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Filing # 192566998 E-Filed 02/22/2024 10:29:51 PM
IN THE CIRCUIT COURT OF
THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA
COUNTY, FLORIDA
VILLAS AT EMERALD LAKE Case No.: 2020-CA-002942
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v.
ROYAL OAK HOMES, LLC, a Florida
limited liability company;
Defendants.
___________________________________/
And All Related Actions.
___________________________________/
PLAINTIFF’S RESPONSE IN OPPOSITION TO ROYAL OAK
HOMES, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
TECHNICAL BUILDING CODE VIOLATIONS AND HYPOTHETICAL,
SPECULATIVE, FUTURE DAMAGES AND INCORPORATED
MEMORANDUM OF LAW
Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (the
“Association”), by and through undersigned counsel, and pursuant to Fla. R. Civ. P.
1.510, hereby files its Opposition (the “Opposition”) to the Motion for Partial
Summary Judgment on Alleged Technical Building Code Violations and
Hypothetical, Speculative Future Damages (Doc. No. 927) (“Motion”), filed by
Defendant Royal Oak Homes, LLC’s (“ROH”), and states as follows:
I. SUMMARY OF ARGUMENT
ROH seeks summary judgment against the Association as to its claims for
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Violation of the Florida Building Code pursuant to the cause of action under chapter
553.84, Florida Statutes. ROH argues that the Association fails to provide sufficient
record evidence that it: (1) has discovered defects in the roof installations; and (2)
that those specific defects have caused damage. ROH has not met its burden in
arguing there is no issue of genuine fact as to whether the Association can prove its
claims for violation of the Florida Building Code because: (1) the Association’s
expert identified Florida Building Code violations in the roof installations; (2) both
the Association and ROH’s expert identified damage related to the defective roof
installations; and (3) the damages are not speculative as the Association’s corporate
representative testified regarding performing necessary roof repairs. As ROH fails
to prove there is no genuine issue of material fact, its Motion should be denied.
II. BACKGROUND AND INTRODUCTION
1. The instant case arises out of construction and design defects that exist
at the Villas at Emerald Lake Townhomes, located in Osceola County, Florida (the
“Community”).
2. The Villas at Emerald Lake townhome community contains 12 two-
story residential buildings, comprised of 88 individual townhomes, as well as a
clubhouse and other common areas. See Compl. ¶ 39; see also the operative Second
Am. Compl., ¶¶ 40-41.
3. ROH constructed and developed 10 buildings comprised of 76 units
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(units 110-149; and 162-197) within the Community of the townhomes (“Project”).
See Compl., ¶ 41 and Compl. Fn. 2.; see also Second Am. Compl., ¶ 42; and Second
Am. Compl. Fn. 2.
4. ROH admitted it contracted with independent contractors to construct
the Community. ROH also admits the size and composition of the Community. See
ROH’s Answer, ¶¶ 13, 41, and 43.
5. As the developer, ROH owed a statutory duty1 to the public (to whom
it marketed the townhomes), and particularly to the Townhome purchasers (who
make up the Association) to comply with the Florida Building Code (“FBC” or
“Code”).
6. Further, as the licensed general contractor and permit applicant, ROH
owed a common law duty to supervise, direct, and manage the construction services
at the Community in a non-negligent manner, including compliance with the FBC,
plans, specifications, industry standards, and in a good and workmanlike manner.2
7. The Project was ultimately constructed with numerous Code violations.
8. On November 23, 2020, the Association filed its initial Complaint in
this action, which asserts three causes of action against ROH for: (i) Negligence and
Vicarious Liability (“Count I”); (ii) Breach of the FBC (“Count II”); and (iii) Breach
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Under § 553.84, Fla. Stat.
2
Plaintiff has separately filed a Motion for Summary Judgment against ROH for its Non Delegable Duty to
construct the Project. (Doc. No. 941)
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of Implied Warranties (“Count III”). All Counts relate to the negligent and defective
construction of the Community. See Complaint (Doc. No. 2); see also Second
Amended Complaint (Doc. No. 506).
9. Here, the Association argues that ROH has not met its burden in arguing
there is no issue of genuine fact as to whether the Association can prove its claims
for violation of the Florida Building Code because: (1) the Association’s expert
identified FBC violations in the roof installations; (2) both the Association and
ROH’s expert identified damage related to the defective roof installations; and (3)
the damages are not speculative as the Association’s corporate representative
testified regarding performing necessary roof repairs.
10. Accordingly, ROH fails to meet its burden because the “court must
draw every inference in favor of the non-moving party [the Association] when
considering whether a genuine issue of material fact exists. . .” Allen v. Board of
Public Educ. For Bibb Cnty., 495 F. 3d 1306, 1313 (11th Cir. 2007) (emphasis
added).
III. MEMORANDUM OF LAW
A. Summary Judgment Standard.
Summary judgment is only appropriate where the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact, and that the movant
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is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
An issue of fact is “material” if it is a legal element of the claim under
applicable substantive law which might affect the outcome of the case.
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson
Foods, 121 F.3d 642, 646 (11th Cir.1997). An issue of fact is “genuine”
if the record taken as a whole could lead a rational trier of fact to find
for the non-moving party. Allen, 121 F.3d at 646. On a motion for
summary judgment, the Court must view all the evidence and all
factual inferences drawn therefrom in the light most favorable to
the non-moving party, and determine whether that evidence could
reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen,
121 F.3d at 646. While the burden on the movant is great, the opposing
party has a duty to present affirmative evidence in order to defeat a
properly supported motion for summary Judgment. Anderson, 477
U.S. at 252.
Downs v. U.S., No. 06-20861-CIV, 2007 WL 842136 at *3 (S.D. Fla. Mar. 20, 2007).
(Emphasis added).
Summary judgment is only appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fla. R. Civ. P. 1.510(a). A dispute is genuine “if the evidence is such
that a reasonable jury could return a verdict for the non-moving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect
the outcome of the suit under the governing law.” Id. Importantly, “courts are
required to view the facts and draw all reasonable inferences in the light most
favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550
U.S. 372, 378 (2007). And “if there is a conflict between the parties’ allegations or
5
evidence, the non-moving party’s evidence is presumed to be true and all reasonable
inferences must be drawn in the non-moving party’s favor.” Allen v. Bd. of Pub.
Educ. for Bibb County, 495 F.3d 1306, 1314 (11th Cir. 2007). ROH has failed to
show there is no genuine issue of material fact as to the existence of Florida Building
Code violations and resulting damage and therefore, its Motion should be denied.
B. Section 553.84 of the Florida Statutes.
Under Florida law, a Plaintiff can bring a cause of action:
“Notwithstanding any other remedies available, any person
or party, in an individual capacity or on behalf of a class of
persons or parties, damaged as a result of a material
violation of this part or the Florida Building Code has a
cause of action in any court of competent jurisdiction against
the person or party who committed the material violation;
§ 553.84, Fla. Stat. (2023) (emphasis added).
Of note, section 553.84, Florida Statutes, was amended in April of 2023 to
include the phrase “material violation” and to add an additional sentence stating,
“For purposes of this section, the term ‘material violation’ means a Florida
Building Code violation that exists within a completed building, structure, or
facility which may reasonably result, or has resulted, in physical harm to a person
or significant damage to the performance of a building or its systems.” Id.
(emphasis added); c.f. § 553.84, Fla. Stat. (2001) (“Notwithstanding any other
remedies available, any person or party, in an individual capacity or on behalf of a
class of persons or parties, damaged as a result of a violation of this part or the
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Florida Building Code, has a cause of action in any court of competent jurisdiction
against the person or party who committed the violation; however, if the person or
party obtains the required building permits and any local government or public
agency with authority to enforce the Florida Building Code approves the plans, if
the construction project passes all required inspections under the code, and if there
is no personal injury or damage to property other than the property that is the subject
of the permits, plans, and inspections, this section does not apply unless the person
or party knew or should have known that the violation existed.”) (emphasis added).
With its amendment, the Florida legislature made it clearer, arguably more
difficult, and more in line with the definition of a Material Code Violation for a party
to be able to bring a claim under section 553.84 of the Florida Statutes.
In its Motion, as detailed further below, ROH completely disregards any
testimony regarding whether a material violation of the building code existed.
Instead, it focuses on a “Non-Defect List” later identified by Marcon. Motion, p. 8.
Because it leaves these important details and prerequisites out of its Motion – and
those matters prevent partial summary judgment here – ROH’s Motion should be
denied.
C. Material Code Violations Under the Florida Building Code.
The FBC defines a Material Code Violation as “a violation that exists within
a completed building, structure or facility which may reasonably result, or has
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resulted, in physical harm to a person or significant damage to the performance of
a building or its systems.” Fla. Build. Code Residential, 5th Edition, Section R202,
Definitions, p. 2.9. Contrarily, the FBC does not enumerate a definition for a
“technical code violation” as described by ROH. Id.
IV. ARGUMENT
A. Record Evidence Supports the Existence of Florida Building Code
Violations
The Motion should be denied because, despite ROH’s assertions in its Motion,
the Association has put forth evidence of Florida Building Code violations and
resulting damage in the roof construction. Here, all ROH has shown that the record
evidence provides the typical “battle of the experts” scenario, wherein both Parties
proffer conflicting evidence, creating a genuine issue of material fact.
Second, the Association has also put forth evidence of necessary temporary
repairs that the Association has performed on the roofs at the Community, providing
evidence of resulting damages at the roofs. Further, ROH’s assertion that the
Association’s damages are speculative ignores the fact that the Florida Building
anticipates the existence of (“Material Code Violation”) which may either have
already manifested in damage or will reasonably cause future damage. ROH’s
arguments that the Association’s damages are speculative are unfounded and miss
the issue critical to the Association’s claims under section 553.84, Florida Statutes,
whether there is a genuine issue of fact whether Material Code Violations exist that
8
either have resulted or reasonably will result in damages to the Project. Further,
damages are an issue to be presented to the trier of fact. Therefore, ROH’s Motion
should be denied.
i. Plaintiff’s expert has provided testimony, photos, reports, and opinions
evidencing the existence of a genuine issue of material fact whether there
are Florida Building Code violations in the roofs at the Project.
In furtherance of its investigation of the construction defects throughout the
Community, the Association retained expert, Marcon Forensics, LLC (“Marcon”), a
building exterior and construction forensic investigation company with extensive
experience performing evaluations and repairs to structures and building exteriors.
See generally, Deposition Testimony of Felix Martin, P.E. (“Martin”), Composite
Ex. A; see also Curriculum Vitae of Felix Martin, P.E., Exhibit B. Marcon
conducted an extensive investigation of the conditions of the townhomes at the
Project, including a visual examination of all 76 townhomes at issue and invasive
testing at numerous locations. Id. at Vol I, p. 48:24; Marcon identified numerous
exterior building defects which correlate with water intrusion related damages. See
generally, Ex. A. These exterior defects include the improper installation of stucco,
windows and doors, flashings, roofing, and weather resistive barrier. Id. Marcon
concluded that defects and deficiencies in the exteriors of the Project violate the
Florida Building Code, requiring that the exterior walls provide a weather-resistant
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exterior wall envelope, including properly waterproofed and constructed roofs. Id.
at Vol. I, pp. 183:25-188:6.
Marcon identified seven building code violations related to the construction
of the roofs at the Project and testified to the same. See Ex. A, and Report of Marcon
Forensics, LLC, attached as Exhibit C. The building code violations identified at
the roof constructions at the Project are as follows:
Defect Code Provision
Lack of 4-inch roof cement over the roof 2010 Florida Residential Code: R905.2.8.5
drip edge flange. 2014 Florida Residential Code: R905.2.8.5
The roof shingles do not overhang the 2010 Florida Residential Code: R903.1
roof eave by the minimum requisite ½ 2014 Florida Residential Code: R903.1
inch, nor are they trimmed flush with the
“D” style eave flashing as required by
the Certainteed manufacturing
installation instructions.
Starter shingles were nailed through the 2010 Florida Residential Code: R903.1
eave flashing: the starter strip fasteners 2014 Florida Residential Code: R903.1
were installed less than 3 inches from
the edge of the roof.
The roof underlayment was not turned 2010 Florida Residential Code: R903.1
up the wall at the roof-to-wall 2014 Florida Residential Code: R903.1
intersection, creating an unsealed
intersection between the wall and the
roof.
The shingles were either installed with 2010 Florida Residential Code: R903.1
less nails than required, or the nails were 2014 Florida Residential Code: R903.1
improperly spaced across the shingle, in
violation of the Certainteed
manufacturing installation instructions.
The shingle fasteners were overdriven, 2010 Florida Residential Code: R903.1
in violation of the Certainteed 2014 Florida Residential Code: R903.1
manufacturing installation instructions.
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This does not properly anchor the
shingle.
Starter shingles were installed without 2010 Florida Residential Code: R903.1
removing the lower tabs, in violation of 2014 Florida Residential Code: R903.1
Certainteed’s installation instructions.
At confined rake terminations, the roof 2010 Florida Residential Code: R903.1
diverter fold was not sealed. 2014 Florida Residential Code: R903.1
See Ex. A and Ex. C.
The 2010 Florida Residential Code (“FRC”) section R905.2.8.5 provides the
following:
The 2014 Florida Residential Code section R905.2.8.5 provides the same
provision as to drip edge installations:
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Martin testified, in support of his opinions provided in the Marcon Report,
that pursuant to Marcon’s investigation, the installation of the drip edge was
defective, in violation of FRC R905.2.8.5, resulting in a system that creates Material
Code Violation of the Florida Building Code. Ex. A, pp. Vol. I. 168:25-169:9;
184:25-185:8; and Vol. III, pp. 486:3-487:13.
Further, Marcon identified the remaining enumerated Material Code
Violations as defects that are noncompliant with the provision of the 2010 and 2014
FRC R903.1. See Ex. A, Vol. I, pp. 171:10-185:8. Both the 2010 and 2014 Florida
Residential Code section R903.1 require that “Roof decks shall be covered with
approved roof coverings secured to the building or structure in accordance with the
provisions of this Chapter. Roof assemblies shall be designed and installed in
accordance with this code and approved manufacturer’s installation instructions
such that the roof assembly shall serve to protect the building or structure.” 2014
Fla. Build. Code Residential, 5th Edition, Section R903.1; see also 2010 Fla. Build.
Code Residential, Section R903.1. Martin’s testimony and report note that, pursuant
to its investigation, each of the identified defects was a Florida Building Code
violation as the conditions either did not (1) comply with the manufacturer’s
installation instructions; and/or (2) serve to protect the buildings at the Project. See
Ex. A and Ex. C.
While ROH asserts that the Association’s expert testimony and opinions are
12
insufficient evidence to prove its claim and that the contradictory opinions of its own
expert proffered in support of its Motion are dispositive on the issue, (see Motion,
p. 9), this same assertion highlights that there is a genuine issue of material fact and
that the “Battle of the Experts” is an issue to be submitted to the trier of fact.
Accordingly, ROH’s Motion must be denied.
B. Record Evidence Supports the Existence of Damages Related to FBC
Violations
As discussed above, the Association has put forth record evidence that its
expert holds opinions regarding the existence Material Code Violations that are
resulting or may reasonably result in damage to the property. Ex. A, pp. Vol. I.
168:25-169:9; 184:25-185:8; and Vol. III, pp. 486:3-487:13. While the Association
with the testimony and findings above shows that it has provided sufficient record
evidence to overcome ROH’s Motion, it further notes that its expert has testified
explicitly regarding the existence of installations performed in violation of the
building code at the Project and resulting damage therefrom.
Martin specifically testified:
13
Ex. A, Vol. I, 184:25-8.
According to Marcon, to correct the deficiencies in the Project are Material
Code Violations and defects in the exterior walls of the Project. Ex. A, pp. Vol. III,
pp. 486:3-487:13. Further, Martin testified that to be able access the damaged areas
of the same, the roofs, as part of the exterior assemblies, must be removed and
replaced to properly repair the damage related to the improper construction of the
same and to properly flash and integrate the roofs with the rest of the building
exterior, as required by the Florida Building Code. Id. Additionally, to perform the
repairs necessary to address the construction defects in the exteriors, including the
defective roof and roof accessory installation, the Association must remove and
perform repairs to the roofs to properly repair the damaged exterior walls and
properly integrate the roofs with the adjacent exterior wall components. Id.
ROH attempts to argue that Marcon’s opinions regarding damages at the
Project are speculative and that there “is no evidence of damage to the lower and
upper roofs installed at the Emerald Lake townhomes.” Motion, p. 18. ROH’s
assertions are incorrect because the Association has testified that it has taken on the
burden of performing temporary repairs to damaged roofs and ROH’s expert himself
has admitted evidence of damage on the roofs. See Deposition Testimony of Randy
Treadwell, Corporate Representative of the Association, Exhibit D, pp.76:9-77:2;
and Deposition Testimony of Brett Newkirk, Expert for ROH, Exhibit E, p. 127:4-
14
19.
i. Material Code Violations and Damages under section 553.84
Pursuant to the 2010 and 2014 Florida Residential codes: a Material Code
Violation is “a violation that exists within a completed building, structure or facility
which may reasonably result, or has resulted, in physical harm to a person or
significant damage to the performance of a building or its systems.” 2014 Fla.
Build. Code Residential, 5th Edition, Section R202, Definitions, p. 2.9 (emphasis
added).
The most imperative consideration regarding the Association’s damages under
§553.84, Fla. Stat., is that the Association has put forth evidence that Material Code
Violations exist at the Project. Ex. A, pp. Vol. III, pp. 486:3-487:13. Here, it is not a
matter of whether the damage exists now or whether the Association’s damages “are
based on speculation or guesswork.” Motion, p. 21. The crux of the issue is that the
Association has put forth evidence that a Material Code Violation exists at the
Project and, by definition, the Florida Building Code anticipates that Material Code
Violations may not presently exhibit damage and that the existence of the Material
Code Violation may reasonably result in damage to the performance of a building or
its systems in the future.
V. CONCLUSION
In the present action, the Association brought claims for violation of the
15
Florida Building Code pursuant to section 553.84, Florida Statutes. ROH attempts
to foreclose the Association’s these claims as they relate to the roof installations but,
the Association is able to provide its own sufficient record evidence to illustrate there
is a genuine issue of material fact as to these claims. For these reasons, the Court
should deny ROH’s Motion.
DATED: This 22nd day of February, 2024.
BALL JANIK LLP
By: /s/ Kasey L. Joyce__
Phillip E. Joseph, FL Bar No. 1000368
Evan J. Small, FL Bar No. 57306
Jeffrey A. Widelitz FL Bar No. 105642
Christopher S. Tribbey, FL Bar No. 1003114
Kasey L. Joyce, FL Bar No. 1024705
201 E Pine Street, Suite 600
Orlando, FL 32801
Telephone: (407) 455-5664
Facsimile: (407) 902-2105
pjoseph@balljanik.com
esmall@balljanik.com
jwidelitz@balljanik.com
ctribbey@balljanik.com
kjoyce@balljanik.com
dtodd@balljanik.com
cbetancourt@balljanik.com
bburton@balljanik.com
orlandodocket@balljanik.com
Counsel for Plaintiff Villas at Emerald Lake
Homeowners Association, Inc.
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CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing has been filed via the Florida Courts
E-Filing Portal on February 22, 2024.
/s/ Kasey L. Joyce
Kasey L. Joyce, Esq.
SERVICE LIST
LUIS PRATS THAMIR A.R. KADDOURI, JR.
LANNIE D. HOUGH, JR. PENELOPE T. ROWLETT
JAMES MICHAEL WALLS BETH ANN TOBEY
ROBIN H. LEAVENGOOD Law Office of Thamir A.R. Kaddouri,
Carlton Fields, P.A. Jr. P.A.
4221 W. Boy Scout Boulevard 3220 West Cypress Street
Tampa, FL 33607-5780 Tampa, FL 33607
(813) 223-7000 (813) 879-5752
lprats@carltonfields.com thamir.kaddouri@tampalaw.org
lhough@carltonfields.com service@tampalaw.org
mwalls@carltonfields.com beth.tobey@tampalaw.org
rleavengood@carltonfields.com
mramos@carltonfields.com Counsel for Defendant, Imperial
nbonilla@carltonfields.com Building Corporation
ejohnson@carltonfields.com
krick@carltonfields.com
Counsel for Defendant, Royal Oak
Homes, LLC
PAUL SIDNEY ELLIOTT PETER J. KAPSALES
P.O. Box 274204 MARGARET M. EFTA
Tampa, FL 33688-4204 Milne Law Group, P.A.
(813) 265-1314 301 E. Pine Street, Suite 525
pse@psejd.com Orlando, FL 32801
(321) 558-7700
17
Counsel for Defendant, Hugh pkapsales@milnelawgroup.com
MacDonald Construction, Inc. (HMC) mefta@milnelawgroup.com
eservice@milnelawgroup.com
DENISE M. ANDERSON
ASHLEY M. MATTINGLY Counsel for Defendant, Weathermaster
Butler Weihmuller Katz Craig LLP Building Products, Inc.
400 N. Ashley Drive, Suite 2300
Tampa, FL 33602
(813) 281-1900
danderson@butler.legal
amattingly@butler.legal
krieck@butler.legal
rjorge@butler.legal
Co-Counsel for Defendant, Hugh
MacDonald Construction, Inc.
DENISE M. ANDERSON ANDREW E. HOLWAY
DAVID A. MERCER J. ROCCO CAFARO
Butler Weihmuller Katz Craig, LLP Hill Ward Henderson
400 N. Ashley Drive, Suite 2300 101 E. Kennedy Blvd., Suite 3700
Tampa, FL 33602 Tampa, FL 33602
danderson@butler.legal (813) 221-3900
dmercer@butler.legal andrew.holway@hwhlaw.com
krieck@butler.legal derrick.calandra@hwhlaw.com
rjorge@butler.legal jill.kuty@hwhlaw.com
tbarry@butler.legal kathy.wernsing@hwhlaw.com
rocco.cafaro@hwhlaw.com
Counsel for Defendant, Don King’s tracy.coale@hwhlaw.com
Concrete, Inc.
Counsel for Defendant/Cross
Defendant, Weintraub Inspections &
Forensics, Inc. n/k/a Weintraub
Engineering and Inspections, Inc.
JAYNE ANN PITTMAN BRUCE R. CALDERON
NATALIE C. FISCHER ALICIA Z. GROSS
Conroy Simberg BARRI A. REISCH
Two South Orange Avenue, Suite 300 Milber Makris Plousadis & Seiden,
Orlando, FL 32801 LLP
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(407) 649-9797 1900 NW Corporate Blvd.
eserviceorl@conroysimberg.com East Tower, Suite 440
jpittman@conroysimberg.com Boca Raton, FL 33431
mmaitland@conroysimberg.com (561) 994-7310
nfischer@conroysimberg.com bcalderon@milbermakris.com
azgross@milbermakris.com
Counsel for Defendant, Advanced breisch@milbermakris.com
Wrapping and Concrete Solutions of kmcdowell@milbermakris.com
Central Florida, Inc. sskowronski@milbermakris.com
Counsel for Defendant/Cross-
Defendant, Brown + Company
Architecture, Inc.
JENNIFER MILLER BROOKS S. SCOTT ROSS
KIRA TSIRING Groelle & Salmon, P.A.
Hamilton, Miller & Birthisel, LLP 1715 N. Westshore Blvd., Suite 320
150 Southeast Second Avenue, Suite Tampa, FL 33607
1200 (813) 849-7200
Miami, FL 33131-2332 gstcourtdocs@gspalaw.com
(305) 379-3686 sross@gspalaw.com
jmiller@hamiltonmillerlaw.com cebanks@gspalaw.com
ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com
jcasaccio@hamiltonmillerlaw.com
Counsel for Third-Party Defendant,
Counsel for Defendant/Cross- Helberg Enterprises, LLC
Defendant, TGK Stucco, Inc.
VICKI LAMBERT ANDREW T. MARSHALL
ALEC MASSON SARA W. MAPES
Luks, Santaniello, Petrillo & Cohen Hamilton, Price & Marshall, P.A.
201 S. Orange Avenue, Suite 400 2400 Manatee Ave. W.
Orlando, FL 32801 Bradenton, FL 34205
(407) 540-9170 (941) 748-0550
luksorl-pleadings@ls-law.com andrew@hamiltonpricelaw.com
amason@insurancedefense.net sara@hamiltonpricelaw.com
jpestonit@insurancedefense.net nancy@hamiltonpricelaw.com
kelsey@hamiltonpricelaw.com
Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com
Casey Hawkins Glass, Inc.
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PHILLIP S. HOWELL Counsel for Third-Party Defendant,
BRENDEN C. COLLINS T&M Construction of Sanford, Inc.
Galloway, Johnson, Tompkins, Burr &
Smith, P.L.C. WILLIAM M. WOODS
400 N. Ashley Dr., Suite 1000 JOSEPH M. CLINE
Tampa, FL 33602 100 S. Missouri Avenue, Suite 201
(813) 977-1200 Clearwater, Fl 33756
tampaservice@gallowaylawfirm.com (727) 799-1229, Ext. 4072
phowell@gallowaylawfirm.com wwoods@willwoodslaw.com
bcollinsl@gallowaylawfirm.com josephc@willwoodslaw.com
marital@willwoodslaw.com
Counsel for Third-Party Defendant, pleadings@willwoodslaw.com
Casey Hawkins Glass, Inc.
Counsel for Third-Party Defendants,
T & M Construction of Sanford, Inc.
and All Glass Installation Corp.
JOSEPH L. ZOLLNER COLE J. COPERTINO
Law Office of Christopher Norris Wright, Fulford, Moorhead & Brown,
PO Box 7217 P.A.
London, KY 40742 505 Maitland Avenue, Suite 1000
(904) 346-5422 Altamonte Springs, FL 32701
floridacdlegalmail@libertymutual.com (407) 425-0234
joseph.zollner@libertymutual.com ccopertino@wfmblaw.com
cbraungart@wfmblaw.com
Counsel for Third-Party Defendant, lwilliams@wfmblaw.com
Lios Concrete Corp
Counsel for Third-Party Defendant,
Well Hung Windows & Doors
MONAL O. ZIPPER CHESLEY G. MOODY, JR.
JENNIFE SHIPPOLE MAI M. LE
Law Office of Jennifer L. Shippole Moody & Graf, P.A.
14050 NW 14th Street, Suite 180 1101 N. Lake Destiny Road, Suite 200
Sunrise, FL 33323 Maitland, FL 32751
(954) 417-3066 Ext. 4645 (407) 755-6900
jlspleadings@fednat.com cmoody@moodygraf.com
mzipper@fednat.com mle@moodygraf.com
jshippole@fednat.com kbraund@moodygraf.com
iperera@moodygraf.com
Counsel for Third-Party Defendant,
Atlantic Concrete Systems, Inc.
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Counsel for Premier Plastering of
Central Florida, Inc. Withdrew for
Premier Plastering only 3.4.2022 &
Defendant/Cross-Defendant, Wolf’s
Irrigation & Landscaping, Inc.
JERRILYNN HADLEY WAYNE M. ALDER
TODD M. LADAUCEUR Fisher Broyles, LLP
Galloway, Johnson, Tompkins, Burr 7668 N. W. 125th Way
and Smith, PLC Pompano Beach, FL 33076
118 E. Garden Street (954) 603-6174
Pensacola, FL 32502 wayne.alder@fisherbroyles.com
(850) 436-7000 wmalder@bellsouthnet.com
tmlconstruction@gallowaylawfirm.com
Counsel for Third-Party Defendant,
Counsel for Third-Party Defendant E.R.O. Construction, Inc. and Well
Hobbit Windows, LLC Done Windows, Inc.
SHAUN M. QUINN
JACKELINE RODRIGUEZ
Hamilton, Miller & Birthisel, LLP
150 S.E. 2nd Avenue, Suite 1200
Miami, FL 33131
(305) 379-3686
squinn@hamiltonmillerlaw.com
jrodriguez@hamiltonmiller.com
Counsel for Defendant/ Cross-
Defendant, Premier Plastering of
Central Florida, Inc.
UNREPRESENTED PARTIES
Expert Painting & Pressure Washing,
Inc.
c/o Richard C. Bates, Registered Agent
3631 Late Morning Cir.
Kissimmee, FL 34744
21
COMPOSITE EXHIBIT “A”
In The Matter Of:
Villas at Emerald Lake Homeowners Association, Inc. v.
Royal Oaks Homes, LLC., et al
Felix Martin
Vol. I
June 15, 2021
Legal Realtime Reporting
622 E. Washington Street
Suite 200
Orlando, Florida 32801
Original File 6-15-21.txt
Min-U-Script® with Word Index
Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
Royal Oaks Homes, LLC., et al June 15, 2021
Page 1 Page 3
1 IN THE CIRCUIT COURT, NINTH 1 APPEARANCES CONTINUED:
JUDICIAL CIRCUIT, IN AND FOR
2 OSCEOLA COUNTY, FLORIDA 2 PETER J. KAPSALES, ESQUIRE
OF: MILNE LAW GROUP, P.A.
3 CASE NO.: 2020-CA-002942-ON 3 301 East Pine Street
Suite 525
4 VILLAS AT EMERALD LAKE 4 Orlando, Florida 32801
HOMEOWNERS ASSOCIATION, APPEARING ON BEHALF OF WEATHERMASTER BUILDING
5 INC., a Florida not for 5 PRODUCTS, INC.
profit corporation,
6 6 ANDREW E. HOLWAY, ESQUIRE
Plaintiff, OF: HILL, WARD, HENDERSON
7 v. 7 101 East Kennedy Boulevard
Suite 3700
8 ROYAL OAK HOMES, LLC, a 8 Tampa, Florida 33602
Florida limited liability APPEARING ON BEHALF OF WEINTRAUB INSPECTIONS &
9 company, et al., 9 FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND
INSPECTIONS, INC.
10 Defendants. 10
______________________________/ D. BRYAN HILL, ESQUIRE
11 11 OF: MILBER, MAKRIS, PLOUSADIS & SEIDEN, LLP
AND RELATED CROSS-ACTIONS. 1900 Northwest Corporate Boulevard
12 _______________________________/ 12 East Tower
Suite 440
13 13 Boca Raton, Florida 33431
APPEARING ON BEHALF OF BROWN + BROWN COMPANY
14 VOLUME I 14 ARCHITECTURE, INC.
(PAGES 1 THROUGH 206)
15 15 ERIC J. NETCHER, ESQUIRE
OF: WALKER, REVELS, GRENINGER & NETCHER, PLLC
16 ZOOM DEPOSITION OF: FELIX MARTIN 16 189 South Orange Avenue
Suite 1830
17 DATE TAKEN: June 15, 2021 17 Orlando, Florida 32801
APPEARING ON BEHALF OF ALL GLASS INSTALLATION
18 TIME: 9:00 a.m. to 5:00 p.m. 18 CORP.
19 PLACE: ALL PARTIES ATTENDED VIA ZOOM 19 R. SCOTT ROSS, ESQUIRE
OF: GROELLE & SALMON, P.A.
20 REPORTED BY: TARA K. SLOCUM, RPR, CRR, CSR 20 1715 North Westshore Boulevard
State of California and Notary Suite 230
21 Public State of Florida 21 Tampa, Florida 33607
APPEARING ON BEHALF OF HELBERG ENTERPRISES, LLC
22 22
ANDREW MARSHALL, ESQUIRE
23 23 OF: HAMILTON, PRICE & MARSHALL, P.A.
2400 Manatee Avenue West
24 24 Bradenton, Florida 34205-4934
APPEARING ON BEHALF OF T&M CONSTRUCTION
25 25
Page 2 Page 4
1 A P P E A R A N C E S: 1 APPEARANCES CONTINUED:
2 NICHOLAS B. VARGO, ESQUIRE 2 NATALIE FISCHER, ESQUIRE
ALLANA SMITH, ESQUIRE OF: CONROY SIMBERG
3 OF: BALL JANIK, LLP 3 Two South Orange Avenue
201 East Pine Street Suite 300
4 Suite 600 4 Orlando, Florida 32801
Orlando, Florida 32801 APPEARING ON BEHALF OF ADVANCED WRAPPING AND
5 APPEARING ON BEHALF OF THE PLAINTIFF 5 CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC.
6 MAI M. LE, ESQUIRE 6 RICHARD LEE RUSSO, ESQUIRE
OF: MOODY & GRAF, P.A. OF: WRIGHT, FULFORD, MOOREHEAD & BROWN
7 1101 North Lake Destiny Road 7 505 Maitland Avenue
Suite 200 Suite 1000
8 Maitland, Florida 32751 8 Altamonte Springs, Florida 32701-6306
APPEARING ON BEHALF OF PREMIER PLASTERING OF APPEARING ON BEHALF OF WELL HUNG WINDOWS AND
9 CENTRAL FLORIDA, INC. 9 DOORS, LLC
10 BETH ANN TOBEY, ESQUIRE 10
OF: LAW OFFICES OF THAMIR A.R. KADDOURI, JR., P.A.
11 3220 West Cypress Street 11
Tampa, Florida 33607
12 APPEARING ON BEHALF OF IMPERIAL BUILDING 12
CORPORATION
13 13
MICHAEL RUEL, ESQUIRE
14 OF: LUKS, SANTANIELLO, PETRILLO & COHEN 14
201 South Orange Avenue
15 Suite 400 15
Orlando, Florida 32801
16 APPEARING ON BEHALF OF CASEY HAWKINS GLASS, INC. 16
17 KATE F. GASET, ESQUIRE 17
OF: BUTLER, WEIHMULLER, KATZ, CRAIG, LLP
18 400 North Ashley Drive 18
Suite 2300
19 Tampa, Florida 33602 19
APPEARING ON BEHALF OF DON KING'S CONCRETE, INC.
20 APPEARING ON BEHALF OF LSH ENTERPRISES, INC. 20
21 JAMES MICHAEL WALLS, ESQUIRE 21
OF: CARLTON FIELDS, P.A.
22 4221 West Boy Scout Boulevard 22
Tampa, Florida 33607-5780
23 APPEARING ON BEHALF OF ROYAL OAK HOMES, LLC 23
24 24
25 25
Min-U-Script® Legal Realtime Reporting (1) Pages 1 - 4
Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I
Royal Oaks Homes, LLC., et al June 15, 2021
Page 5 Page 7
1 C O N T E N T S
1 you. Have you seen this document before?
2 TESTIMONY OF FELIX MARTIN
Direct Examination By Mr. Walls.......................6 2 A Yes.
3 CERTIFICATE OF OATH......................................203
CERTIFICATE..............................................204 3 Q And if we turn to Exhibit A to this
4 ERRATA PAGE..............................................205
NOTIFICATION LETTER......................................206 4 document, it requested a number of documents to be
5 - - - - -
5 provided for your deposition. Did you review this
6 EXHIBITS
6 list of documents?
7 No. 1 - Notice of Deposition...............................6 7 A Yes.
No. 2 - Curriculum Vitae..................................28
8 No. 3 - 4/28/2020 Marcon Engineering Assessment Report....27 8 Q And it's my understanding you have
No. 4 - Marcon Invoice No. 4246...........................29
9 No. 5 - Marcon Invoice No. 4511...........................32 9 provided your job file, which I have. Did you go
No. 6 - 4/2/21 Marcon Engineering Assessment Report.......35
10 No. 7 - Photograph........................................45 10 through this list and make sure that you produced
No. 8 - Marcon Invoice No. 4196...........................60
11 No. 9 - Marcon Invoice No. 4239...........................66 11 everything that you have in connection with this
No. 10- Marcon Construction Defects Investigation
12 Proposal..........................................70 12 list as part of your job file?
No. 11- Marcon Scope of Work by DT Contractor.............77
13 No. 12- Marcon Power Point................................96 13 A Yes.
No. 13- Rain Wand AAMA 501.2-09 Apparatus Calibration
14 Certificate......................................139 14 Q And I am going to go to the next document.
No. 14- Photograph.......................................158
15 15 Do you recognize this document, Mr. Martin?
16 - - - - - 16 A Yes.
17 S T I P U L A T I O N S 17 Q Is this your curriculum vitae?
18 It is hereby agreed and so stipulated by 18 A It is.
and between the parties hereto, through their
19 respective counsel, that the reading and signing of 19 Q And is this an up-to-date version of your
the transcript are expressly RESERVED by the
20 Deponent. 20 curriculum vitae?
21 21 A I think that's the most recent, yes.
22 22 Q I notice there is not a date on it. Do
23 23 you -- how often do you update your CV?
24 24 A Typically about every couple of months.
25 25 Q I want to ask you a few questions about
Page 6 Page 8
1 PROCEEDINGS 1 your CV. I will start with the first page, your
2 * * * * 2 last paragraph on the first page you identify a
3 THE REPORTER: Do you solemnly swear the 3 number of organizations that you are involved with;
4 testimony you are about to give in this 4 do you see that?
5 deposition will be the truth, the whole truth, 5 A Yes.
6 and nothing but the truth? 6 Q And you are a member of the Florida Lath &
7 THE WITNESS: I do. 7 Plaster Bureau?
8 FELIX MARTIN 8 A Yes.
9 having been first duly sworn, testified under oath as 9 Q And when did you become a member of the
10 follows: 10 Florida Lath & Plaster Bureau?
11 DIRECT EXAMINATION 11 A I think that must have been last year
12 BY MR. WALLS: 12 because I just got an invoice from them, like a year
13 Q Good morning, Mr. Martin. 13 ago.
14 Could you please provide your full name 14 Q And what do you have to do to become
Preview
Filing # 192566998 E-Filed 02/22/2024 10:29:51 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE Case No.: 2020-CA-002942 HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. ROYAL OAK HOMES, LLC, a Florida limited liability company; Defendants. ___________________________________/ And All Related Actions. ___________________________________/ PLAINTIFF’S RESPONSE IN OPPOSITION TO ROYAL OAK HOMES, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO TECHNICAL BUILDING CODE VIOLATIONS AND HYPOTHETICAL, SPECULATIVE, FUTURE DAMAGES AND INCORPORATED MEMORANDUM OF LAW Plaintiff, Villas at Emerald Lake Homeowners Association, Inc. (the “Association”), by and through undersigned counsel, and pursuant to Fla. R. Civ. P. 1.510, hereby files its Opposition (the “Opposition”) to the Motion for Partial Summary Judgment on Alleged Technical Building Code Violations and Hypothetical, Speculative Future Damages (Doc. No. 927) (“Motion”), filed by Defendant Royal Oak Homes, LLC’s (“ROH”), and states as follows: I. SUMMARY OF ARGUMENT ROH seeks summary judgment against the Association as to its claims for 1 Violation of the Florida Building Code pursuant to the cause of action under chapter 553.84, Florida Statutes. ROH argues that the Association fails to provide sufficient record evidence that it: (1) has discovered defects in the roof installations; and (2) that those specific defects have caused damage. ROH has not met its burden in arguing there is no issue of genuine fact as to whether the Association can prove its claims for violation of the Florida Building Code because: (1) the Association’s expert identified Florida Building Code violations in the roof installations; (2) both the Association and ROH’s expert identified damage related to the defective roof installations; and (3) the damages are not speculative as the Association’s corporate representative testified regarding performing necessary roof repairs. As ROH fails to prove there is no genuine issue of material fact, its Motion should be denied. II. BACKGROUND AND INTRODUCTION 1. The instant case arises out of construction and design defects that exist at the Villas at Emerald Lake Townhomes, located in Osceola County, Florida (the “Community”). 2. The Villas at Emerald Lake townhome community contains 12 two- story residential buildings, comprised of 88 individual townhomes, as well as a clubhouse and other common areas. See Compl. ¶ 39; see also the operative Second Am. Compl., ¶¶ 40-41. 3. ROH constructed and developed 10 buildings comprised of 76 units 2 (units 110-149; and 162-197) within the Community of the townhomes (“Project”). See Compl., ¶ 41 and Compl. Fn. 2.; see also Second Am. Compl., ¶ 42; and Second Am. Compl. Fn. 2. 4. ROH admitted it contracted with independent contractors to construct the Community. ROH also admits the size and composition of the Community. See ROH’s Answer, ¶¶ 13, 41, and 43. 5. As the developer, ROH owed a statutory duty1 to the public (to whom it marketed the townhomes), and particularly to the Townhome purchasers (who make up the Association) to comply with the Florida Building Code (“FBC” or “Code”). 6. Further, as the licensed general contractor and permit applicant, ROH owed a common law duty to supervise, direct, and manage the construction services at the Community in a non-negligent manner, including compliance with the FBC, plans, specifications, industry standards, and in a good and workmanlike manner.2 7. The Project was ultimately constructed with numerous Code violations. 8. On November 23, 2020, the Association filed its initial Complaint in this action, which asserts three causes of action against ROH for: (i) Negligence and Vicarious Liability (“Count I”); (ii) Breach of the FBC (“Count II”); and (iii) Breach 1 Under § 553.84, Fla. Stat. 2 Plaintiff has separately filed a Motion for Summary Judgment against ROH for its Non Delegable Duty to construct the Project. (Doc. No. 941) 3 of Implied Warranties (“Count III”). All Counts relate to the negligent and defective construction of the Community. See Complaint (Doc. No. 2); see also Second Amended Complaint (Doc. No. 506). 9. Here, the Association argues that ROH has not met its burden in arguing there is no issue of genuine fact as to whether the Association can prove its claims for violation of the Florida Building Code because: (1) the Association’s expert identified FBC violations in the roof installations; (2) both the Association and ROH’s expert identified damage related to the defective roof installations; and (3) the damages are not speculative as the Association’s corporate representative testified regarding performing necessary roof repairs. 10. Accordingly, ROH fails to meet its burden because the “court must draw every inference in favor of the non-moving party [the Association] when considering whether a genuine issue of material fact exists. . .” Allen v. Board of Public Educ. For Bibb Cnty., 495 F. 3d 1306, 1313 (11th Cir. 2007) (emphasis added). III. MEMORANDUM OF LAW A. Summary Judgment Standard. Summary judgment is only appropriate where the pleadings, depositions, and affidavits show that there is no genuine issue of material fact, and that the movant 4 is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue of fact is “material” if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir.1997). An issue of fact is “genuine” if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. While the burden on the movant is great, the opposing party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary Judgment. Anderson, 477 U.S. at 252. Downs v. U.S., No. 06-20861-CIV, 2007 WL 842136 at *3 (S.D. Fla. Mar. 20, 2007). (Emphasis added). Summary judgment is only appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it “might affect the outcome of the suit under the governing law.” Id. Importantly, “courts are required to view the facts and draw all reasonable inferences in the light most favorable to the party opposing the summary judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007). And “if there is a conflict between the parties’ allegations or 5 evidence, the non-moving party’s evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party’s favor.” Allen v. Bd. of Pub. Educ. for Bibb County, 495 F.3d 1306, 1314 (11th Cir. 2007). ROH has failed to show there is no genuine issue of material fact as to the existence of Florida Building Code violations and resulting damage and therefore, its Motion should be denied. B. Section 553.84 of the Florida Statutes. Under Florida law, a Plaintiff can bring a cause of action: “Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a material violation of this part or the Florida Building Code has a cause of action in any court of competent jurisdiction against the person or party who committed the material violation; § 553.84, Fla. Stat. (2023) (emphasis added). Of note, section 553.84, Florida Statutes, was amended in April of 2023 to include the phrase “material violation” and to add an additional sentence stating, “For purposes of this section, the term ‘material violation’ means a Florida Building Code violation that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems.” Id. (emphasis added); c.f. § 553.84, Fla. Stat. (2001) (“Notwithstanding any other remedies available, any person or party, in an individual capacity or on behalf of a class of persons or parties, damaged as a result of a violation of this part or the 6 Florida Building Code, has a cause of action in any court of competent jurisdiction against the person or party who committed the violation; however, if the person or party obtains the required building permits and any local government or public agency with authority to enforce the Florida Building Code approves the plans, if the construction project passes all required inspections under the code, and if there is no personal injury or damage to property other than the property that is the subject of the permits, plans, and inspections, this section does not apply unless the person or party knew or should have known that the violation existed.”) (emphasis added). With its amendment, the Florida legislature made it clearer, arguably more difficult, and more in line with the definition of a Material Code Violation for a party to be able to bring a claim under section 553.84 of the Florida Statutes. In its Motion, as detailed further below, ROH completely disregards any testimony regarding whether a material violation of the building code existed. Instead, it focuses on a “Non-Defect List” later identified by Marcon. Motion, p. 8. Because it leaves these important details and prerequisites out of its Motion – and those matters prevent partial summary judgment here – ROH’s Motion should be denied. C. Material Code Violations Under the Florida Building Code. The FBC defines a Material Code Violation as “a violation that exists within a completed building, structure or facility which may reasonably result, or has 7 resulted, in physical harm to a person or significant damage to the performance of a building or its systems.” Fla. Build. Code Residential, 5th Edition, Section R202, Definitions, p. 2.9. Contrarily, the FBC does not enumerate a definition for a “technical code violation” as described by ROH. Id. IV. ARGUMENT A. Record Evidence Supports the Existence of Florida Building Code Violations The Motion should be denied because, despite ROH’s assertions in its Motion, the Association has put forth evidence of Florida Building Code violations and resulting damage in the roof construction. Here, all ROH has shown that the record evidence provides the typical “battle of the experts” scenario, wherein both Parties proffer conflicting evidence, creating a genuine issue of material fact. Second, the Association has also put forth evidence of necessary temporary repairs that the Association has performed on the roofs at the Community, providing evidence of resulting damages at the roofs. Further, ROH’s assertion that the Association’s damages are speculative ignores the fact that the Florida Building anticipates the existence of (“Material Code Violation”) which may either have already manifested in damage or will reasonably cause future damage. ROH’s arguments that the Association’s damages are speculative are unfounded and miss the issue critical to the Association’s claims under section 553.84, Florida Statutes, whether there is a genuine issue of fact whether Material Code Violations exist that 8 either have resulted or reasonably will result in damages to the Project. Further, damages are an issue to be presented to the trier of fact. Therefore, ROH’s Motion should be denied. i. Plaintiff’s expert has provided testimony, photos, reports, and opinions evidencing the existence of a genuine issue of material fact whether there are Florida Building Code violations in the roofs at the Project. In furtherance of its investigation of the construction defects throughout the Community, the Association retained expert, Marcon Forensics, LLC (“Marcon”), a building exterior and construction forensic investigation company with extensive experience performing evaluations and repairs to structures and building exteriors. See generally, Deposition Testimony of Felix Martin, P.E. (“Martin”), Composite Ex. A; see also Curriculum Vitae of Felix Martin, P.E., Exhibit B. Marcon conducted an extensive investigation of the conditions of the townhomes at the Project, including a visual examination of all 76 townhomes at issue and invasive testing at numerous locations. Id. at Vol I, p. 48:24; Marcon identified numerous exterior building defects which correlate with water intrusion related damages. See generally, Ex. A. These exterior defects include the improper installation of stucco, windows and doors, flashings, roofing, and weather resistive barrier. Id. Marcon concluded that defects and deficiencies in the exteriors of the Project violate the Florida Building Code, requiring that the exterior walls provide a weather-resistant 9 exterior wall envelope, including properly waterproofed and constructed roofs. Id. at Vol. I, pp. 183:25-188:6. Marcon identified seven building code violations related to the construction of the roofs at the Project and testified to the same. See Ex. A, and Report of Marcon Forensics, LLC, attached as Exhibit C. The building code violations identified at the roof constructions at the Project are as follows: Defect Code Provision Lack of 4-inch roof cement over the roof 2010 Florida Residential Code: R905.2.8.5 drip edge flange. 2014 Florida Residential Code: R905.2.8.5 The roof shingles do not overhang the 2010 Florida Residential Code: R903.1 roof eave by the minimum requisite ½ 2014 Florida Residential Code: R903.1 inch, nor are they trimmed flush with the “D” style eave flashing as required by the Certainteed manufacturing installation instructions. Starter shingles were nailed through the 2010 Florida Residential Code: R903.1 eave flashing: the starter strip fasteners 2014 Florida Residential Code: R903.1 were installed less than 3 inches from the edge of the roof. The roof underlayment was not turned 2010 Florida Residential Code: R903.1 up the wall at the roof-to-wall 2014 Florida Residential Code: R903.1 intersection, creating an unsealed intersection between the wall and the roof. The shingles were either installed with 2010 Florida Residential Code: R903.1 less nails than required, or the nails were 2014 Florida Residential Code: R903.1 improperly spaced across the shingle, in violation of the Certainteed manufacturing installation instructions. The shingle fasteners were overdriven, 2010 Florida Residential Code: R903.1 in violation of the Certainteed 2014 Florida Residential Code: R903.1 manufacturing installation instructions. 10 This does not properly anchor the shingle. Starter shingles were installed without 2010 Florida Residential Code: R903.1 removing the lower tabs, in violation of 2014 Florida Residential Code: R903.1 Certainteed’s installation instructions. At confined rake terminations, the roof 2010 Florida Residential Code: R903.1 diverter fold was not sealed. 2014 Florida Residential Code: R903.1 See Ex. A and Ex. C. The 2010 Florida Residential Code (“FRC”) section R905.2.8.5 provides the following: The 2014 Florida Residential Code section R905.2.8.5 provides the same provision as to drip edge installations: 11 Martin testified, in support of his opinions provided in the Marcon Report, that pursuant to Marcon’s investigation, the installation of the drip edge was defective, in violation of FRC R905.2.8.5, resulting in a system that creates Material Code Violation of the Florida Building Code. Ex. A, pp. Vol. I. 168:25-169:9; 184:25-185:8; and Vol. III, pp. 486:3-487:13. Further, Marcon identified the remaining enumerated Material Code Violations as defects that are noncompliant with the provision of the 2010 and 2014 FRC R903.1. See Ex. A, Vol. I, pp. 171:10-185:8. Both the 2010 and 2014 Florida Residential Code section R903.1 require that “Roof decks shall be covered with approved roof coverings secured to the building or structure in accordance with the provisions of this Chapter. Roof assemblies shall be designed and installed in accordance with this code and approved manufacturer’s installation instructions such that the roof assembly shall serve to protect the building or structure.” 2014 Fla. Build. Code Residential, 5th Edition, Section R903.1; see also 2010 Fla. Build. Code Residential, Section R903.1. Martin’s testimony and report note that, pursuant to its investigation, each of the identified defects was a Florida Building Code violation as the conditions either did not (1) comply with the manufacturer’s installation instructions; and/or (2) serve to protect the buildings at the Project. See Ex. A and Ex. C. While ROH asserts that the Association’s expert testimony and opinions are 12 insufficient evidence to prove its claim and that the contradictory opinions of its own expert proffered in support of its Motion are dispositive on the issue, (see Motion, p. 9), this same assertion highlights that there is a genuine issue of material fact and that the “Battle of the Experts” is an issue to be submitted to the trier of fact. Accordingly, ROH’s Motion must be denied. B. Record Evidence Supports the Existence of Damages Related to FBC Violations As discussed above, the Association has put forth record evidence that its expert holds opinions regarding the existence Material Code Violations that are resulting or may reasonably result in damage to the property. Ex. A, pp. Vol. I. 168:25-169:9; 184:25-185:8; and Vol. III, pp. 486:3-487:13. While the Association with the testimony and findings above shows that it has provided sufficient record evidence to overcome ROH’s Motion, it further notes that its expert has testified explicitly regarding the existence of installations performed in violation of the building code at the Project and resulting damage therefrom. Martin specifically testified: 13 Ex. A, Vol. I, 184:25-8. According to Marcon, to correct the deficiencies in the Project are Material Code Violations and defects in the exterior walls of the Project. Ex. A, pp. Vol. III, pp. 486:3-487:13. Further, Martin testified that to be able access the damaged areas of the same, the roofs, as part of the exterior assemblies, must be removed and replaced to properly repair the damage related to the improper construction of the same and to properly flash and integrate the roofs with the rest of the building exterior, as required by the Florida Building Code. Id. Additionally, to perform the repairs necessary to address the construction defects in the exteriors, including the defective roof and roof accessory installation, the Association must remove and perform repairs to the roofs to properly repair the damaged exterior walls and properly integrate the roofs with the adjacent exterior wall components. Id. ROH attempts to argue that Marcon’s opinions regarding damages at the Project are speculative and that there “is no evidence of damage to the lower and upper roofs installed at the Emerald Lake townhomes.” Motion, p. 18. ROH’s assertions are incorrect because the Association has testified that it has taken on the burden of performing temporary repairs to damaged roofs and ROH’s expert himself has admitted evidence of damage on the roofs. See Deposition Testimony of Randy Treadwell, Corporate Representative of the Association, Exhibit D, pp.76:9-77:2; and Deposition Testimony of Brett Newkirk, Expert for ROH, Exhibit E, p. 127:4- 14 19. i. Material Code Violations and Damages under section 553.84 Pursuant to the 2010 and 2014 Florida Residential codes: a Material Code Violation is “a violation that exists within a completed building, structure or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems.” 2014 Fla. Build. Code Residential, 5th Edition, Section R202, Definitions, p. 2.9 (emphasis added). The most imperative consideration regarding the Association’s damages under §553.84, Fla. Stat., is that the Association has put forth evidence that Material Code Violations exist at the Project. Ex. A, pp. Vol. III, pp. 486:3-487:13. Here, it is not a matter of whether the damage exists now or whether the Association’s damages “are based on speculation or guesswork.” Motion, p. 21. The crux of the issue is that the Association has put forth evidence that a Material Code Violation exists at the Project and, by definition, the Florida Building Code anticipates that Material Code Violations may not presently exhibit damage and that the existence of the Material Code Violation may reasonably result in damage to the performance of a building or its systems in the future. V. CONCLUSION In the present action, the Association brought claims for violation of the 15 Florida Building Code pursuant to section 553.84, Florida Statutes. ROH attempts to foreclose the Association’s these claims as they relate to the roof installations but, the Association is able to provide its own sufficient record evidence to illustrate there is a genuine issue of material fact as to these claims. For these reasons, the Court should deny ROH’s Motion. DATED: This 22nd day of February, 2024. BALL JANIK LLP By: /s/ Kasey L. Joyce__ Phillip E. Joseph, FL Bar No. 1000368 Evan J. Small, FL Bar No. 57306 Jeffrey A. Widelitz FL Bar No. 105642 Christopher S. Tribbey, FL Bar No. 1003114 Kasey L. Joyce, FL Bar No. 1024705 201 E Pine Street, Suite 600 Orlando, FL 32801 Telephone: (407) 455-5664 Facsimile: (407) 902-2105 pjoseph@balljanik.com esmall@balljanik.com jwidelitz@balljanik.com ctribbey@balljanik.com kjoyce@balljanik.com dtodd@balljanik.com cbetancourt@balljanik.com bburton@balljanik.com orlandodocket@balljanik.com Counsel for Plaintiff Villas at Emerald Lake Homeowners Association, Inc. 16 CERTIFICATE OF SERVICE I certify that a true copy of the foregoing has been filed via the Florida Courts E-Filing Portal on February 22, 2024. /s/ Kasey L. Joyce Kasey L. Joyce, Esq. SERVICE LIST LUIS PRATS THAMIR A.R. KADDOURI, JR. LANNIE D. HOUGH, JR. PENELOPE T. ROWLETT JAMES MICHAEL WALLS BETH ANN TOBEY ROBIN H. LEAVENGOOD Law Office of Thamir A.R. Kaddouri, Carlton Fields, P.A. Jr. P.A. 4221 W. Boy Scout Boulevard 3220 West Cypress Street Tampa, FL 33607-5780 Tampa, FL 33607 (813) 223-7000 (813) 879-5752 lprats@carltonfields.com thamir.kaddouri@tampalaw.org lhough@carltonfields.com service@tampalaw.org mwalls@carltonfields.com beth.tobey@tampalaw.org rleavengood@carltonfields.com mramos@carltonfields.com Counsel for Defendant, Imperial nbonilla@carltonfields.com Building Corporation ejohnson@carltonfields.com krick@carltonfields.com Counsel for Defendant, Royal Oak Homes, LLC PAUL SIDNEY ELLIOTT PETER J. KAPSALES P.O. Box 274204 MARGARET M. EFTA Tampa, FL 33688-4204 Milne Law Group, P.A. (813) 265-1314 301 E. Pine Street, Suite 525 pse@psejd.com Orlando, FL 32801 (321) 558-7700 17 Counsel for Defendant, Hugh pkapsales@milnelawgroup.com MacDonald Construction, Inc. (HMC) mefta@milnelawgroup.com eservice@milnelawgroup.com DENISE M. ANDERSON ASHLEY M. MATTINGLY Counsel for Defendant, Weathermaster Butler Weihmuller Katz Craig LLP Building Products, Inc. 400 N. Ashley Drive, Suite 2300 Tampa, FL 33602 (813) 281-1900 danderson@butler.legal amattingly@butler.legal krieck@butler.legal rjorge@butler.legal Co-Counsel for Defendant, Hugh MacDonald Construction, Inc. DENISE M. ANDERSON ANDREW E. HOLWAY DAVID A. MERCER J. ROCCO CAFARO Butler Weihmuller Katz Craig, LLP Hill Ward Henderson 400 N. Ashley Drive, Suite 2300 101 E. Kennedy Blvd., Suite 3700 Tampa, FL 33602 Tampa, FL 33602 danderson@butler.legal (813) 221-3900 dmercer@butler.legal andrew.holway@hwhlaw.com krieck@butler.legal derrick.calandra@hwhlaw.com rjorge@butler.legal jill.kuty@hwhlaw.com tbarry@butler.legal kathy.wernsing@hwhlaw.com rocco.cafaro@hwhlaw.com Counsel for Defendant, Don King’s tracy.coale@hwhlaw.com Concrete, Inc. Counsel for Defendant/Cross Defendant, Weintraub Inspections & Forensics, Inc. n/k/a Weintraub Engineering and Inspections, Inc. JAYNE ANN PITTMAN BRUCE R. CALDERON NATALIE C. FISCHER ALICIA Z. GROSS Conroy Simberg BARRI A. REISCH Two South Orange Avenue, Suite 300 Milber Makris Plousadis & Seiden, Orlando, FL 32801 LLP 18 (407) 649-9797 1900 NW Corporate Blvd. eserviceorl@conroysimberg.com East Tower, Suite 440 jpittman@conroysimberg.com Boca Raton, FL 33431 mmaitland@conroysimberg.com (561) 994-7310 nfischer@conroysimberg.com bcalderon@milbermakris.com azgross@milbermakris.com Counsel for Defendant, Advanced breisch@milbermakris.com Wrapping and Concrete Solutions of kmcdowell@milbermakris.com Central Florida, Inc. sskowronski@milbermakris.com Counsel for Defendant/Cross- Defendant, Brown + Company Architecture, Inc. JENNIFER MILLER BROOKS S. SCOTT ROSS KIRA TSIRING Groelle & Salmon, P.A. Hamilton, Miller & Birthisel, LLP 1715 N. Westshore Blvd., Suite 320 150 Southeast Second Avenue, Suite Tampa, FL 33607 1200 (813) 849-7200 Miami, FL 33131-2332 gstcourtdocs@gspalaw.com (305) 379-3686 sross@gspalaw.com jmiller@hamiltonmillerlaw.com cebanks@gspalaw.com ktsiring@hamiltonmillerlaw.com mcoleman@gspalaw.com jcasaccio@hamiltonmillerlaw.com Counsel for Third-Party Defendant, Counsel for Defendant/Cross- Helberg Enterprises, LLC Defendant, TGK Stucco, Inc. VICKI LAMBERT ANDREW T. MARSHALL ALEC MASSON SARA W. MAPES Luks, Santaniello, Petrillo & Cohen Hamilton, Price & Marshall, P.A. 201 S. Orange Avenue, Suite 400 2400 Manatee Ave. W. Orlando, FL 32801 Bradenton, FL 34205 (407) 540-9170 (941) 748-0550 luksorl-pleadings@ls-law.com andrew@hamiltonpricelaw.com amason@insurancedefense.net sara@hamiltonpricelaw.com jpestonit@insurancedefense.net nancy@hamiltonpricelaw.com kelsey@hamiltonpricelaw.com Counsel for Third-Party Defendant, atmservice@hamiltonpricelaw.com Casey Hawkins Glass, Inc. 19 PHILLIP S. HOWELL Counsel for Third-Party Defendant, BRENDEN C. COLLINS T&M Construction of Sanford, Inc. Galloway, Johnson, Tompkins, Burr & Smith, P.L.C. WILLIAM M. WOODS 400 N. Ashley Dr., Suite 1000 JOSEPH M. CLINE Tampa, FL 33602 100 S. Missouri Avenue, Suite 201 (813) 977-1200 Clearwater, Fl 33756 tampaservice@gallowaylawfirm.com (727) 799-1229, Ext. 4072 phowell@gallowaylawfirm.com wwoods@willwoodslaw.com bcollinsl@gallowaylawfirm.com josephc@willwoodslaw.com marital@willwoodslaw.com Counsel for Third-Party Defendant, pleadings@willwoodslaw.com Casey Hawkins Glass, Inc. Counsel for Third-Party Defendants, T & M Construction of Sanford, Inc. and All Glass Installation Corp. JOSEPH L. ZOLLNER COLE J. COPERTINO Law Office of Christopher Norris Wright, Fulford, Moorhead & Brown, PO Box 7217 P.A. London, KY 40742 505 Maitland Avenue, Suite 1000 (904) 346-5422 Altamonte Springs, FL 32701 floridacdlegalmail@libertymutual.com (407) 425-0234 joseph.zollner@libertymutual.com ccopertino@wfmblaw.com cbraungart@wfmblaw.com Counsel for Third-Party Defendant, lwilliams@wfmblaw.com Lios Concrete Corp Counsel for Third-Party Defendant, Well Hung Windows & Doors MONAL O. ZIPPER CHESLEY G. MOODY, JR. JENNIFE SHIPPOLE MAI M. LE Law Office of Jennifer L. Shippole Moody & Graf, P.A. 14050 NW 14th Street, Suite 180 1101 N. Lake Destiny Road, Suite 200 Sunrise, FL 33323 Maitland, FL 32751 (954) 417-3066 Ext. 4645 (407) 755-6900 jlspleadings@fednat.com cmoody@moodygraf.com mzipper@fednat.com mle@moodygraf.com jshippole@fednat.com kbraund@moodygraf.com iperera@moodygraf.com Counsel for Third-Party Defendant, Atlantic Concrete Systems, Inc. 20 Counsel for Premier Plastering of Central Florida, Inc. Withdrew for Premier Plastering only 3.4.2022 & Defendant/Cross-Defendant, Wolf’s Irrigation & Landscaping, Inc. JERRILYNN HADLEY WAYNE M. ALDER TODD M. LADAUCEUR Fisher Broyles, LLP Galloway, Johnson, Tompkins, Burr 7668 N. W. 125th Way and Smith, PLC Pompano Beach, FL 33076 118 E. Garden Street (954) 603-6174 Pensacola, FL 32502 wayne.alder@fisherbroyles.com (850) 436-7000 wmalder@bellsouthnet.com tmlconstruction@gallowaylawfirm.com Counsel for Third-Party Defendant, Counsel for Third-Party Defendant E.R.O. Construction, Inc. and Well Hobbit Windows, LLC Done Windows, Inc. SHAUN M. QUINN JACKELINE RODRIGUEZ Hamilton, Miller & Birthisel, LLP 150 S.E. 2nd Avenue, Suite 1200 Miami, FL 33131 (305) 379-3686 squinn@hamiltonmillerlaw.com jrodriguez@hamiltonmiller.com Counsel for Defendant/ Cross- Defendant, Premier Plastering of Central Florida, Inc. UNREPRESENTED PARTIES Expert Painting & Pressure Washing, Inc. c/o Richard C. Bates, Registered Agent 3631 Late Morning Cir. Kissimmee, FL 34744 21 COMPOSITE EXHIBIT “A” In The Matter Of: Villas at Emerald Lake Homeowners Association, Inc. v. Royal Oaks Homes, LLC., et al Felix Martin Vol. I June 15, 2021 Legal Realtime Reporting 622 E. Washington Street Suite 200 Orlando, Florida 32801 Original File 6-15-21.txt Min-U-Script® with Word Index Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 1 Page 3 1 IN THE CIRCUIT COURT, NINTH 1 APPEARANCES CONTINUED: JUDICIAL CIRCUIT, IN AND FOR 2 OSCEOLA COUNTY, FLORIDA 2 PETER J. KAPSALES, ESQUIRE OF: MILNE LAW GROUP, P.A. 3 CASE NO.: 2020-CA-002942-ON 3 301 East Pine Street Suite 525 4 VILLAS AT EMERALD LAKE 4 Orlando, Florida 32801 HOMEOWNERS ASSOCIATION, APPEARING ON BEHALF OF WEATHERMASTER BUILDING 5 INC., a Florida not for 5 PRODUCTS, INC. profit corporation, 6 6 ANDREW E. HOLWAY, ESQUIRE Plaintiff, OF: HILL, WARD, HENDERSON 7 v. 7 101 East Kennedy Boulevard Suite 3700 8 ROYAL OAK HOMES, LLC, a 8 Tampa, Florida 33602 Florida limited liability APPEARING ON BEHALF OF WEINTRAUB INSPECTIONS & 9 company, et al., 9 FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC. 10 Defendants. 10 ______________________________/ D. BRYAN HILL, ESQUIRE 11 11 OF: MILBER, MAKRIS, PLOUSADIS & SEIDEN, LLP AND RELATED CROSS-ACTIONS. 1900 Northwest Corporate Boulevard 12 _______________________________/ 12 East Tower Suite 440 13 13 Boca Raton, Florida 33431 APPEARING ON BEHALF OF BROWN + BROWN COMPANY 14 VOLUME I 14 ARCHITECTURE, INC. (PAGES 1 THROUGH 206) 15 15 ERIC J. NETCHER, ESQUIRE OF: WALKER, REVELS, GRENINGER & NETCHER, PLLC 16 ZOOM DEPOSITION OF: FELIX MARTIN 16 189 South Orange Avenue Suite 1830 17 DATE TAKEN: June 15, 2021 17 Orlando, Florida 32801 APPEARING ON BEHALF OF ALL GLASS INSTALLATION 18 TIME: 9:00 a.m. to 5:00 p.m. 18 CORP. 19 PLACE: ALL PARTIES ATTENDED VIA ZOOM 19 R. SCOTT ROSS, ESQUIRE OF: GROELLE & SALMON, P.A. 20 REPORTED BY: TARA K. SLOCUM, RPR, CRR, CSR 20 1715 North Westshore Boulevard State of California and Notary Suite 230 21 Public State of Florida 21 Tampa, Florida 33607 APPEARING ON BEHALF OF HELBERG ENTERPRISES, LLC 22 22 ANDREW MARSHALL, ESQUIRE 23 23 OF: HAMILTON, PRICE & MARSHALL, P.A. 2400 Manatee Avenue West 24 24 Bradenton, Florida 34205-4934 APPEARING ON BEHALF OF T&M CONSTRUCTION 25 25 Page 2 Page 4 1 A P P E A R A N C E S: 1 APPEARANCES CONTINUED: 2 NICHOLAS B. VARGO, ESQUIRE 2 NATALIE FISCHER, ESQUIRE ALLANA SMITH, ESQUIRE OF: CONROY SIMBERG 3 OF: BALL JANIK, LLP 3 Two South Orange Avenue 201 East Pine Street Suite 300 4 Suite 600 4 Orlando, Florida 32801 Orlando, Florida 32801 APPEARING ON BEHALF OF ADVANCED WRAPPING AND 5 APPEARING ON BEHALF OF THE PLAINTIFF 5 CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC. 6 MAI M. LE, ESQUIRE 6 RICHARD LEE RUSSO, ESQUIRE OF: MOODY & GRAF, P.A. OF: WRIGHT, FULFORD, MOOREHEAD & BROWN 7 1101 North Lake Destiny Road 7 505 Maitland Avenue Suite 200 Suite 1000 8 Maitland, Florida 32751 8 Altamonte Springs, Florida 32701-6306 APPEARING ON BEHALF OF PREMIER PLASTERING OF APPEARING ON BEHALF OF WELL HUNG WINDOWS AND 9 CENTRAL FLORIDA, INC. 9 DOORS, LLC 10 BETH ANN TOBEY, ESQUIRE 10 OF: LAW OFFICES OF THAMIR A.R. KADDOURI, JR., P.A. 11 3220 West Cypress Street 11 Tampa, Florida 33607 12 APPEARING ON BEHALF OF IMPERIAL BUILDING 12 CORPORATION 13 13 MICHAEL RUEL, ESQUIRE 14 OF: LUKS, SANTANIELLO, PETRILLO & COHEN 14 201 South Orange Avenue 15 Suite 400 15 Orlando, Florida 32801 16 APPEARING ON BEHALF OF CASEY HAWKINS GLASS, INC. 16 17 KATE F. GASET, ESQUIRE 17 OF: BUTLER, WEIHMULLER, KATZ, CRAIG, LLP 18 400 North Ashley Drive 18 Suite 2300 19 Tampa, Florida 33602 19 APPEARING ON BEHALF OF DON KING'S CONCRETE, INC. 20 APPEARING ON BEHALF OF LSH ENTERPRISES, INC. 20 21 JAMES MICHAEL WALLS, ESQUIRE 21 OF: CARLTON FIELDS, P.A. 22 4221 West Boy Scout Boulevard 22 Tampa, Florida 33607-5780 23 APPEARING ON BEHALF OF ROYAL OAK HOMES, LLC 23 24 24 25 25 Min-U-Script® Legal Realtime Reporting (1) Pages 1 - 4 Villas at Emerald Lake Homeowners Association, Inc. v. Felix Martin - Vol. I Royal Oaks Homes, LLC., et al June 15, 2021 Page 5 Page 7 1 C O N T E N T S 1 you. Have you seen this document before? 2 TESTIMONY OF FELIX MARTIN Direct Examination By Mr. Walls.......................6 2 A Yes. 3 CERTIFICATE OF OATH......................................203 CERTIFICATE..............................................204 3 Q And if we turn to Exhibit A to this 4 ERRATA PAGE..............................................205 NOTIFICATION LETTER......................................206 4 document, it requested a number of documents to be 5 - - - - - 5 provided for your deposition. Did you review this 6 EXHIBITS 6 list of documents? 7 No. 1 - Notice of Deposition...............................6 7 A Yes. No. 2 - Curriculum Vitae..................................28 8 No. 3 - 4/28/2020 Marcon Engineering Assessment Report....27 8 Q And it's my understanding you have No. 4 - Marcon Invoice No. 4246...........................29 9 No. 5 - Marcon Invoice No. 4511...........................32 9 provided your job file, which I have. Did you go No. 6 - 4/2/21 Marcon Engineering Assessment Report.......35 10 No. 7 - Photograph........................................45 10 through this list and make sure that you produced No. 8 - Marcon Invoice No. 4196...........................60 11 No. 9 - Marcon Invoice No. 4239...........................66 11 everything that you have in connection with this No. 10- Marcon Construction Defects Investigation 12 Proposal..........................................70 12 list as part of your job file? No. 11- Marcon Scope of Work by DT Contractor.............77 13 No. 12- Marcon Power Point................................96 13 A Yes. No. 13- Rain Wand AAMA 501.2-09 Apparatus Calibration 14 Certificate......................................139 14 Q And I am going to go to the next document. No. 14- Photograph.......................................158 15 15 Do you recognize this document, Mr. Martin? 16 - - - - - 16 A Yes. 17 S T I P U L A T I O N S 17 Q Is this your curriculum vitae? 18 It is hereby agreed and so stipulated by 18 A It is. and between the parties hereto, through their 19 respective counsel, that the reading and signing of 19 Q And is this an up-to-date version of your the transcript are expressly RESERVED by the 20 Deponent. 20 curriculum vitae? 21 21 A I think that's the most recent, yes. 22 22 Q I notice there is not a date on it. Do 23 23 you -- how often do you update your CV? 24 24 A Typically about every couple of months. 25 25 Q I want to ask you a few questions about Page 6 Page 8 1 PROCEEDINGS 1 your CV. I will start with the first page, your 2 * * * * 2 last paragraph on the first page you identify a 3 THE REPORTER: Do you solemnly swear the 3 number of organizations that you are involved with; 4 testimony you are about to give in this 4 do you see that? 5 deposition will be the truth, the whole truth, 5 A Yes. 6 and nothing but the truth? 6 Q And you are a member of the Florida Lath & 7 THE WITNESS: I do. 7 Plaster Bureau? 8 FELIX MARTIN 8 A Yes. 9 having been first duly sworn, testified under oath as 9 Q And when did you become a member of the 10 follows: 10 Florida Lath & Plaster Bureau? 11 DIRECT EXAMINATION 11 A I think that must have been last year 12 BY MR. WALLS: 12 because I just got an invoice from them, like a year 13 Q Good morning, Mr. Martin. 13 ago. 14 Could you please provide your full name 14 Q And what do you have to do to become