Motion-Secondary: VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION INC vs. ROYAL OAK HOMES LLC

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                                Filing # 193721041 E-Filed 03/11/2024 11:48:34 AM


              IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
                      IN AND FOR OSCEOLA COUNTY, FLORIDA

         VILLAS        AT       EMERALD      LAKE
         HOMEOWNERS ASSOCIATION, INC., a
         Florida not for profit corporation,

                Plaintiff,

         v.                                         CASE NO.: 2020-CA-002942-ON

         ROYAL OAK HOMES, LLC, a Florida DEFENDANT, ROYAL OAK
         limited liability company, f/k/a AVH HOMES, LLC’S, REPLY TO
         ACQUISITION          LLC;     ADVANCED PLAINTIFF’S RESPONSE IN
         WRAPPING            AND        CONCRETE    OPPOSITION TO ROYAL
         SOLUTIONS OF CENTRAL FLORIDA,                  OAK’S MOTION
         INC., a Florida corporation; DON KING’S    IN LIMINE TO EXCLUDE
         CONCRETE, INC., a Florida corporation;       PLAINTIFF EXPERT
         HUGH MACDONALD CONSTRUCTION,               TESTIMONY AS TO THE
         INC., a Florida corporation; IMPERIAL DUTY OF CARE OWED BY A
         BUILDING CORPORATION, a Florida            GENERAL CONTRACTOR
         corporation; PREMIER PLASTERING OF               IN FLORIDA
         CENTRAL FLORIDA, INC. n/k/a TGK
         STUCCO, INC., a Florida corporation;
         WEATHERMASTER                   BUILDING
         PRODUCTS, INC., a Florida corporation;
         WEINTRAUB            INSPECTIONS        &
         FORENSICS, INC. n/k/a WEINTRAUB
         ENGINEERING AND INSPECTIONS,
         INC., a Florida corporation; THE DIMILLO
         GROUP, LLC, a Florida limited liability
         company; WOLF’S IRRIGATION &
         LANDSCAPING,          INC.,    a   Florida
         corporation; SUMMERPARK HOMES,
         INC., a Florida corporation; BROWN +
         COMPANY ARCHITECTURE, INC., a
         Florida corporation;
         EXPERT PAINTING & PRESSURE
         WASHING, INC., a Florida corporation,


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        Defendants.
                                           /

 ROYAL OAK HOMES, LLC, f/k/a AVH
 ACQUISITION,

        Crossclaim Plaintiff,
 v.

 ADVANCED            WRAPPING       AND
 CONCRETE SOLUTIONS OF CENTRAL
 FLORIDA, INC., a Florida corporation;
 DON KING’S CONCRETE, INC., a Florida
 corporation;     HUGH       MACDONALD
 CONSTRUCTION, INC., a Florida
 corporation;     IMPERIAL     BUILDING
 CORPORATION, a Florida corporation;
 PREMIER PLASTERING OF CENTRAL
 FLORIDA, INC. n/k/a TGK STUCCO, INC.,
 a Florida corporation; WEATHERMASTER
 BUILDING PRODUCTS, INC., a Florida
 corporation; WEINTRAUB INSPECTIONS
 & FORENSICS, INC. n/k/a WEINTRAUB
 ENGINEERING AND INSPECTIONS,
 INC., a Florida corporation; WOLF’S
 IRRIGATION & LANDSCAPING, INC., a
 Florida corporation; BROWN + COMPANY
 ARCHITECTURE,          INC.,  a  Florida
 corporation; EXPERT PAINTING &
 PRESSURE WASHING, INC., a Florida
 corporation,

        Crossclaim Defendants.
                                   /

 WEATHERMASTER             BUILDING
 PRODUCTS, INC., a Florida Corporation;
 DON KING’S CONCRETE INC., a Florida
 Corporation,


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        Third-Party Plaintiff,
 v.

 ALL GLASS INSTALLATION COPRP., a
 Florida corporation; CASEY HAWKINS
 GLASS, INC., a Florida corporation; DEAN
 NESBIT, LLC, a Florida limited liability
 company; HELBERG ENGERPRISES,
 LLC, a Florida limited liability company;
 HOBBIT WINDOWS, LLC, a Florida
 limited    liability   company;      T&M
 CONSTRUCTION OF SANFORD, INC., a
 Florida   corporation;   WELL       DONE
 WINDOWS, INC., a Florida corporation;
 and WELL HUNG WINDOWS & DOORS,
 LLC, a Florida limited liability company;
 E.R.O. CONSTRUCTION, INC., a Florida
 Corporation; LIOS CONCRETE CORP., a
 Florida Corporation; and ATLANTIC
 CONCRETE SYSTEMS, INC., a Florida
 Corporation,

        Third-Party Defendants.
                                      /

 DEFENDANT, ROYAL OAK HOMES, LLC’S, REPLY TO PLAINTIFF’S
RESPONSE IN OPPOSITION TO ROYAL OAK’S MOTION IN LIMINE TO
  EXCLUDE PLAINTIFF EXPERT TESTIMONY AS TO THE DUTY OF
     CARE OWED BY A GENERAL CONTRACTOR IN FLORIDA

       Defendant, Royal Oak Homes, LLC (“Royal Oak”), replies to Plaintiff’s

Response in Opposition (“Opposition”) to Royal Oak’s Motion in Limine to Exclude

Plaintiff Expert Testimony as to the Duty of Care Owed by a General Contractor in

Florida (“Motion”).




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       Royal Oak’s Motion seeks to exclude testimony by Plaintiff’s expert, Felix

Martin, P.E., regarding Royal Oak’s duty of care as a general contractor. Motion, p.

5. Mr. Martin is not qualified to offer such testimony because he is an engineer who

has never been a licensed general contractor, nor has he ever managed or supervised

construction work as a general contractor on any project. Id. pp. 4-7; quoting (Martin

Dep. Vol. I, 21:3-6, 13-20; 22:25, 23:1-6). The Motion should be granted because

Plaintiff agrees in the Opposition that Mr. Martin is not a licensed general contractor

and will not testify regarding Royal Oak’s duty of care as a general contractor at

trial. Further, the Motion is not premature.

I.     Plaintiff’s Opposition Agrees with the Motion - Mr. Martin Will Not
       Testify as to the General Contractor’s Duty of Care at Trial.

       Plaintiff’s Opposition states that Mr. Martin’s testimony will focus on the

defects, building code violations, and damages at the Townhomes. Opposition, p. 4.

The Motion does not seek to limit that testimony.

       In the Opposition, Plaintiff agrees that Mr. Martin is a professional engineer

and has never held a general contractor’s license. Opposition, p. 3. As the Motion

points out, Mr. Martin has never managed or supervised construction work as a

general contractor on any project and therefore lacks the requisite knowledge, skill,

experience, training or education to properly testify on the duty of care owed by a

general contractor. Motion, pp.5-6; quoting (Martin Dep. Vol. I, 21:3-6, 13-20;



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22:25, 23:1-6). The Opposition does not dispute any of those facts. Opposition, pp.

1-21.

        Importantly, the Opposition does not argue that Mr. Martin should be

permitted to testify as to Royal Oak’s duty of care as a general contractor.

Opposition, pp. 1-21. The Opposition represents that Mr. Martin is not offered for,

and will not testify about at trial, the legal duties held by a general contractor.

Opposition, pp. 4-5. Thus, Plaintiff will not be prejudiced by an order so limiting

Mr. Martin’s testimony. The Motion should be granted.

II.     Plaintiff’s Arguments Regarding Royal Oak’s Alleged Non-Delegable
        Duties as a General Contractor are Irrelevant to the Motion.

        Again, the Motion simply asks the Court to limit Mr. Martin from testifying

regarding Royal Oak’s duty of care as a general contractor. That is all. The Motion

in no way seeks a dispositive ruling on the nature, scope, breach, or delegability of

that duty. Nonetheless, the Opposition includes 16 pages of surplusage copied

almost verbatim from Plaintiff’s Motion for Partial Summary Judgment Regarding

Royal Oak Homes, LLC’s Non-Delegable Duty, filed on January 22, 2024 (“Non-

Delegable Duty Motion”).1 Plaintiff re-argues that Royal Oak’s duty as the general

contractor was non-delegable under Florida statutes, common law, and contract.

Opposition, pp. 8-21. Royal Oak disagrees with Plaintiff, as set forth in Royal Oak’s


1
 In what must be an unintentional cut-and-paste error, the Opposition even states twice, “[t]he
Motion should be granted.” Opposition, pp. 14, 19.

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Response to Plaintiff’s Non-Delegable Duty Motion. Because this Motion in no way

seeks a ruling on that legal issue, the Court should disregard it and Royal Oak will

not respond unnecessarily here.2

        Notably, whether or not a general contractor’s duty of care is delegable to its

independent subcontractors is irrelevant to determining (i) what is the general

contractor’s duty of care under the factual circumstances involved in the construction

of townhomes like the Villas at Emerald Lake townhomes in the construction

industry; and (ii) whether the general contractor breached that duty of care under the

particular facts in this case. The real issue before the Court in this Motion is whether

Mr. Martin may speak to what the duty of care is or whether it was breached in this

case.

        Further, Plaintiff’s insistence that Royal Oak’s duty of care as a general

contractor arises from Florida statutes, common law, and contract actually supports

granting the Motion. Again, Royal Oak disagrees with Plaintiff. Regardless, it is

improper for an expert witness to opine on legal questions. See e.g., HSBC Bank

USA, National Association v. Buset, 241 So. 3d 882, 886 (Fla. 3d DCA 2018), review

dismissed, 2018 WL 3650261 (Fla. 2018), reinstatement denied, 2018 WL 4293366

(Fla. 2018) (“an expert should not be allowed to testify concerning questions of

2
 Should the Court decide to consider Plaintiff’s non-delegable duty arguments as part of this
Motion, Royal Oak incorporates by reference its Response and Memorandum of Law in
Opposition to Plaintiff’s Motion for Partial Summary judgment on Defendant’s Non-Delegable
Duty, filed on February 21, 2024 (the “Response to Plaintiff’s Non-Delegable Duty Motion”).

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law”); Hann v. Balogh, 920 So. 2d 1250, 1251 (Fla. 2d DCA 2006) (“This court has

repeatedly held that ‘opinion testimony as to the legal interpretation of Florida law

is not a proper subject of expert testimony’…”). The Motion should be granted.

III.   The Motion is Timely.

       The Opposition suggests that the Motion is premature. Opposition, p. 8. This

Court’s Complex Case Management Order, dated April 12, 2023, required the parties

to file all motions in limine by February 5, 2024. See e.g., Ainsworth v. KLI, Inc.,

967 So. 2d 296, 301 (Fla. 4th DCA 2007) (court may require that motions in limine

be filed according to a pretrial schedule). Therefore, the Motion was timely filed on

February 5, 2024.

IV.    Conclusion.

       For all the reasons provided above, and more fully in the Motion, Royal Oak

respectfully requests the Court grant its Motion in Limine and exclude Plaintiff’s

expert from testifying regarding Royal Oak’s duty of care as a general contractor.

                                       Respectfully submitted,

                                       /s/ J. Michael Walls
                                       James Michael Walls
                                       Florida Bar No. 706272
                                       Luis Prats
                                       Florida Bar No. 329096
                                       Robin H. Leavengood
                                       Florida Bar No. 0547751
                                       Fiona E. Foley
                                       Florida Bar No. 118668
                                       Alexa M. Nordman

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                                       Florida Bar No. 1025863
                                       CARLTON FIELDS, P.A.
                                       4221 W. Boy Scout Boulevard
                                       Tampa, FL 33607-5780
                                       Telephone: (813) 223-7000
                                       Facsimile: (813) 229-4133
                                       mwalls@carltonfields.com
                                       lprats@carltonfields.com
                                       rleavengood@carltonfields.com
                                       anordman@carltonfields.com
                                       slambe@carltonfields.com
                                       ffoley@carltonfields.com
                                       Attorneys for Defendant, Royal Oak Homes,
                                       LLC

                         CERTIFICATE OF SERVICE
       I HEREBY CERTIFY that on March 8, 2024, the foregoing was electronically

filed with the Clerk of the Court by using the E-filing Portal, which will

electronically serve this document to all registered counsel of record.

                                       /s/ J. Michael Walls




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