained therein are true and correct to the best of his knowledge and Jd ss belief. 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Oly 3 | se Slav ~ 1 > 4 3> mS oA C > LHS \)— E >| > ain in > so = ch In - > $e Ic Tt in 8 re 8 oo ek Fo Dm mo Dic 5 | 2 | le |S mn a {Ss ays ti low Sus o | Als AS m |S P44- 1 ttttttttttttttt+tt++t+++ P14-001062 APPROVED ++++++++++Project Name: P14-001062, Stamp Date: 04/25/14, File Upload Date: 4/25/2014 2:14:39 PM, ++++++++++P14-001062\Jobsite Documents\PERMIT APPLICATION P14-001062.pdf, File Version #1 ¥- ++++++++++Reviewed for Code Compliance - Osceola County Building Office - P14-