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Filing # 193126440 E-Filed 03/01/2024 02:31:48 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v. CASE NO.: 2020-CA-002942-ON
ROYAL OAK HOMES, LLC, a Florida
limited liability company; ADVANCED DEFENDANT, ROYAL OAK
WRAPPING AND CONCRETE HOMES, LLC’S, REPLY TO
SOLUTIONS OF CENTRAL FLORIDA, PLAINTIFF’S RESPONSE IN
INC., a Florida corporation; DON KING’S OPPOSITION TO ROYAL
CONCRETE, INC., a Florida corporation; OAK’S MOTION FOR
HUGH MACDONALD CONSTRUCTION, PARTIAL SUMMARY
INC., a Florida corporation; IMPERIAL JUDGMENT AS TO
BUILDING CORPORATION, a Florida TECHNICAL BUILDING
corporation; PREMIER PLASTERING OF CODE VIOLATIONS AND
CENTRAL FLORIDA, INC. n/k/a TGK HYPOTHETICAL,
STUCCO, INC., a Florida corporation; SPECULATIVE, FUTURE
WEATHERMASTER BUILDING DAMAGES
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, a Florida
limited liability company,
Crossclaim Plaintiff,
v.
ADVANCED WRAPPING AND
CONCRETE SOLUTIONS OF CENTRAL
FLORIDA, INC., a Florida corporation;
DON KING’S CONCRETE, INC., a Florida
corporation; HUGH MACDONALD
CONSTRUCTION, INC., a Florida
corporation; IMPERIAL BUILDING
CORPORATION, a Florida corporation;
PREMIER PLASTERING OF CENTRAL
FLORIDA, INC. n/k/a TGK STUCCO, INC.,
a Florida corporation; WEATHERMASTER
BUILDING PRODUCTS, INC., a Florida
corporation; WEINTRAUB INSPECTIONS
& FORENSICS, INC. n/k/a WEINTRAUB
ENGINEERING AND INSPECTIONS,
INC., a Florida corporation; WOLF’S
IRRIGATION & LANDSCAPING, INC., a
Florida corporation; BROWN + COMPANY
ARCHITECTURE, INC., a Florida
corporation; EXPERT PAINTING &
PRESSURE WASHING, INC., a Florida
corporation,
Crossclaim Defendants.
/
WEATHERMASTER BUILDING
PRODUCTS, INC., a Florida Corporation,
Third-Party Plaintiff,
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135247787.1
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,
Third-Party Defendants.
/
DEFENDANT, ROYAL OAK HOMES, LLC’S, REPLY TO PLAINTIFF’S
RESPONSE IN OPPOSITION TO ROYAL OAK’S MOTION FOR
PARTIAL SUMMARY JUDGMENT AS TO TECHNICAL BUILDING
CODE VIOLATIONS AND HYPOTHETICAL,
SPECULATIVE, FUTURE DAMAGES
Defendant, Royal Oak Homes, LLC (“Royal Oak”), replies to Plaintiff’s
Response in Opposition (the “Opposition”) to Royal Oak’s Motion for Partial
Summary Judgment as to Technical Building Code Violations and Hypothetical,
Speculative, Future Damages (the “Motion”).
The Opposition fails to meet Plaintiff’s admitted “duty to present affirmative
evidence in order to defeat” the Motion. Opposition, p. 5, quoting Down v. U.S.,
2007 WL 842136, at *3 (S.D. Fla. March 20, 2007). Plaintiff’s reliance on its expert,
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Felix Martin’s, general statements regarding code violations and damages cannot
defeat his specific, undisputed testimony that: (1) two alleged roof installation code
violations are not code violations, and (2) there was no damage at the lower and
upper roofs at the Villas at Emerald Lake townhomes, regardless of Plaintiff’s
alleged code violations in the installation of these roofs. 1 Motion, pp. 8-11. Plaintiff
offers no evidence to contradict its own expert’s testimony that supports the Motion.
Mr. Martin’s speculation that such damage might occur at “some future time”
cannot support Plaintiff’s damages now under Florida law. Motion, pp. 20-22.
Plaintiff ignores this testimony and offers no authority contrary to the accepted
Florida standard that recoverable damages cannot “be remote consequences of an
allegedly wrongful act” or “of an uncertain or a speculative character.” Motion, pp.
20-21 (citations omitted).
Finally, Plaintiff cannot and does not dispute that Section 553.84 requires both
a Florida Building Code violation and damages causally flowing “as a result of” that
violation. Opposition, p. 6. Instead, Plaintiff relies on an inapplicable 2023
amendment to Section 553.84 that has no bearing on these admitted statutory
requirements for Plaintiff’s claim under Section 553.84. Opposition, pp. 6-7. For
1Plaintiff’s evidence should also be limited to its expert’s testimony to certain alleged roof code
violations at only the single test locations where he claimed they were found. Motion, pp 5-8.
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these reasons, as more fully explained below, the Motion must be granted and the
Opposition rejected.
I. Plaintiff Presents No Affirmative Evidence to Defeat the Motion.
There is no dispute between Plaintiff and Royal Oak that the federal summary
judgment standard now applies under Florida Rule of Civil Procedure 1.510. To
avoid summary judgment on the Motion, then, Plaintiff must “designate specific
facts showing there is a genuine issue for trial,” that is, in Plaintiff’s own words,
“affirmative evidence” to defeat summary judgment. See Opposition, p. 5, quoting
Down v. U.S., 2007 WL 842136, at *3; Motion, pp. 11-12, quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). Royal Oak presented this Court with specific
evidence from Plaintiff’s own expert that there is no material fact issue, entitling
Royal Oak to summary judgment on the Motion. Motion, pp. 5-11. Plaintiff offers
no “affirmative evidence” that “designates specific facts” contrary to that evidence
in the Opposition.
Tellingly, the “Background and Introduction” section in the Opposition cites
no evidence whatsoever. Opposition, pp. 2-4.2 Plaintiff merely asserts the “Project
2 Plaintiff alleges that Royal Oak owes a “statutory duty” under Section 553.84 to the public to
comply with the Florida Building Code, which does not exist in Section 553.84. Opposition, p. 3,
¶ 5; Fla. Stat. § 553.84. Plaintiff also alleges Royal Oak owes a “common law duty to supervise”
but cites no evidence of this duty or Royal Oak’s failure to comply with the standard of care in the
industry. Opposition, p. 3, ¶ 6. Instead, Plaintiff simply cites its Motion for Summary Judgment
against Royal Oak for its alleged “Non-Delegable Duty” (Doc. No. 941). Royal Oak refers this
Court to its opposition to this motion that was filed with the Court on February 21, 2021.
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was ultimately constructed with numerous Code violations,” which is an allegation
devoid of any evidentiary support. Id., p. 3, ¶ 7.3 When Plaintiff first refers to
evidence “of exterior building defects which correlate with water intrusion related
damages” related to “roofing,” among all other building envelope elements, Plaintiff
refers this Court to Mr. Martin’s entire deposition testimony and all his roof and roof
diverter flashing code violation allegations in his expert report for Emerald Lake.
Opposition, pp. 9-10 (emphasis added). 4 Plaintiff cannot “designate specific facts”
contrary to Mr. Martin’s expert testimony supporting the Motion because they do not
exist.
Plaintiff's citation of Mr. Martin’s expert deposition testimony includes the
very testimony relied upon by Royal Oak in the Motion because this citation is to
almost all Mr. Martin’s testimony regarding alleged code violations in the roof
3 By “Project,” Plaintiff means the 10 buildings and 76 townhomes constructed by Royal Oak
subcontractors at the Villas at Emerald Lake Townhomes in Osceola County, Florida. Opposition,
pp. 2-3, ¶¶ 1, 3. Royal Oak refers to these townhomes as “Emerald Lake” in this reply.
4 Plaintiff includes Section R905.2.8.5 from the 2010 and 2014 Florida Building Code
(Residential) in apparent support of Mr. Martin’s alleged testimony that the “installation of the drip
edge was defective” in violation of these code provisions. Opposition, pp. 10-11. Mr. Martin
alleges this condition, the lack of the required 4-inch wide strip of sealant over the drip edge,
existed at a single roof shingle location tested in Emerald Lake, and he admitted this sealant was
sufficiently placed at every other location tested at the low and high roofs. (Martin Dep., Vol. I,
168:25, 169:1-25). And, in any event, Plaintiff still offers no “specific facts” to counter Mr.
Martin’s testimony that there was no damage whatsoever at the four roof shingle locations tested
at the lower and upper roof eaves in Emerald Lake. (Id., 174:7-16, 179:9-19, 180:21-25, 181:1,
182:8-25, 193:1-2). The deposition transcript of Felix Martin and pertinent exhibits were filed with
this Court on January 19, 2024.
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installations and the lack of any damage resulting therefrom to the lower and upper
roofs at Emerald Lake. Opposition, p. 12, citing Martin Dep., Vol I, 171:10-185:8
(14 pages).5 Plaintiff nowhere cites any “specific facts” in Mr. Martin’s testimony
that contradicts his testimony supporting the Motion.
Further, Plaintiff misrepresents Mr. Martin’s testimony. Nowhere did Mr.
Martin testify at the pages cited by Plaintiff that all the Emerald Lake roofs must be
removed and replaced to repair alleged damage elsewhere, such as at the exterior
walls. 6 Opposition, p. 14. That makes no sense either for the upper roofs, as they do
not need to be removed and replaced to repair alleged damage at the exterior walls
at Emerald Lake.
Plaintiff also misrepresents the deposition testimony of the Association’s
corporate representative and Royal Oak’s expert, Brett Newkirk. Plaintiff cites no
testimony by its corporate representative that the Association performed “temporary
5As noted in the Motion, Mr. Martin only found damage at one roof diverter flashing location (the
other two such locations tested had no damage), but there was no damage to the lower and upper
roofs themselves in Emerald Lake. In addition, Mr. Martin admitted the roof diverter flashing
existed at only the low roofs and such flashing could be replaced without taking off the entire
lower roof, any other lower roof, and certainly without replacing the upper roofs at Emerald Lake.
Motion, p. 10, citing (Martin Dep., Vol. I, 183:3-24).
6 Royal Oak does not agree there is any damage at the exterior stucco walls, certainly not
throughout Emerald Lake as alleged by Plaintiff, and Plaintiff specifically refers to no actual
damage at any specific exterior stucco wall location in its Opposition because it is irrelevant to the
Motion, which is focused on the lack of some alleged code violations at the Emerald Lake roofs
and the complete lack of any damage at the Emerald Lake lower and upper roofs allegedly caused
by any code violation.
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repairs to damaged roofs” at Emerald Lake. Opposition, p. 14. The Association’s
corporate representative testified that he was unaware of any repairs or remediation
work, only unspecified work that was bid out, and that he did not know whether that
work was completed or not.7 He certainly did not testify to the location or reason for
any such repair work at Emerald Lake.
Likewise, Mr. Newkirk did not admit to evidence of “damage on the roofs” at
Emerald Lake, as Plaintiff alleges. Id. Rather, Mr. Newkirk testified to damage at the
single roof diverter flashing location on one lower roof in Emerald Lake that was
also identified by Mr. Martin as the only location of any Emerald Lake roof damage.8
Roof diverter flashing can be replaced without removing the entire lower roof and
certainly without removing the upper roofs in Emerald Lake.9 However, the roof
diverter flashing is not the subject of the Motion. The Motion is directed at Plaintiff’s
claim that the entire lower and upper roofs at Emerald Lake need to be removed and
replaced despite Mr. Martin admittedly finding no damage at these locations.
Motion, pp. 5-11, 14-22. With respect to the subject matter of the Motion, Plaintiff
offers no “specific facts” to contradict the evidence supporting the Motion entitling
Royal Oak to partial summary judgment.
7See Opposition, p. 14, citing Plaintiff’s Corporate Representative Deposition Testimony at pages
76:9-77:2.
8 See Opposition, p. 14, citing Mr. Newkirk’s Deposition Testimony at page 127.
9 See citations to Royal Oak’s Motion and Mr. Martin’s deposition testimony at footnote 4 above.
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II. Plaintiff Relies upon an Inapplicable 2023 Amendment to Section 553.84
that neither Changes the Statutory Requirements of a Code Violation that
Causes Damage that Plaintiff fails to Meet nor Establishes an Evidentiary
Standard Contrary to the Well-Established Bar against Remote,
Uncertain, and Speculative Damages.
Section 553.84 requires both a building code violation and actual damage
caused by that code violation. Fla. Stat. § 553.84. The statutory language is
“damaged” as a result of a code violation, which plainly means existing damage
because there is no other way for something to be “damaged.” Id. These statutory
requirements existed before, and they still exist after, the 2023 amendment that
Plaintiff relies upon in its Opposition. Opposition, p. 6.
These two statutory requirements, (1) a code violation that, (2) has caused
existing damage, are the basis for the Motion. Motion, pp. 14-20. As noted above,
Plaintiff has presented no “affirmative evidence” based on “specific facts” to show
that Royal Oak has not demonstrated that Plaintiff cannot prove certain code
violations with respect to the roof installations at Emerald Lake, nor prove any such
code violation proximately caused existing damage to the lower and upper roofs at
Emerald Lake. This is why Royal Oak is entitled to partial summary judgment and
its Motion should be granted.
Plaintiff relies on the 2023 amendment to Section 553.84 that added the
requirement of a “material” code violation and then defined what constituted a
“material violation” of the code. Opposition, pp. 6-8, 15. Plaintiff’s argument
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appears to be that (1) this amendment somehow changed the requirement for a party
to show they were “damaged” as a result of a code violation, material or otherwise,
that still exists, or (2) the definition of what constitutes a “material” code violation
is, in some unexplained way, a substitute for proving actual, existing damages, not
remote consequences, or uncertain or speculative damages. Both arguments are
meritless.
First, this 2023 amendment does not apply to this case. It is well-settled
Florida law that a statute will not be construed as retroactive unless its terms clearly
show that the Legislature intended such a result. Instead, the presumption is that a
legislative act operates prospectively only. See, e.g., State ex rel. Bayless v. Lee, 23
So. 2d 575 (Fla. 1945); Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So. 2d
521 (Fla. 1973); Keystone Water Company v. Bevis, 278 So. 2d 606 (Fla. 1973); Gulf
Pines Memorial Park, Inc. v. Oaklawn Memorial Park Inc., 361 So. 2d 695 (Fla.
1978). Plaintiff does not and cannot show the 2023 amendment to Section 553.84
applies retroactively. This amendment therefore has no bearing on this case.
Second, as noted above, the amendment to add the requirement of a “material”
code violation and to define what that means did not change the existing statutory
requirement that Plaintiff must show it was “damaged” by a code violation. As
demonstrated in the Motion and this reply, Plaintiff cannot make that showing with
respect to (1) certain alleged code violations in the Emerald Lake roof installations
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that are not code violations, and (2) the lower and upper roofs at Emerald Lake that
admittedly are not “damaged.”
Finally, the definition of “material” code violation as a violation “which may
reasonably result, or has resulted, in ... significant damage to the performance of a
building or its systems” is just that, a definition of what constitutes a “material” code
violation. Opposition, pp. 6-7. 10 Plaintiff does not and cannot cite a Florida case that
holds this definition replaces (1) the still existing statutory requirement under
Section 553.84 that Plaintiff show it was “damaged” by such a code violation, or (2)
well-settled Florida law defining recoverable damages. It is still well-settled Florida
law that a party may not recover damages that are remote consequences of an
allegedly wrongful act or damages that are uncertain and speculative. See cases cited
in Motion, pp. 20-21. Here, Mr. Martin admitted there was no damage to the lower
and upper roofs in Emerald Lake. (Martin Dep., Vol I, 174:7-16, 179:9-19, 180:21-
25, 181:1, 182:8-25, 193:1-2). He could only testify that it “doesn’t mean it can’t
happen” at some “future time.” (Id., 174:7-16). The undisputed evidence is that
Plaintiff’s allegations of “damages” for the lower and upper roofs at Emerald Lake
10Plaintiff cites no evidence in the Opposition, and Royal Oak is unaware of any such evidence,
that Mr. Martin even testified that any of the alleged roof installation code violations “may
reasonably result” in “significant damage” to the Emerald Lake townhome buildings or their entire
lower and upper roofs. This seems unlikely given his undisputed testimony that there was no
damage whatsoever at the four roof shingle locations tested at the lower and upper roof eaves in
Emerald Lake. (Martin Dep., Vol. I, 174:7-16, 179:9-19, 180:21-25, 181:1, 182:8-25, 193:1-2).
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are speculative damages at best and, therefore, under well-settled Florida law, Royal
Oak is entitled to partial summary judgment as requested in its Motion.
III. Conclusion.
For all the above reasons, Royal Oak respectively requests this Court grant
Royal Oak’s Motion, reject Plaintiff’s Opposition, and enter partial summary
judgment in Royal Oak’s favor and against Plaintiff on Plaintiff’s claims under
Section 553.84 for the alleged defects in the construction of the Emerald Lake roofs
on the grounds that Plaintiff cannot establish the existence of a code violation and/or
actual, existing damage to the upper and lower Emerald Lake roofs.
Respectfully submitted,
/s/ James Michael Walls
James Michael Walls
Florida Bar No. 706272
Luis Prats
Florida Bar No. 329096
Robin H. Leavengood
Florida Bar No. 0547751
Fiona E. Foley
Florida Bar No. 118668
Alexa M. Nordman
Florida Bar No. 1025863
CARLTON FIELDS, P.A.
4221 W. Boy Scout Boulevard
Tampa, FL 33607-5780
Telephone: (813) 223-7000
Facsimile: (813) 229-4133
mwalls@carltonfields.com
lprats@carltonfields.com
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rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
ffoley@carltonfields.com
Attorneys for Defendant/Crossclaim
Plaintiff, Royal Oak Homes, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 1, 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/ James Michael Walls
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Preview
Filing # 193126440 E-Filed 03/01/2024 02:31:48 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. CASE NO.: 2020-CA-002942-ON ROYAL OAK HOMES, LLC, a Florida limited liability company; ADVANCED DEFENDANT, ROYAL OAK WRAPPING AND CONCRETE HOMES, LLC’S, REPLY TO SOLUTIONS OF CENTRAL FLORIDA, PLAINTIFF’S RESPONSE IN INC., a Florida corporation; DON KING’S OPPOSITION TO ROYAL CONCRETE, INC., a Florida corporation; OAK’S MOTION FOR HUGH MACDONALD CONSTRUCTION, PARTIAL SUMMARY INC., a Florida corporation; IMPERIAL JUDGMENT AS TO BUILDING CORPORATION, a Florida TECHNICAL BUILDING corporation; PREMIER PLASTERING OF CODE VIOLATIONS AND CENTRAL FLORIDA, INC. n/k/a TGK HYPOTHETICAL, STUCCO, INC., a Florida corporation; SPECULATIVE, FUTURE WEATHERMASTER BUILDING DAMAGES PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; THE DIMILLO GROUP, LLC, a Florida limited liability company; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; SUMMERPARK HOMES, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation, 1 135247787.1 Defendants. / ROYAL OAK HOMES, LLC, a Florida limited liability company, Crossclaim Plaintiff, v. ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC., a Florida corporation; DON KING’S CONCRETE, INC., a Florida corporation; HUGH MACDONALD CONSTRUCTION, INC., a Florida corporation; IMPERIAL BUILDING CORPORATION, a Florida corporation; PREMIER PLASTERING OF CENTRAL FLORIDA, INC. n/k/a TGK STUCCO, INC., a Florida corporation; WEATHERMASTER BUILDING PRODUCTS, INC., a Florida corporation; WEINTRAUB INSPECTIONS & FORENSICS, INC. n/k/a WEINTRAUB ENGINEERING AND INSPECTIONS, INC., a Florida corporation; WOLF’S IRRIGATION & LANDSCAPING, INC., a Florida corporation; BROWN + COMPANY ARCHITECTURE, INC., a Florida corporation; EXPERT PAINTING & PRESSURE WASHING, INC., a Florida corporation, Crossclaim Defendants. / WEATHERMASTER BUILDING PRODUCTS, INC., a Florida Corporation, Third-Party Plaintiff, 2 135247787.1 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, Third-Party Defendants. / DEFENDANT, ROYAL OAK HOMES, LLC’S, REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO ROYAL OAK’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO TECHNICAL BUILDING CODE VIOLATIONS AND HYPOTHETICAL, SPECULATIVE, FUTURE DAMAGES Defendant, Royal Oak Homes, LLC (“Royal Oak”), replies to Plaintiff’s Response in Opposition (the “Opposition”) to Royal Oak’s Motion for Partial Summary Judgment as to Technical Building Code Violations and Hypothetical, Speculative, Future Damages (the “Motion”). The Opposition fails to meet Plaintiff’s admitted “duty to present affirmative evidence in order to defeat” the Motion. Opposition, p. 5, quoting Down v. U.S., 2007 WL 842136, at *3 (S.D. Fla. March 20, 2007). Plaintiff’s reliance on its expert, 3 135247787.1 Felix Martin’s, general statements regarding code violations and damages cannot defeat his specific, undisputed testimony that: (1) two alleged roof installation code violations are not code violations, and (2) there was no damage at the lower and upper roofs at the Villas at Emerald Lake townhomes, regardless of Plaintiff’s alleged code violations in the installation of these roofs. 1 Motion, pp. 8-11. Plaintiff offers no evidence to contradict its own expert’s testimony that supports the Motion. Mr. Martin’s speculation that such damage might occur at “some future time” cannot support Plaintiff’s damages now under Florida law. Motion, pp. 20-22. Plaintiff ignores this testimony and offers no authority contrary to the accepted Florida standard that recoverable damages cannot “be remote consequences of an allegedly wrongful act” or “of an uncertain or a speculative character.” Motion, pp. 20-21 (citations omitted). Finally, Plaintiff cannot and does not dispute that Section 553.84 requires both a Florida Building Code violation and damages causally flowing “as a result of” that violation. Opposition, p. 6. Instead, Plaintiff relies on an inapplicable 2023 amendment to Section 553.84 that has no bearing on these admitted statutory requirements for Plaintiff’s claim under Section 553.84. Opposition, pp. 6-7. For 1Plaintiff’s evidence should also be limited to its expert’s testimony to certain alleged roof code violations at only the single test locations where he claimed they were found. Motion, pp 5-8. 4 135247787.1 these reasons, as more fully explained below, the Motion must be granted and the Opposition rejected. I. Plaintiff Presents No Affirmative Evidence to Defeat the Motion. There is no dispute between Plaintiff and Royal Oak that the federal summary judgment standard now applies under Florida Rule of Civil Procedure 1.510. To avoid summary judgment on the Motion, then, Plaintiff must “designate specific facts showing there is a genuine issue for trial,” that is, in Plaintiff’s own words, “affirmative evidence” to defeat summary judgment. See Opposition, p. 5, quoting Down v. U.S., 2007 WL 842136, at *3; Motion, pp. 11-12, quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Royal Oak presented this Court with specific evidence from Plaintiff’s own expert that there is no material fact issue, entitling Royal Oak to summary judgment on the Motion. Motion, pp. 5-11. Plaintiff offers no “affirmative evidence” that “designates specific facts” contrary to that evidence in the Opposition. Tellingly, the “Background and Introduction” section in the Opposition cites no evidence whatsoever. Opposition, pp. 2-4.2 Plaintiff merely asserts the “Project 2 Plaintiff alleges that Royal Oak owes a “statutory duty” under Section 553.84 to the public to comply with the Florida Building Code, which does not exist in Section 553.84. Opposition, p. 3, ¶ 5; Fla. Stat. § 553.84. Plaintiff also alleges Royal Oak owes a “common law duty to supervise” but cites no evidence of this duty or Royal Oak’s failure to comply with the standard of care in the industry. Opposition, p. 3, ¶ 6. Instead, Plaintiff simply cites its Motion for Summary Judgment against Royal Oak for its alleged “Non-Delegable Duty” (Doc. No. 941). Royal Oak refers this Court to its opposition to this motion that was filed with the Court on February 21, 2021. 5 135247787.1 was ultimately constructed with numerous Code violations,” which is an allegation devoid of any evidentiary support. Id., p. 3, ¶ 7.3 When Plaintiff first refers to evidence “of exterior building defects which correlate with water intrusion related damages” related to “roofing,” among all other building envelope elements, Plaintiff refers this Court to Mr. Martin’s entire deposition testimony and all his roof and roof diverter flashing code violation allegations in his expert report for Emerald Lake. Opposition, pp. 9-10 (emphasis added). 4 Plaintiff cannot “designate specific facts” contrary to Mr. Martin’s expert testimony supporting the Motion because they do not exist. Plaintiff's citation of Mr. Martin’s expert deposition testimony includes the very testimony relied upon by Royal Oak in the Motion because this citation is to almost all Mr. Martin’s testimony regarding alleged code violations in the roof 3 By “Project,” Plaintiff means the 10 buildings and 76 townhomes constructed by Royal Oak subcontractors at the Villas at Emerald Lake Townhomes in Osceola County, Florida. Opposition, pp. 2-3, ¶¶ 1, 3. Royal Oak refers to these townhomes as “Emerald Lake” in this reply. 4 Plaintiff includes Section R905.2.8.5 from the 2010 and 2014 Florida Building Code (Residential) in apparent support of Mr. Martin’s alleged testimony that the “installation of the drip edge was defective” in violation of these code provisions. Opposition, pp. 10-11. Mr. Martin alleges this condition, the lack of the required 4-inch wide strip of sealant over the drip edge, existed at a single roof shingle location tested in Emerald Lake, and he admitted this sealant was sufficiently placed at every other location tested at the low and high roofs. (Martin Dep., Vol. I, 168:25, 169:1-25). And, in any event, Plaintiff still offers no “specific facts” to counter Mr. Martin’s testimony that there was no damage whatsoever at the four roof shingle locations tested at the lower and upper roof eaves in Emerald Lake. (Id., 174:7-16, 179:9-19, 180:21-25, 181:1, 182:8-25, 193:1-2). The deposition transcript of Felix Martin and pertinent exhibits were filed with this Court on January 19, 2024. 6 135247787.1 installations and the lack of any damage resulting therefrom to the lower and upper roofs at Emerald Lake. Opposition, p. 12, citing Martin Dep., Vol I, 171:10-185:8 (14 pages).5 Plaintiff nowhere cites any “specific facts” in Mr. Martin’s testimony that contradicts his testimony supporting the Motion. Further, Plaintiff misrepresents Mr. Martin’s testimony. Nowhere did Mr. Martin testify at the pages cited by Plaintiff that all the Emerald Lake roofs must be removed and replaced to repair alleged damage elsewhere, such as at the exterior walls. 6 Opposition, p. 14. That makes no sense either for the upper roofs, as they do not need to be removed and replaced to repair alleged damage at the exterior walls at Emerald Lake. Plaintiff also misrepresents the deposition testimony of the Association’s corporate representative and Royal Oak’s expert, Brett Newkirk. Plaintiff cites no testimony by its corporate representative that the Association performed “temporary 5As noted in the Motion, Mr. Martin only found damage at one roof diverter flashing location (the other two such locations tested had no damage), but there was no damage to the lower and upper roofs themselves in Emerald Lake. In addition, Mr. Martin admitted the roof diverter flashing existed at only the low roofs and such flashing could be replaced without taking off the entire lower roof, any other lower roof, and certainly without replacing the upper roofs at Emerald Lake. Motion, p. 10, citing (Martin Dep., Vol. I, 183:3-24). 6 Royal Oak does not agree there is any damage at the exterior stucco walls, certainly not throughout Emerald Lake as alleged by Plaintiff, and Plaintiff specifically refers to no actual damage at any specific exterior stucco wall location in its Opposition because it is irrelevant to the Motion, which is focused on the lack of some alleged code violations at the Emerald Lake roofs and the complete lack of any damage at the Emerald Lake lower and upper roofs allegedly caused by any code violation. 7 135247787.1 repairs to damaged roofs” at Emerald Lake. Opposition, p. 14. The Association’s corporate representative testified that he was unaware of any repairs or remediation work, only unspecified work that was bid out, and that he did not know whether that work was completed or not.7 He certainly did not testify to the location or reason for any such repair work at Emerald Lake. Likewise, Mr. Newkirk did not admit to evidence of “damage on the roofs” at Emerald Lake, as Plaintiff alleges. Id. Rather, Mr. Newkirk testified to damage at the single roof diverter flashing location on one lower roof in Emerald Lake that was also identified by Mr. Martin as the only location of any Emerald Lake roof damage.8 Roof diverter flashing can be replaced without removing the entire lower roof and certainly without removing the upper roofs in Emerald Lake.9 However, the roof diverter flashing is not the subject of the Motion. The Motion is directed at Plaintiff’s claim that the entire lower and upper roofs at Emerald Lake need to be removed and replaced despite Mr. Martin admittedly finding no damage at these locations. Motion, pp. 5-11, 14-22. With respect to the subject matter of the Motion, Plaintiff offers no “specific facts” to contradict the evidence supporting the Motion entitling Royal Oak to partial summary judgment. 7See Opposition, p. 14, citing Plaintiff’s Corporate Representative Deposition Testimony at pages 76:9-77:2. 8 See Opposition, p. 14, citing Mr. Newkirk’s Deposition Testimony at page 127. 9 See citations to Royal Oak’s Motion and Mr. Martin’s deposition testimony at footnote 4 above. 8 135247787.1 II. Plaintiff Relies upon an Inapplicable 2023 Amendment to Section 553.84 that neither Changes the Statutory Requirements of a Code Violation that Causes Damage that Plaintiff fails to Meet nor Establishes an Evidentiary Standard Contrary to the Well-Established Bar against Remote, Uncertain, and Speculative Damages. Section 553.84 requires both a building code violation and actual damage caused by that code violation. Fla. Stat. § 553.84. The statutory language is “damaged” as a result of a code violation, which plainly means existing damage because there is no other way for something to be “damaged.” Id. These statutory requirements existed before, and they still exist after, the 2023 amendment that Plaintiff relies upon in its Opposition. Opposition, p. 6. These two statutory requirements, (1) a code violation that, (2) has caused existing damage, are the basis for the Motion. Motion, pp. 14-20. As noted above, Plaintiff has presented no “affirmative evidence” based on “specific facts” to show that Royal Oak has not demonstrated that Plaintiff cannot prove certain code violations with respect to the roof installations at Emerald Lake, nor prove any such code violation proximately caused existing damage to the lower and upper roofs at Emerald Lake. This is why Royal Oak is entitled to partial summary judgment and its Motion should be granted. Plaintiff relies on the 2023 amendment to Section 553.84 that added the requirement of a “material” code violation and then defined what constituted a “material violation” of the code. Opposition, pp. 6-8, 15. Plaintiff’s argument 9 135247787.1 appears to be that (1) this amendment somehow changed the requirement for a party to show they were “damaged” as a result of a code violation, material or otherwise, that still exists, or (2) the definition of what constitutes a “material” code violation is, in some unexplained way, a substitute for proving actual, existing damages, not remote consequences, or uncertain or speculative damages. Both arguments are meritless. First, this 2023 amendment does not apply to this case. It is well-settled Florida law that a statute will not be construed as retroactive unless its terms clearly show that the Legislature intended such a result. Instead, the presumption is that a legislative act operates prospectively only. See, e.g., State ex rel. Bayless v. Lee, 23 So. 2d 575 (Fla. 1945); Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So. 2d 521 (Fla. 1973); Keystone Water Company v. Bevis, 278 So. 2d 606 (Fla. 1973); Gulf Pines Memorial Park, Inc. v. Oaklawn Memorial Park Inc., 361 So. 2d 695 (Fla. 1978). Plaintiff does not and cannot show the 2023 amendment to Section 553.84 applies retroactively. This amendment therefore has no bearing on this case. Second, as noted above, the amendment to add the requirement of a “material” code violation and to define what that means did not change the existing statutory requirement that Plaintiff must show it was “damaged” by a code violation. As demonstrated in the Motion and this reply, Plaintiff cannot make that showing with respect to (1) certain alleged code violations in the Emerald Lake roof installations 10 135247787.1 that are not code violations, and (2) the lower and upper roofs at Emerald Lake that admittedly are not “damaged.” Finally, the definition of “material” code violation as a violation “which may reasonably result, or has resulted, in ... significant damage to the performance of a building or its systems” is just that, a definition of what constitutes a “material” code violation. Opposition, pp. 6-7. 10 Plaintiff does not and cannot cite a Florida case that holds this definition replaces (1) the still existing statutory requirement under Section 553.84 that Plaintiff show it was “damaged” by such a code violation, or (2) well-settled Florida law defining recoverable damages. It is still well-settled Florida law that a party may not recover damages that are remote consequences of an allegedly wrongful act or damages that are uncertain and speculative. See cases cited in Motion, pp. 20-21. Here, Mr. Martin admitted there was no damage to the lower and upper roofs in Emerald Lake. (Martin Dep., Vol I, 174:7-16, 179:9-19, 180:21- 25, 181:1, 182:8-25, 193:1-2). He could only testify that it “doesn’t mean it can’t happen” at some “future time.” (Id., 174:7-16). The undisputed evidence is that Plaintiff’s allegations of “damages” for the lower and upper roofs at Emerald Lake 10Plaintiff cites no evidence in the Opposition, and Royal Oak is unaware of any such evidence, that Mr. Martin even testified that any of the alleged roof installation code violations “may reasonably result” in “significant damage” to the Emerald Lake townhome buildings or their entire lower and upper roofs. This seems unlikely given his undisputed testimony that there was no damage whatsoever at the four roof shingle locations tested at the lower and upper roof eaves in Emerald Lake. (Martin Dep., Vol. I, 174:7-16, 179:9-19, 180:21-25, 181:1, 182:8-25, 193:1-2). 11 135247787.1 are speculative damages at best and, therefore, under well-settled Florida law, Royal Oak is entitled to partial summary judgment as requested in its Motion. III. Conclusion. For all the above reasons, Royal Oak respectively requests this Court grant Royal Oak’s Motion, reject Plaintiff’s Opposition, and enter partial summary judgment in Royal Oak’s favor and against Plaintiff on Plaintiff’s claims under Section 553.84 for the alleged defects in the construction of the Emerald Lake roofs on the grounds that Plaintiff cannot establish the existence of a code violation and/or actual, existing damage to the upper and lower Emerald Lake roofs. Respectfully submitted, /s/ James Michael Walls James Michael Walls Florida Bar No. 706272 Luis Prats Florida Bar No. 329096 Robin H. Leavengood Florida Bar No. 0547751 Fiona E. Foley Florida Bar No. 118668 Alexa M. Nordman Florida Bar No. 1025863 CARLTON FIELDS, P.A. 4221 W. Boy Scout Boulevard Tampa, FL 33607-5780 Telephone: (813) 223-7000 Facsimile: (813) 229-4133 mwalls@carltonfields.com lprats@carltonfields.com 12 135247787.1 rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com ffoley@carltonfields.com Attorneys for Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 1, 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/ James Michael Walls 13 135247787.1