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Filing # 129173062 E-Filed 06/21/2021 03:28:10 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, CASE NO.:2020-CA-002942
Plaintiff,
V.
ROYAL OAK HOMES, LLC, A FLORIDA
LIMTIED LIABILTY COMPANY;
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., 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 ARCHITECHURE,
INC., A FLORIDA CORPORATION;
Defendants.
/
ROYAL OAK HOMES, LLC, A FLORIDA
LIMITED LIABILITY COMPANY,
Crossclaim Plaintiff,
Vv.
ADVANCED WRAPPING AND CONCRETE
SOLUTIONS OF CENTRAL FLORIDA, INC.,
A FLORIDA CORPORATION; DON KING’S
CONCRETE, INC., A FLORIDA
CORPORATION; IMPERIAL FLORIDA
CORPORATION, A FLORIDA
CORPORATION; PREMIER PLASTERING
OF CENTRAL FLORIDA, INC., A FLORIDA
CORPORTION; WEATHERMASTER
BUILDING PRODUCTS, INC., A FLORIDA
CORPORATION; WEINTRAUB
INSPECTIONS & FORENSICS, INC., N/K/A
WIENTRAUB ENGINEERING AND
INSEPCTIONS, INC.; WOLF’S IRRIGATION
& LANDSCAPING, INC., A FLORIDA
CORPORATION; BROWN+COMPANY
ARCHITECHTURE, INC., A FLORIDA
CORPORATION;
Crossclaim Defendants.
/
WEATHERMASTER BUILDING
PRODUCTS, INC., A FLORIDA
CORPORATION;
Third-Party Plaintiff,
Vv.
ALL GLASS INSTALLATION CORP., A
FLORIDA CORPORATION; CASEY
HAWKINS GLASS, INC., A FLORIDA
CORPORATION; DEAN NESBIT, LLC, A
FLORIDA LIMITED LIABILITY COMPANY;
HOBBIT WINDOWS, LLC, A FLORIDA
LIMITED LIABILITY COMPANY; T&M
CONSTRUCTION OF SANFORD, INC., A
FLORIDA CORPORATION; AND WELL
HUNG WINDOWS & DOORS, LLC, A
FLORIDA LIMITED LIABILITY COMPANY;
Third-Party Defendants
PREMIER PLASTERING OF CENTRAL FLORIDA, INC.’S ANSWER
AND AFFIRMATIVE DEFENSES TO ROYAL OAK HOMES, LLC’S
AMENDED CROSSCLAIM
COMES NOW the Defendant/Crossclaim Defendant, PREMIER PLASTERING OF
CENTRAL FLORIDA, INC. (“PREMIER”), by and through its undersigned counsel, and pursuant
to the Florida Rules of Civil Procedure 1.110, and hereby files this Answer and Affirmative
Defenses to Defendant/Crossclaim Plaintiff's, ROYAL OAK HOMES, LLC (“Royal Oak”),
Amended Crossclaim, and states the following:
Jurisdiction and Venue
Without knowledge, therefore denied.
Admitted for jurisdictional purposes only, otherwise denied.
Without knowledge, therefore denied.
4 PREMIER admits it conducted business in Osceola County, Florida. Otherwise,
without knowledge, therefore denied.
Parties
5.—9. Without knowledge, therefore denied.
10. PREMIER admits it is or was a Florida corporation authorized to do business in
Florida with its principal place of business in Chuluota, Florida. PREMIER is without knowledge
regarding the remaining allegations in paragraph 10 of the Amended Crossclaim, therefore denied.
11-14. Without knowledge, therefore denied.
General Allegation
15. As to PREMIER, denied. Otherwise, without knowledge, therefore denied.
16. As to PREMIER, the contract speaks for itself, otherwise denied. As to the other
Crossclaim Defendants, PREMIER is without knowledge, therefore denied.
17. As to PREMIER, denied. As to the other Crossclaim Defendants, PREMIER is
without knowledge, therefore denied.
18. Without knowledge, therefore denied.
Counts One Through Sixteen
19.- 141. Counts One through Sixteen (i.e., paragraphs 19 through 141) of the Amended
Crossclaim do not pertain to and do not seek affirmative relief against PREMIER, and accordingly
no response to the allegations of said Counts are required of PREMIER. However, should the
allegations of Counts One through Sixteen be deemed to pertain or seek to establish any basis for
the imposition of liability against PREMIER, PREMIER denies each and every allegation
contained therein.
Count Seventeen — Breach of Contract
As to Premier Plastering of Central Florida, Inc. n/k/a TGK Stucco, Ine.
141. PREMIER re-alleges its responses to the allegations contained in paragraphs 1 —
18, above, as if fully restated herein.
142. ROYAL OAK’s Amended Crossclaim speaks for itself, otherwise denied.
PREMIER denies the documents attached as Exhibit F constitute a “contract between Premier and
Royal Oak.”
143 Denied.
144 Plaintiff's Amended Complaint speaks for itself, otherwise denied.
145 Denied.
146, Denied.
147, Without knowledge, therefore denied.
148, Without knowledge, therefore denied.
149, Without knowledge, therefore denied.
150. PREMIER is without knowledge regarding Royal Oak’s retention of Carlton
Fields, P.A. therefore denied. Otherwise, denied.
151. Denied.
Count Eighteen — Negligence:
As to Premier Plastering of Central Florida, Inc. n/k/a TGK Stucco, Inc.
152. PREMIER te-alleges its responses to the allegations contained in paragraphs 1-18,
above, as if fully restated herein.
153. Without knowledge, therefore denied.
154, Denied.
155. Denied.
Count Nineteen — Statuto Cause of Action Pursuant to § 553.84, Fla. Stat.
As to Premier Plastering of Central Florida, Inc. n/k/a TGK Stucco, Inc.
156. PREMIER re-alleges its responses to the allegations contained in paragraphs 1-18,
above, as if fully restated herein.
157. Denied.
158, Without knowledge, therefore denied.
159, Plaintiff's Amended Complaint speaks for itself, otherwise denied.
160. Denied.
161 Denied.
162. Denied.
163 Denied.
Counts Twenty Through Thirty-On
164. — 260. Counts Twenty through Thirty-One (i.e., paragraphs 164 through 260) of the
Crossclaim do not pertain to and do not seek affirmative relief against PREMIER, and accordingly
no response to the allegations of said Counts are required of PREMIER. However, should the
allegations of Counts Twenty through Thirty-One be deemed to pertain or seek to establish any
basis for the imposition of liability against PREMIER, PREMIER denies each and every allegation
contained therein.
AFFIRMATIVE DEFENSES
FIRST AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that PREMIER is entitled to
an apportionment of damages in relation to the degree of fault, if any, of all parties, entities, or
persons (named in this action or unnamed), pursuant to section 768.81, Florida Statutes, and the
principles of law set forth by Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). PREMIER specifically
names each and every party to this action, and any affiliates of the aforementioned, and any other
persons or entities involved with the construction of the Project, whose identity remains unknown,
who were negligent and at fault for any damages proven by ROYAL OAK and Plaintiff.
PREMIER further reserves the rights to supplement these Affirmative Defenses as discovery
progresses in this action.
SECO! AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and the
Plaintiff's claims are barred because PREMIER followed the plans and specifications in
performing its work on the Project such that PREMIER cannot be held liable for any loss or
damages resulting from defective plans and specifications and ROYAL OAKS’s and the Plaintiff's
claims are therefore barred by the doctrine espoused under United States v. Spearin, 248 U.S. 132
(1918) and its progeny.
THIRD AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK had a duty
to mitigate its damages, and any recovery by ROYAL OAK in this action should be reduced to the
extent which ROYAL OAK failed to mitigate its damages.
FOURTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that any alleged defects or
deficiencies in any work performed by PREMIER at the Project are a result of a lack of proper
maintenance, abuse, or neglect by the Plaintiff and/or ROYAL OAK, rather than defective
materials or original work performed by PREMIER.
FIFTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims
may be barred or limited by spoliation of evidence to the extent ROYAL OAK and/or the Plaintiff
engaged in repairs and other activities without notice to PREMIER that disturbed the original
conditions of the Project.
SIXTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that to the extent other parties
or persons (including the Plaintiff, ROYAL OAK, Defendants, and/or Crossclaim Defendants)
subsequently modified or altered the work of PREMIER, PREMIER cannot be held liable.
SEVENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and the
Plaintiffs claims are barred, in whole or in part, to the extent that the alleged damages were caused
by intervening or superseding causes over which PREMIER had no control.
EIGHTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s alleged
damages are barred to the extent they are speculative, excessive, remote, contingent, prospective,
uncertain, improbable, not reasonably ascertainable, were unforeseeable, and do not logically,
naturally, probably, or proximately flow from any alleged breach of duty.
NINTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that the designer of the Project
was charged with the non-delegable duty of ensuring that the design conformed with and met all
applicable laws, regulations and building codes, as required by Atlantic National Bank of
Jacksonville v. Modular Age, Inc., 363 So. 2d 1152 (Fla. lst DCA 1978). PREMIER followed the
plans and specifications in performing its work on the Project, and to the extent that the design or
specified materials do not conform with all applicable laws, regulations, or building codes,
PREMIER is not legally responsible for same.
TENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that any damages suffered by
ROYAL OAK, if any, were the result of acts of nature over which PREMIER had no control.
ELEVENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and the
Plaintiff's claims are barred, in whole or in part, to the extent a lack of causal relationship exists
between the alleged damages and PREMIER’s work.
TWELFTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that to the extent the
remediation proposed or performed by ROYAL OAK or the Plaintiff, has resulted, or will result
in economic waste, PREMIER is not legally responsible for economically wasteful remediation to
the Project. See Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982).
THIRTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and/or
the Plaintiff's damages, if any, are barred and/or must be reduced in accordance with the principles
of “first cost” and “betterment,” which consist of costs that have or will result in betterment to the
Project beyond what was called for in the applicable plans and specifications. PREMIER cannot
be held liable therefor or is entitled to a set-off for the value of such betterment. See Grossman v.
Sea Air Towers Ltd., 513 So, 2d 686 (Fla. 3d DCA 1987).
FOURTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims
must be set off and reduced to the extent ROYAL OAK receives payment or consideration from
other parties or non-parties for its alleged damages.
FIFTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims
are barred by the applicable statute of limitations and repose, as set forth in section 95.11, Florida
Statutes.
SIXTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that in the event ROYAL
OAK prevails on any claims, PREMIER is entitled to a setoff from any and all settlements, releases
and/or hold harmless agreements pursuant to section 768.041, Florida Statutes and applicable
Florida law.
SEVENTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that PREMIER is not liable to
ROYAL OAK and/or the Plaintiff because the defects complained of were patent and obvious in
nature. See Slavin v. Kaye, 108 So, 2d 462 (Fla. 1959).
EIGHTEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that any alleged defects in
PREMIER’s scope of work are wholly the result of normal wear and tear and/or damages due to
weather conditions or other causes or circumstances.
NINETEENTH AFFIRMATIVE DEFENSE
PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims
are barred, in whole or in part, by the doctrines of waiver, estoppel, and acquiescence, to the extent
ROYAL OAK approved of PREMIER’s work during construction and at completion of the
Project.
TWENTIETH AFFIRMATIVE DEFENSE
To the extent applicable and available to PREMIER, PREMIER hereby incorporates herein
all affirmative defenses alleged or to be alleged by all other Crossclaim Defendants to ROYAL
OAK’s claims.
PREMIER reserves the right to amend its Affirmative Defenses as discovery proceeds in
this action and information supporting amendment of its Affirmative Defenses becomes known to
PREMIER.
WHEREFORE the Defendant/Cross-Defendant, PREMIER PLASTERING OF
CENTRAL FLORIDA, INC., respectfully requests this Court to:
a) enter judgment in favor of PREMIER PLASTERING OF CENTRAL FLORIDA,
INC.;
b) deny the relief sought in ROYAL OAK HOMES, LLC’s Crossclaim in its entirety;
c) award PREMIER PLASTERING OF CENTRAL FLORIDA, INC., its costs
pursuant section 57.041, Florida Statutes;
d) award PREMIER PLASTERING OF CENTRAL FLORIDA, INC. is reasonable
attorneys’ fees incurred pursuant to the alleged contract; and
°) grant PREMIER PLASTERING OF CENTRAL FLORIDA, INC. such other and
further relief as this Court deems just and proper.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that on the 21‘ day of June, 2021, I electronically filed the
foregoing with the Clerk of the Court by using the E-Filing Portal, which will send a notice of
electronic filing to all parties on the attached Service List.
MOODY & GRAF, P.A.
La Cheley Ge Mundy, Gr
CHESLEY G. MOODY, JR., ESQ
Florida Bar No.: 544426
MAI M. LE, ESQ.
Florida Bar No.: 112592
1101 N. Lake Destiny Rd., Suite 200
Maitland, FL 32751
Telephone: (407) 755-6900
Facsimile: (407) 755-6913
moody(@moodygraf.cor
mle@moodyegraf.com
kpollak@moodyegraf.com
tdixon@moodygraf.com
Counsel for Premier Plastering of Central Florida, Inc.
SERVICE LIST
Allana D.E. Smith, Esq. Lannie D. Hough, Jr., Esq.
Evan J. Small, Esq. Robin H. Leavengood, Esq.
Nicholas B. Vargo, Esq. James Michael Walls, Esq.
Phillip E. Joseph, Esq. Brian C. Porter, Esq.
BALL JANIK LLP CARLTON FIELDS, P.A.
201 East Pine Street, Suite 600 4221 W. Boy Scout Blvd.
Orlando, FL 32801 Tampa, FL 33607
Phone: 407.455.5664 Phone: 813.223.7000
pjosep! alljanik.com lhough@ecarltonfields.com
esmall@balljanik.com nbonilla@calrtonfields.com
nvargo@balljanik.com ywilliams@carltonfields.com
smith@balljanik.com rleavengood@carltonfields.com
ypalmer@ballianik.com brosa@carltonfields.com
cbetancourt@balljanik.com bporter@carltonfields.com
nwise@ballianik.com jcostello@carltonfields.com
dmmiksell@balljanik.com mwalls@carltonfields.com
orlandodocket@balljanik.com Counsel for Royal Oak Homes, LLC
Counsel for Plaintiff
Thamir A.R. Kaddouri, Jr., Esq. Paul Sidney Elliott, Esq.
Penelope T. Rowlett, Esq. P.O. Box 274204
Beth Ann Tobey, Esq. Tampa, FL 33688
LAW OFFICE OF THAMIR A.R. KADDOURI, Phone: 813.265.1314
JR. P.A. pse@psejd.com
3220 West Cypress Street
Tampa, FL 33607 Co-Counsel for Hugh MacDonald Construction,
Phone: 813.879.5752 Ine.
Thamir.kaddouri@tampalaw.com
service(@tampalaw.cory Denise M. Anderson, Esq.
beth.tobey@tampalaw.com Ashley M. Mattingly, Esq.
Counsel for Imperial Building Corporation BUTLER WEIHMULLER KATZ CRAIG LLP
400 N. Ashley Dr., Suite 2300
Tampa, FL 33602
Phone: 813.281.1900
danderson@butler.legal
mattingly@butler.legal
.
acobs(@butler.legal
jorge@butler legal
Co-Counsel for Hugh MacDonald Construction,
Ine.
Peter J. Kapsales, Esq. Denise M. Anderson, Esq.
Margaret M. Efta, Esq. Kate F. Gaset, Esq.
MILNE LAW GROUP, P.A. BUTLER WEIHMULLER KATZ CRAIG LLP
301 E. Pine Street, Suite 525 400 N. Ashley Drive, Suite 2300
Orlando, FL 32801 Tampa, FL 33602
Phone: 321.558.7700 danderson@butler legal
pkapsales@milnelawgroup.com kgaset@butler. legal
mefta@ nelawgroup.com dwhite@butler.legal
eservice@milnelawgroup.com krieck@pbutler.legal
Counsel for Weathermaster Building Products, jorge@butler legal
Inc. Counsel for Don King’s Concrete, Inc.
Timothy C. Ford, Esq. Jayne Ann Pittman, Esq.
Andrew E. Holway, Esq. Natalie C. Fischer, Esq.
HILL WARD HENDERSON CONROY SIMBERG
101 E. Kennedy Blvd., Suite 3700 Two South Orange Ave., Suite 300
Tampa, FL 33602 Orlando, FL 32801
Tim.ford@hwhlaw.com Phone: 407.649.9797
Andrew, holway@hwhlaw.com & erviceor \@conroysimberg. com
Tracy.coale@hwhlaw.com jpittman@conroysimberg.com
Kathy.wernsing@hwhlaw.com mimaitland. conroysimberg.com
Derrick.calandra@hwhlaw.com nfischer@conroysimberg.com
Counsel for Weintraub Inspections & Forensics, Counsel for Advanced Wrapping and Concrete
Inc. n/k/a Weintraub Engineering and Solutions of Central Florida, Inc.
Inspections, Inc.
Bruce R. Calderon, Esq. Eric J. Netcher, Esq.
D. Bryan Hall, Esq. WALKER, REVELS, GRENINGER &
Audra R. Creech, Esq. NETCHER PLLC
MILBER MAKRIS PLOUSADIS & SEIDEN, 189 S. Orange Ave., Suite 1830
LLP Orlando, FL 32801
1900 NW Corporate Blvd. Phone: 407.789.1830
East Tower, Suite 440 snetcher@wren-law.con
Boca Raton, FL 33431 hpayesh@wren-law.com
Phone: 561.994.7310 Counsel
for All Glass Installation Corp.
bealderon@milbermakris.com
dhili@milbermakris.com
acreech@milbermakris.com
SCTE COM OCT Mas. LOM
kmedowell@milbermakris.com
Counsel for Brown + Company Architecture, Inc.
S. Scott Ross, Esq. Vicki Lambert, Esq.
GROELLE & SALMON, P.A. Alec Masson, Esq.
1715 N. Westshore Blvd., Suite 320 LUKS, SANTANIELLO, PETRILLO & COHEN
Tampa, FL 33607 201 S. Orange Ave., Suite 400
Phone: 813.846.7200 Orlando, FL 32801
gstcourtdocs@gspalaw.com Phone: 407.540.9170
SrOss: @gspala wW.com Luksorl-pleadings@|s-law.com
cebanks@gspalaw.com amason@insurancedefense.net
meoleman@gspalaw.com ipestonit@insurancedefense.net
Counsel for Helberg Enterprises, LLC Co-Counsel for Casey Hawkins Glass, Inc.
Michael D. Ruel, Esq.
Kyle NeNeal, Esq.
GALLOWAY, JOHNSON, TOMPKINS, BURR
& SMITH, P.L.C.
400 N. Ashley Dr., Suite 1000
Tampa, FL 33602
Phone: 813.977.1200
tampaservbice@gallowaylawfirm.com
mruel@gallowaylawfirm.com
kmeneal@gallowaylawfirm.com
Co-Counsel for Casey Hawkins Glass, Inc.
Andrew T. Marshall, Esq. Bruce R. Calderon, Esq.
HAMILTON, PRICE & MARSHALL, P.A. D. Bryan Hill, Esq.
2400 Manatee Ave. W. Audra R. Creech, Esq.
Bradenton, FL 34205 MILBER MAKRIS PLOUSADIS & SEIDEN,
Phone: 941.748.0550 LLP
andrew@hamiltonpricelaw.com 1900 NW Corporate Blvd.
nancy(@hamultonpricelaw.com East Tower, Suite 440
kelsey@hamiltonpricelaw.com Boca Raton, FL 33431
Counsel for T&M Construction of Sanford, Inc. Phone: 561.994.7310
bealderon@milbermakris.com
dh milbermak Om
acrece: CHMAaKTIS.COM
Counsel for Brown + Company Architecture, Inc.
Cole J. Copertino, Esq. Joseph L. Zollner, Esq.
WRIGHT, FULFORD, MOORHEAD & BROWN. LAW OFFICE OF AMY L. WARPINSKI
P.A. P.O, Box 7217
505 Maitland Blvd., Suite 1000 London, KY 40742
Altamonte Springs, FL 32701 floridacdiegalmail@libertymutual.com
Phone: 407.425.0234 joseph.zollner@libertymutual.com
copertino@wimblaw.coim Counsel for Lios Concrete Corp
cbraungart@wfmblaw.com
twilliams@wfmblaw.com
Counsel for Well Hung Windows & Doors
Preview
Filing # 129173062 E-Filed 06/21/2021 03:28:10 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, CASE NO.:2020-CA-002942 Plaintiff, V. ROYAL OAK HOMES, LLC, A FLORIDA LIMTIED LIABILTY COMPANY; 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., 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 ARCHITECHURE, INC., A FLORIDA CORPORATION; Defendants. / ROYAL OAK HOMES, LLC, A FLORIDA LIMITED LIABILITY COMPANY, Crossclaim Plaintiff, Vv. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., A FLORIDA CORPORATION; DON KING’S CONCRETE, INC., A FLORIDA CORPORATION; IMPERIAL FLORIDA CORPORATION, A FLORIDA CORPORATION; PREMIER PLASTERING OF CENTRAL FLORIDA, INC., A FLORIDA CORPORTION; WEATHERMASTER BUILDING PRODUCTS, INC., A FLORIDA CORPORATION; WEINTRAUB INSPECTIONS & FORENSICS, INC., N/K/A WIENTRAUB ENGINEERING AND INSEPCTIONS, INC.; WOLF’S IRRIGATION & LANDSCAPING, INC., A FLORIDA CORPORATION; BROWN+COMPANY ARCHITECHTURE, INC., A FLORIDA CORPORATION; Crossclaim Defendants. / WEATHERMASTER BUILDING PRODUCTS, INC., A FLORIDA CORPORATION; Third-Party Plaintiff, Vv. ALL GLASS INSTALLATION CORP., A FLORIDA CORPORATION; CASEY HAWKINS GLASS, INC., A FLORIDA CORPORATION; DEAN NESBIT, LLC, A FLORIDA LIMITED LIABILITY COMPANY; HOBBIT WINDOWS, LLC, A FLORIDA LIMITED LIABILITY COMPANY; T&M CONSTRUCTION OF SANFORD, INC., A FLORIDA CORPORATION; AND WELL HUNG WINDOWS & DOORS, LLC, A FLORIDA LIMITED LIABILITY COMPANY; Third-Party Defendants PREMIER PLASTERING OF CENTRAL FLORIDA, INC.’S ANSWER AND AFFIRMATIVE DEFENSES TO ROYAL OAK HOMES, LLC’S AMENDED CROSSCLAIM COMES NOW the Defendant/Crossclaim Defendant, PREMIER PLASTERING OF CENTRAL FLORIDA, INC. (“PREMIER”), by and through its undersigned counsel, and pursuant to the Florida Rules of Civil Procedure 1.110, and hereby files this Answer and Affirmative Defenses to Defendant/Crossclaim Plaintiff's, ROYAL OAK HOMES, LLC (“Royal Oak”), Amended Crossclaim, and states the following: Jurisdiction and Venue Without knowledge, therefore denied. Admitted for jurisdictional purposes only, otherwise denied. Without knowledge, therefore denied. 4 PREMIER admits it conducted business in Osceola County, Florida. Otherwise, without knowledge, therefore denied. Parties 5.—9. Without knowledge, therefore denied. 10. PREMIER admits it is or was a Florida corporation authorized to do business in Florida with its principal place of business in Chuluota, Florida. PREMIER is without knowledge regarding the remaining allegations in paragraph 10 of the Amended Crossclaim, therefore denied. 11-14. Without knowledge, therefore denied. General Allegation 15. As to PREMIER, denied. Otherwise, without knowledge, therefore denied. 16. As to PREMIER, the contract speaks for itself, otherwise denied. As to the other Crossclaim Defendants, PREMIER is without knowledge, therefore denied. 17. As to PREMIER, denied. As to the other Crossclaim Defendants, PREMIER is without knowledge, therefore denied. 18. Without knowledge, therefore denied. Counts One Through Sixteen 19.- 141. Counts One through Sixteen (i.e., paragraphs 19 through 141) of the Amended Crossclaim do not pertain to and do not seek affirmative relief against PREMIER, and accordingly no response to the allegations of said Counts are required of PREMIER. However, should the allegations of Counts One through Sixteen be deemed to pertain or seek to establish any basis for the imposition of liability against PREMIER, PREMIER denies each and every allegation contained therein. Count Seventeen — Breach of Contract As to Premier Plastering of Central Florida, Inc. n/k/a TGK Stucco, Ine. 141. PREMIER re-alleges its responses to the allegations contained in paragraphs 1 — 18, above, as if fully restated herein. 142. ROYAL OAK’s Amended Crossclaim speaks for itself, otherwise denied. PREMIER denies the documents attached as Exhibit F constitute a “contract between Premier and Royal Oak.” 143 Denied. 144 Plaintiff's Amended Complaint speaks for itself, otherwise denied. 145 Denied. 146, Denied. 147, Without knowledge, therefore denied. 148, Without knowledge, therefore denied. 149, Without knowledge, therefore denied. 150. PREMIER is without knowledge regarding Royal Oak’s retention of Carlton Fields, P.A. therefore denied. Otherwise, denied. 151. Denied. Count Eighteen — Negligence: As to Premier Plastering of Central Florida, Inc. n/k/a TGK Stucco, Inc. 152. PREMIER te-alleges its responses to the allegations contained in paragraphs 1-18, above, as if fully restated herein. 153. Without knowledge, therefore denied. 154, Denied. 155. Denied. Count Nineteen — Statuto Cause of Action Pursuant to § 553.84, Fla. Stat. As to Premier Plastering of Central Florida, Inc. n/k/a TGK Stucco, Inc. 156. PREMIER re-alleges its responses to the allegations contained in paragraphs 1-18, above, as if fully restated herein. 157. Denied. 158, Without knowledge, therefore denied. 159, Plaintiff's Amended Complaint speaks for itself, otherwise denied. 160. Denied. 161 Denied. 162. Denied. 163 Denied. Counts Twenty Through Thirty-On 164. — 260. Counts Twenty through Thirty-One (i.e., paragraphs 164 through 260) of the Crossclaim do not pertain to and do not seek affirmative relief against PREMIER, and accordingly no response to the allegations of said Counts are required of PREMIER. However, should the allegations of Counts Twenty through Thirty-One be deemed to pertain or seek to establish any basis for the imposition of liability against PREMIER, PREMIER denies each and every allegation contained therein. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that PREMIER is entitled to an apportionment of damages in relation to the degree of fault, if any, of all parties, entities, or persons (named in this action or unnamed), pursuant to section 768.81, Florida Statutes, and the principles of law set forth by Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993). PREMIER specifically names each and every party to this action, and any affiliates of the aforementioned, and any other persons or entities involved with the construction of the Project, whose identity remains unknown, who were negligent and at fault for any damages proven by ROYAL OAK and Plaintiff. PREMIER further reserves the rights to supplement these Affirmative Defenses as discovery progresses in this action. SECO! AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and the Plaintiff's claims are barred because PREMIER followed the plans and specifications in performing its work on the Project such that PREMIER cannot be held liable for any loss or damages resulting from defective plans and specifications and ROYAL OAKS’s and the Plaintiff's claims are therefore barred by the doctrine espoused under United States v. Spearin, 248 U.S. 132 (1918) and its progeny. THIRD AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK had a duty to mitigate its damages, and any recovery by ROYAL OAK in this action should be reduced to the extent which ROYAL OAK failed to mitigate its damages. FOURTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that any alleged defects or deficiencies in any work performed by PREMIER at the Project are a result of a lack of proper maintenance, abuse, or neglect by the Plaintiff and/or ROYAL OAK, rather than defective materials or original work performed by PREMIER. FIFTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims may be barred or limited by spoliation of evidence to the extent ROYAL OAK and/or the Plaintiff engaged in repairs and other activities without notice to PREMIER that disturbed the original conditions of the Project. SIXTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that to the extent other parties or persons (including the Plaintiff, ROYAL OAK, Defendants, and/or Crossclaim Defendants) subsequently modified or altered the work of PREMIER, PREMIER cannot be held liable. SEVENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and the Plaintiffs claims are barred, in whole or in part, to the extent that the alleged damages were caused by intervening or superseding causes over which PREMIER had no control. EIGHTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s alleged damages are barred to the extent they are speculative, excessive, remote, contingent, prospective, uncertain, improbable, not reasonably ascertainable, were unforeseeable, and do not logically, naturally, probably, or proximately flow from any alleged breach of duty. NINTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that the designer of the Project was charged with the non-delegable duty of ensuring that the design conformed with and met all applicable laws, regulations and building codes, as required by Atlantic National Bank of Jacksonville v. Modular Age, Inc., 363 So. 2d 1152 (Fla. lst DCA 1978). PREMIER followed the plans and specifications in performing its work on the Project, and to the extent that the design or specified materials do not conform with all applicable laws, regulations, or building codes, PREMIER is not legally responsible for same. TENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that any damages suffered by ROYAL OAK, if any, were the result of acts of nature over which PREMIER had no control. ELEVENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and the Plaintiff's claims are barred, in whole or in part, to the extent a lack of causal relationship exists between the alleged damages and PREMIER’s work. TWELFTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that to the extent the remediation proposed or performed by ROYAL OAK or the Plaintiff, has resulted, or will result in economic waste, PREMIER is not legally responsible for economically wasteful remediation to the Project. See Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982). THIRTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s and/or the Plaintiff's damages, if any, are barred and/or must be reduced in accordance with the principles of “first cost” and “betterment,” which consist of costs that have or will result in betterment to the Project beyond what was called for in the applicable plans and specifications. PREMIER cannot be held liable therefor or is entitled to a set-off for the value of such betterment. See Grossman v. Sea Air Towers Ltd., 513 So, 2d 686 (Fla. 3d DCA 1987). FOURTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims must be set off and reduced to the extent ROYAL OAK receives payment or consideration from other parties or non-parties for its alleged damages. FIFTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims are barred by the applicable statute of limitations and repose, as set forth in section 95.11, Florida Statutes. SIXTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that in the event ROYAL OAK prevails on any claims, PREMIER is entitled to a setoff from any and all settlements, releases and/or hold harmless agreements pursuant to section 768.041, Florida Statutes and applicable Florida law. SEVENTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that PREMIER is not liable to ROYAL OAK and/or the Plaintiff because the defects complained of were patent and obvious in nature. See Slavin v. Kaye, 108 So, 2d 462 (Fla. 1959). EIGHTEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that any alleged defects in PREMIER’s scope of work are wholly the result of normal wear and tear and/or damages due to weather conditions or other causes or circumstances. NINETEENTH AFFIRMATIVE DEFENSE PREMIER affirmatively alleges, without admitting liability, that ROYAL OAK’s claims are barred, in whole or in part, by the doctrines of waiver, estoppel, and acquiescence, to the extent ROYAL OAK approved of PREMIER’s work during construction and at completion of the Project. TWENTIETH AFFIRMATIVE DEFENSE To the extent applicable and available to PREMIER, PREMIER hereby incorporates herein all affirmative defenses alleged or to be alleged by all other Crossclaim Defendants to ROYAL OAK’s claims. PREMIER reserves the right to amend its Affirmative Defenses as discovery proceeds in this action and information supporting amendment of its Affirmative Defenses becomes known to PREMIER. WHEREFORE the Defendant/Cross-Defendant, PREMIER PLASTERING OF CENTRAL FLORIDA, INC., respectfully requests this Court to: a) enter judgment in favor of PREMIER PLASTERING OF CENTRAL FLORIDA, INC.; b) deny the relief sought in ROYAL OAK HOMES, LLC’s Crossclaim in its entirety; c) award PREMIER PLASTERING OF CENTRAL FLORIDA, INC., its costs pursuant section 57.041, Florida Statutes; d) award PREMIER PLASTERING OF CENTRAL FLORIDA, INC. is reasonable attorneys’ fees incurred pursuant to the alleged contract; and °) grant PREMIER PLASTERING OF CENTRAL FLORIDA, INC. such other and further relief as this Court deems just and proper. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that on the 21‘ day of June, 2021, I electronically filed the foregoing with the Clerk of the Court by using the E-Filing Portal, which will send a notice of electronic filing to all parties on the attached Service List. MOODY & GRAF, P.A. La Cheley Ge Mundy, Gr CHESLEY G. MOODY, JR., ESQ Florida Bar No.: 544426 MAI M. LE, ESQ. Florida Bar No.: 112592 1101 N. Lake Destiny Rd., Suite 200 Maitland, FL 32751 Telephone: (407) 755-6900 Facsimile: (407) 755-6913 moody(@moodygraf.cor mle@moodyegraf.com kpollak@moodyegraf.com tdixon@moodygraf.com Counsel for Premier Plastering of Central Florida, Inc. SERVICE LIST Allana D.E. Smith, Esq. Lannie D. Hough, Jr., Esq. Evan J. Small, Esq. Robin H. Leavengood, Esq. Nicholas B. Vargo, Esq. James Michael Walls, Esq. Phillip E. Joseph, Esq. Brian C. Porter, Esq. BALL JANIK LLP CARLTON FIELDS, P.A. 201 East Pine Street, Suite 600 4221 W. Boy Scout Blvd. Orlando, FL 32801 Tampa, FL 33607 Phone: 407.455.5664 Phone: 813.223.7000 pjosep! alljanik.com lhough@ecarltonfields.com esmall@balljanik.com nbonilla@calrtonfields.com nvargo@balljanik.com ywilliams@carltonfields.com smith@balljanik.com rleavengood@carltonfields.com ypalmer@ballianik.com brosa@carltonfields.com cbetancourt@balljanik.com bporter@carltonfields.com nwise@ballianik.com jcostello@carltonfields.com dmmiksell@balljanik.com mwalls@carltonfields.com orlandodocket@balljanik.com Counsel for Royal Oak Homes, LLC Counsel for Plaintiff Thamir A.R. Kaddouri, Jr., Esq. Paul Sidney Elliott, Esq. Penelope T. Rowlett, Esq. P.O. Box 274204 Beth Ann Tobey, Esq. Tampa, FL 33688 LAW OFFICE OF THAMIR A.R. KADDOURI, Phone: 813.265.1314 JR. P.A. pse@psejd.com 3220 West Cypress Street Tampa, FL 33607 Co-Counsel for Hugh MacDonald Construction, Phone: 813.879.5752 Ine. Thamir.kaddouri@tampalaw.com service(@tampalaw.cory Denise M. Anderson, Esq. beth.tobey@tampalaw.com Ashley M. Mattingly, Esq. Counsel for Imperial Building Corporation BUTLER WEIHMULLER KATZ CRAIG LLP 400 N. Ashley Dr., Suite 2300 Tampa, FL 33602 Phone: 813.281.1900 danderson@butler.legal mattingly@butler.legal . acobs(@butler.legal jorge@butler legal Co-Counsel for Hugh MacDonald Construction, Ine. Peter J. Kapsales, Esq. Denise M. Anderson, Esq. Margaret M. Efta, Esq. Kate F. Gaset, Esq. MILNE LAW GROUP, P.A. BUTLER WEIHMULLER KATZ CRAIG LLP 301 E. Pine Street, Suite 525 400 N. Ashley Drive, Suite 2300 Orlando, FL 32801 Tampa, FL 33602 Phone: 321.558.7700 danderson@butler legal pkapsales@milnelawgroup.com kgaset@butler. legal mefta@ nelawgroup.com dwhite@butler.legal eservice@milnelawgroup.com krieck@pbutler.legal Counsel for Weathermaster Building Products, jorge@butler legal Inc. Counsel for Don King’s Concrete, Inc. Timothy C. Ford, Esq. Jayne Ann Pittman, Esq. Andrew E. Holway, Esq. Natalie C. Fischer, Esq. HILL WARD HENDERSON CONROY SIMBERG 101 E. Kennedy Blvd., Suite 3700 Two South Orange Ave., Suite 300 Tampa, FL 33602 Orlando, FL 32801 Tim.ford@hwhlaw.com Phone: 407.649.9797 Andrew, holway@hwhlaw.com & erviceor \@conroysimberg. com Tracy.coale@hwhlaw.com jpittman@conroysimberg.com Kathy.wernsing@hwhlaw.com mimaitland. conroysimberg.com Derrick.calandra@hwhlaw.com nfischer@conroysimberg.com Counsel for Weintraub Inspections & Forensics, Counsel for Advanced Wrapping and Concrete Inc. n/k/a Weintraub Engineering and Solutions of Central Florida, Inc. Inspections, Inc. Bruce R. Calderon, Esq. Eric J. Netcher, Esq. D. Bryan Hall, Esq. WALKER, REVELS, GRENINGER & Audra R. Creech, Esq. NETCHER PLLC MILBER MAKRIS PLOUSADIS & SEIDEN, 189 S. Orange Ave., Suite 1830 LLP Orlando, FL 32801 1900 NW Corporate Blvd. Phone: 407.789.1830 East Tower, Suite 440 snetcher@wren-law.con Boca Raton, FL 33431 hpayesh@wren-law.com Phone: 561.994.7310 Counsel for All Glass Installation Corp. bealderon@milbermakris.com dhili@milbermakris.com acreech@milbermakris.com SCTE COM OCT Mas. LOM kmedowell@milbermakris.com Counsel for Brown + Company Architecture, Inc. S. Scott Ross, Esq. Vicki Lambert, Esq. GROELLE & SALMON, P.A. Alec Masson, Esq. 1715 N. Westshore Blvd., Suite 320 LUKS, SANTANIELLO, PETRILLO & COHEN Tampa, FL 33607 201 S. Orange Ave., Suite 400 Phone: 813.846.7200 Orlando, FL 32801 gstcourtdocs@gspalaw.com Phone: 407.540.9170 SrOss: @gspala wW.com Luksorl-pleadings@|s-law.com cebanks@gspalaw.com amason@insurancedefense.net meoleman@gspalaw.com ipestonit@insurancedefense.net Counsel for Helberg Enterprises, LLC Co-Counsel for Casey Hawkins Glass, Inc. Michael D. Ruel, Esq. Kyle NeNeal, Esq. GALLOWAY, JOHNSON, TOMPKINS, BURR & SMITH, P.L.C. 400 N. Ashley Dr., Suite 1000 Tampa, FL 33602 Phone: 813.977.1200 tampaservbice@gallowaylawfirm.com mruel@gallowaylawfirm.com kmeneal@gallowaylawfirm.com Co-Counsel for Casey Hawkins Glass, Inc. Andrew T. Marshall, Esq. Bruce R. Calderon, Esq. HAMILTON, PRICE & MARSHALL, P.A. D. Bryan Hill, Esq. 2400 Manatee Ave. W. Audra R. Creech, Esq. Bradenton, FL 34205 MILBER MAKRIS PLOUSADIS & SEIDEN, Phone: 941.748.0550 LLP andrew@hamiltonpricelaw.com 1900 NW Corporate Blvd. nancy(@hamultonpricelaw.com East Tower, Suite 440 kelsey@hamiltonpricelaw.com Boca Raton, FL 33431 Counsel for T&M Construction of Sanford, Inc. Phone: 561.994.7310 bealderon@milbermakris.com dh milbermak Om acrece: CHMAaKTIS.COM Counsel for Brown + Company Architecture, Inc. Cole J. Copertino, Esq. Joseph L. Zollner, Esq. WRIGHT, FULFORD, MOORHEAD & BROWN. LAW OFFICE OF AMY L. WARPINSKI P.A. P.O, Box 7217 505 Maitland Blvd., Suite 1000 London, KY 40742 Altamonte Springs, FL 32701 floridacdiegalmail@libertymutual.com Phone: 407.425.0234 joseph.zollner@libertymutual.com copertino@wimblaw.coim Counsel for Lios Concrete Corp cbraungart@wfmblaw.com twilliams@wfmblaw.com Counsel for Well Hung Windows & Doors