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Filing # 192455528 E-Filed 02/21/2024 04:27:53 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR OSCEOLA COUNTY, FLORIDA
VILLAS AT EMERALD LAKE
HOMEOWNERS ASSOCIATION, INC., a
Florida not for profit corporation,
Plaintiff,
v. CASE NO.: 2020-CA-002942-ON
ROYAL OAK HOMES, LLC, a Florida ROYAL OAK HOMES, LLC’S
limited liability company; ADVANCED SECOND REQUEST FOR
WRAPPING AND CONCRETE JUDICIAL NOTICE
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; 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,
Defendants.
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135194735.1
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,
v.
ALL GLASS INSTALLATION COPRP., a
Florida corporation; CASEY HAWKINS
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135194735.1
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.
/
ROYAL OAK HOMES, LLC’S
SECOND REQUEST FOR JUDICIAL NOTICE
Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC (“Royal Oak”),
pursuant to Sections 90.202(9), 90.202(12), and 90.203 of the Florida Statutes,
hereby requests this Court take judicial notice of the documents attached hereto as
Composite Exhibit A.
Florida Statutes Section 90.202(6) provides that a court may take judicial
notice of “[r]ecords of any court of this state or of any court of record of the United
States or of any state, territory, or jurisdiction of the United States.” Fla. Stat. §
90.202(6). Further, Section 90.202(12), Florida Statutes, provides that a court may
take judicial notice of “[f]acts that are not subject to dispute because they are capable
of accurate and ready determination by resort to sources whose accuracy cannot be
questioned.” Fla. Stat. § 90.202(12).
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135194735.1
Finally, Section 90.203, Florida Statutes, states:
A court shall take judicial notice of any matter in Section
90.202 when a party requests it and: (1) Gives each
adverse party timely written notice of the request, proof of
which is filed with the court, to enable the adverse party to
prepare to meet the request. (2) Furnishes the court with
sufficient information to enable it to take judicial notice of
the matter.
Fla. Stat. § 90.203.
Accordingly, Royal Oak requests this Court take judicial notice of the
following documents attached hereto as Composite Exhibit A:
• Order Granting Motion to Dismiss, Siena at Celebration Master Ass’n,
Inc. v. Winter Park Constr. Co., No. 2009-CA-6474 (Fla. Cir. Ct. Sept.
4, 2013);
• Order Granting Motion for Summary Judgment, Cent. Park LV Condo.
Ass’n, Inc. v. Summit Contractors, Inc., et al., No. 2010-CA-015748-O
(Fla. Cir. Ct. May 24, 2013);
• Order on Motion to Dismiss, Promenades at Bella Trae Condo. Ass’n,
Inc. v. Pulte Home Corp., et al., No. 2013-CA-3556 (Fla. Cir. Ct. Jan.
28, 2014);
• Order on Motion for Leave to Amend, Artisan Club Condo. Ass’n, Inc.
v. The St. Joe Co., et al., No. 2009-CA-10804 (Fla. Cir. Ct. July 15,
2015);
• Order on Plaintiff’s Motion (and Incorporated Memorandum of Law)
For Partial Summary Judgment on KB Home’s Non-Delegable Duty,
The Preserve at Eagle Lake Homeowners’ Ass’n, Inc. vs. KB Home
Orlando, LLC, et al., No. 2016-CA-002674 (Fla. Cir. Ct. Dec. 11,
2019);
• Order Denying Plaintiff’s Amended Motion for Summary Judgment on
Pulte’s Twelfth Affirmative Defense, Lakeview Pointe at Horizon West
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135194735.1
Homeowners Ass’n, Inc. v. Pulte Home Corp., et al., No. 2020-CA-
8018-O (Fla. Cir. Ct. Aug. 3, 2023);
• Order on Plaintiff Lake Washington Homeowners Ass’n, Inc.’s Motion
for Summary Judgment on D.R. Horton’s Liability for Construction
Defects and Damages, Lake Washington Homeowners Ass’n, Inc. v.
D.R. Horton, Inc. – Jacksonville, No. 2016-CA-20344 (Fla. Cir. Ct.
April 10, 2018);
• Order Denying Plaintiff’s Motion for Partial Summary Judgment on
Defendant, D.R. Horton, Inc.’s Non-Delegable Duty, and its Fifth,
Sixth, and Twelfth Affirmative Defenses, Ravina at East Park
Homeowners’ Ass’n, Inc. v. D.R. Horton, Inc., et al., No. 2021-CA-
008243 (Fla. Cir. Ct. Sept. 8, 2023); and
• Order Denying Plaintiff’s Motion for Partial Summary Judgment as to
CalAtlantic’s Responsibility for its Subcontractors and Those it Hired
to Design, Construct, Inspect, and Develop the Waterside Pointe
Community, Waterside Pointe Homeowners Ass’n, Inc. v. CalAtlantic
Group, Inc., No. 2018-CA-002328 (Fla. Cir. Ct. Feb. 21, 2023).
The above-referenced orders issued by Florida circuit courts are Public
Records that can easily be verified for accuracy. Simply stated, the above-referenced
composite exhibit contains information that is codified and not subject to dispute.
Additionally, Royal Oak has complied with the requirements of Section 90.203,
Florida Statutes. As such, Royal Oak’s request for judicial notice should be granted.
WHEREFORE, Royal Oak hereby requests this Court take judicial notice of
the Florida trial court orders that are attached as Composite Exhibit A
DATED: February 21, 2024
Respectfully submitted,
/s/ James Michael Walls
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135194735.1
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
rleavengood@carltonfields.com
anordman@carltonfields.com
slambe@carltonfields.com
ffoley@carltonfields.com
nbonilla@carltonfields.com
fgonzalez@carltonfields.com
Attorneys for Defendant/Crossclaim
Plaintiff, Royal Oak Homes, LLC
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on February 21, 2024, the foregoing was
electronically filed with the Clerk of the Court by using the E-filing Portal, which
will electronically serve this document to all registered counsel of record.
/s/ James Michael Walls
6
135194735.1
COMPOSITE EXHIBIT A
Filing # 100159462 E-Filed 12/11/2019 02:48:50 PM
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT,
~N AND FOR SEMINOLE COUNTY, FLORIDA
THE PRESERVE AT EAGLE LAKE
HOMEOWNERS ASSOCIATION, INC., a Florida
not-for-profit corporation, on behalf of itself and as a
representative of its members, Case No.: 2016-CA-002674
Judge: Melissa D. Souto
Plaintiff, CLASS REPRESENTATION
vs.
KB HOME ORLANDO, LLC, a Delaware limited
liability company,
Defendants.
J
AND ALL OTHER RELATED ACTIONS
ORDER ON PLAINTIFF'S MOTION (AND INCORPORATED
MEMORANDUM OF LAVA FOR PARTIAL SUMMARY JUDGMENT
ON KB HOME'S NON-DELEGABLE DUTY
THIS MATTER having come before the Court on Plaintiff's Motion (and Incorporated
Memorandum of Law) for Partial Summary Judgment on KB Home's Non-Delegable Duty, the Court
having reviewed the Parties' filings and heard argument, and otherwise being fully advised in the
premises, IT IS HEREBY,
ORDERED and ADJUDGED as follows:
1. The Plaintiff's Motion is DENIED WITHOUT PREJUDICE
DONE AND ORDERED, in Seminole County, Florida, this 1 lth day of December, 2019.
~(Vl.~a~~.~
THE HONORABLE MELISSA D. SOUTO
Circuit Judge
Conformed Copies:
To all parties via service from the E-Portal
*** E-FILED: GRANT MALOY, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL 12/11/2019 02:48:50 PM.****
Filing # 178870357 E-Filed 08/03/2023 01:59:49 PM
IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COT,rNTY, FLORIDA
LAKEVIEW POINTE AT HOzuZON
WEST HOMEOWNERS ASSOCIATION,
INC., a Florida non-for-profit corporation,
Case No. 2020-CA-8018-O
Plaintiff, Division 43
PULTE HOME CORPORATION, A
foreign corporation, r/k/a PULTE
HOME COMPANY, LLC,a foreign
limited liability company,
Defendant.
PULTE HOME CORPORATION, a
foreign corporation, n&/a PIILTE
HOME COMPANY, LLC, a foreign
limited liability company,
Third-Party Plaintiff,
A & B STUCCO, INC, a Florida
corporation, et al.
Third-Party Defendants
ORDER DENYING PLAINTIFF'S AMENDED MOTION FOR SUMMARY
JUDGMENT ONP LTE'S TWELFTH AFFIRMATIVE DEFENSE
THIS CAUSE came before the Court for hearing on June 21, 2023, on
"Plaintifls Amended Motion for Summary Judgment on Pulte's Twelfth
Affirmative Defense," filed April 24, 2023 (the "Motion"). The Court, having
Page I of5
2020-cA-008018-o
reviewed the file, the Motion, the Response in Opposition to the Motion filed by
Defendant Pulte Home Corporation (hereinafter the "Defendant"), the Reply, having
heard arguments of counsel and being fully advised in the premises, hereby finds as
follows:
Standard
Effective May 1, 2021, Florida adopted the federal summary judgment
standard. In re Amendments to Fla. R. Civ. P. 1.5 10,317 So. 3d 72, 73 (Fla.202l);
see also Fla. R. Civ. P. 1 .5 10 ("[T]his rule shall be construed and applied in
accordance with the federal summary judgment standard."). Accordingly, "the court
shail grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.5.317,322 (1986)
("[S]ummary judgment is proper 'if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law"').
A dispute is genuine "ifthe evidence is such that a reasonablejury could return
a verdict for the nonmoving party." Anderson v. Liberty Lobby, [nc.,477 U.5.242,
248 (1986). A fact is material if it "might affect the outcome of the suit under the
governing law." Id.
Page 2ofS
2020-cA-008018-o
Findinss of Fact. Analvsis and Ruline
Plaintiff initiated this action alleging construction defects. See Second
Amended Complaint dated November 23, 2022 and deemed filed by Order of this
Court dated December 14, 2022 (the "Complaint"). The Complaint contains five
counts against Defendant under theories of (I) failure to fund reserves, (II)
negligence, (III) violation of $553.83, Fla. Stat., (IV) breach of warranties, (V)
Deceptive and Unfair Trade Practices, and (VI) vicarious liabtlity. See Id.
Defendant f,rled an Answer and Affirmative Defenses, containing the Twelfth
Affrrmative Defense, which is the subj ect of the Motion. See Answer and Affirmative
Defenses dated January 5, 2022. The Twelfth Affirmative Defense asserts that
Defendant is entitled to an apportionment ofdamages "based upon the degree of fault
ofother persons or entities, whether parties to this litigation or not," under Fla. Stat. $$
768.31 and 768.81(3), and Fabre v. Marin,623 So. 2d,1182 (Fla. 1993). See Ia.
Plaintiff s Motion asserts that Defendant's Twelfth Affirmative Defense fails
as a matter of law and is negated based on theories of non-delegable duty and
derivative liability. See Motion. In response, Defendant asserts that regardless of a
parly's potential ultimate liability in a case, such party is nevertheless entitled to an
apportionment of fault. See Response in Opposition to Motion. Defendant also
asserts that it "seeks apportionment of fault against other parties who may have
Page 3 of5
2020-cA-00801 8-o
caused or contributed to the alleged damages and with whom Defendant's potential
liability is not joint and several, including Plaintiff itself." See Id.
Fla. Stat. $ 768.81 does not contain any exclusion or provision addressing non-
delegable duties. Additionally, there are no legal authorities before this Court
supporting the proposition that apportionment of fault is not available under the
circumstances presented here . ln Cont'l Fla. Materials, Inc. v. Kusherman,the Court
outlined the distinction between apportionment of fault and ultimate liability,
explaining that together, these concepts insure "responsibility for one's own
negligence, and ultimately who will pay - and to what extent of - the total loss." 91
So. 3d 159, 165 (Fla. 4th DCA 2012). Here, the Court finds that granting Plaintifls
Motion would deprive the Defendant of its right under Florida law to have a trier of
fact apportion fault. See Id.
Accordingly, it is ORDERED and ADJUDGED:
l. Plaintifls Amended Motion for Summary Judgment on Pulte's Twelfth
Affirmative Defense is hereby DENIED.
DONE AND ORDERED in Chambers at Orlando, Orange County,, Florida,,
tr'i.3 day of 2023.
Jorda n
C t Court Judge
Page 4 of5
2020-cA-008018-o
CERTIFICATE OF SERVICE
I IIEREB CER that the foregoing was filed with the Clerk of the Court
this day 2023by using the Florida Courts E-Filing Portal
System. Accordingl y, a copy o f the foregoing is being served on this day to all
attomey(s)/interested parties identified on the ePortal Electronic Service List, via
transmission of Notices of Electronic Filing generated by the ePortal System.
Cathy Stephens, Judicial Assistant to Judge John E. Jordan
Page 5 of 5
2020-cA-0080r 8-o
Filing # 70485812 E-Filed 04/10/2018 12:06:47 PM
IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
CIVIL DIVISION
LAKE WASHINGTON HOMEOWNERS Case No. 2016-CA-20344
ASSOCIATION, INC., a Florida non-profit
corporation,
Plaintiff,
v.
D.R. HORTON, INC. -JACKSONVILLE, a
Florida corporation,
Defendant.
D.R. HORTON, INC. -JACKSONVILLE, a
Florida corporation,
Third-Party Plaintiff,
v.
3'S A COMPANY OF CENTRAL FLORIDA,
INC., et al.,
Third-Party Defendants.
84 LUMBAR COMPANY,
Fourth Party Plaintiff,
v.
COZZI CONSTRUCTION CORPORATION, et
al.,
Fourth Party Defendants.
ORDER ON PLAINTIFF LAI{E WASHINGTON HOMEOWNERS ASSOCIATION,
INC.'S MOTION FOR SUMMARY JUDGMENT ON I .R. HORTON'S LIABILITY FOR
CONSTRUCTION DEFECTS AND DAMAGES
THIS CAUSE carne before the Cout•t on the 28th day of Mai•ch, 2018 and the 3rd day of
April, 2018, for heating on Plaintiff, Lake Washington Homeowners Association, Inc.'s Motion
for Summary Judgment as to D.R. Horton's Liability for Construction Defects and Damages,
(the "Motion") and having reviewed the Motion and the Count's file, heard the arguments of
counsel, and being otherwise fully advised in the premises, the Court makes the following
findings:
The Court finds that Defendant D,R. Horton-Jacksonville, Inc. does not have a non-
delegable duty in relation to the claims brought by the Association under Florida Statute
§553.84.
It is, therefore:
ORD~I2ED AND ADJUDGED;
1. The Motion is DENIED.
`~ ~^
SO ORDERED, in Open Court, at Viera, Brevard County, Florida, this ~ day of April,
2018.
CHARL S J. ROBERTS
CIRCUIT J DGE
Copies to all counsel of record
Filing # 181422893 E-Filed 09/08/2023 02:56:35 PM
IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
CASE NO. 2021-CA-008243
RAVINA AT EAST PARK
HOMEOWNERS’ ASSOCIATION,
INC.
Plaintiff,
v.
D.R. HORTON, INC.; A.B. DESIGN
GROUP, INC.; ADVANCED WRAPPING
AND CONCRETE SOLUTIONS OF
CENTRAL FLORIDA, INC.; BRAVEN
PAINTING INC.; C & M CONCRETE
CONSTRUCTION, INC.; COLLIS
ROOFING, INC.; CR CONSTRUCTION,
INC.; ODC CONSTRUCTION, LLC;
RICHARD AND RICE CONSTRUCTION
COMPANY, INC.; SOLAR-TITE, INC.
Defendants.
_______________________________________/
And the related Crossclaims and
Third Party Claims
_______________________________________/
Order Denying Plaintiff’s Motion for Partial Summary Judgment on
Defendant, D.R. Horton, Inc.’s Non-Delegable Duty, and its Fifth,
Sixth, and Twelfth Affirmative Defenses
This action comes before the Court on Plaintiff’s Motion for Partial Summary
Judgment on Defendant, D.R. Horton, Inc.’s Non-Delegable Duty, and its Fifth, Sixth,
and Twelfth Affirmative Defenses (filed 4/4/2023). A hearing on the motion was held
Page 1 of 8
on July 17, 2023. The Court has reviewed the motion, response, and supporting
materials. For the reasons that follow, the Court denies the motion.
This is a construction defect action arising from the construction of 15
buildings known as the Ravina Townhomes. Ravina at East Park Homeowners’
Association, Inc. filed suit against the general contractor D.R. Horton, Inc. and nine
of its subcontractors based on alleged construction defects. Importantly, the
Association does not assert contractual claims. The Association asserts two claims
against D.R. Horton – negligence and violation of the Florida Building Code under
section 553.84.
DR. Horton raised a number of affirmative defenses, three of which are at
issue. The Fifth Affirmative Defense asserts that the alleged damages were caused
by the actions of the nine co-defendant subcontractors. The Sixth Affirmative
Defense, directed to the building code claim, asserts that D.R. Horton cannot be held
vicariously liable for alleged violations of the Florida Building Code. Similar to the
Fifth Affirmative Defense, the Twelfth Affirmative Defense seeks to apportion
liability under section 768.81 based on the alleged fault of the nine co-defendant
subcontractors, unit owners, maintenance personnel, and others.
Three related propositions resolve the Association’s motion: 1) D.R. Horton
cannot be held jointly and severally liable in tort or under section 553.84; 2) D.R.
Horton, as a general matter, cannot be held vicariously liable for the acts of
subcontractors; and 3) D.R. Horton does not owe a nondelegable tort duty. These
propositions are addressed in turn.
1. D.R. Horton cannot be held jointly and severally liable in tort or under
section 553.84.
The Court starts with the statutory text. Section 768.81(3), Florida Statutes
provides that in “a negligence action, the court shall enter judgment against each
party liable on the basis of such party’s percentage of fault and not on the basis of the
doctrine of joint and several liability.” The statute eliminated joint and several
liability.
Page 2 of 8
“Negligence action” is broadly defined. It means “a civil action for damages
based upon a theory of negligence, strict liability, products liability, professional
malpractice whether couched in terms of contract or tort, or breach of warranty and
like theories.” § 768.81(1)(c), Fla. Stat. The Association’s negligence claim is plainly
a “negligence action” under section 768.81(1)(c). Thus, by operation of section 768.81,
joint and several liability cannot be had with respect to the Association’s negligence
claim. The more novel question is whether the building code claim under section
553.84 permits joint and several liability. The Court concludes that it does not.
First, it’s unclear whether joint and several liability could have ever applied
under section 553.84 even without section 768.81’s abolition of joint and several
liability. The building code cause of action imposes liability on “the person or party
who committed the violation.” § 553.84, Fla. Stat. (emphasis added). The focus on the
person that committed the violation does not lend itself to imposition of joint and
several liability. See Sierra v. Allied Stores Corp., 538 So. 2d 943, 944 (Fla. 3d DCA
1989) (concluding that a store owner could not be liable for building code violation
committed by independent contractor). The use of the definitive article “the” before
“person or party” “limits that to which it refers to only one, to the exclusion of all
others.” Golf Scoring Sys. Unlimted, Inc. v. Remedio, 877 So. 2d 827, 829 (Fla. 4th
DCA 2004). Nothing about the language of section 553.84 suggests incorporation of
the doctrine of joint and several liability.
Second, even assuming the statutory cause of action imposed joint and several
liability, section 768.81 would operate to abolish it because the statutory claim is “a
civil action for damages based on a theory of negligence.” § 768.81(1)(c), Fla. Stat.
Statutory causes of action can come within the orbit of a “negligence action” under
section 768.81. See Peoples Gas Sys. v. Posen Constr., Inc., 322 So. 3d 604, 613 (Fla.
2021) (“Because [Florida’s Underground Facility Damage Prevention and Safety] Act
authorizes a negligence-based cause of action, we conclude that the comparative fault
statute governs claims brought under the Act.”). And it has been recognized that a
building code claim “has its basis in a negligent act.” Stallings v. Kennedy Elect., Inc.,
710 So. 2d 195, 196 (Fla. 5th DCA 1998). That understanding is confirmed by the text
Page 3 of 8
of section 553.84 which permits plaintiffs to overcome a particular defense to a
building code claim when “the person or party knew or should have known that the
material violation existed” – the classic articulation of a negligence standard.
In making this determination, the Court is guided by the analysis in
Bre/Cocoa Beach Owner, L.L.C. v. Rolyn Companies, Inc., 2012 WL 12905849 (M.D.
Fla. Nov. 30, 2012). There, after analyzing the nature of the statutory cause of action,
the court declined to strike a Fabre defense because a building code claim is akin to
a “negligence action.” Id. at * 7-8. Even if section 553.84 contemplated joint and
several liability, the comparative fault statute applies to the Association’s statutory
building code claim.
This conclusion is bolstered by the fact that section 768.81 specifically
identifies certain statutory claims that are excluded from the scope of the statute.
Namely, the elimination of joint and several liability does not apply “to any cause of
action as to which application of the doctrine of joint and several liability is
specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or
chapter 895.” § 768.81(4) Fla. Stat. Chapter 553 is not included despite the fact that
the statutory building code claim had existed for decades preceding the abolition of
joint and several liability. This shows two things. First, statutory causes of action are
not outside the scope of the statute. Second, it supports the view that section 553.84
never contemplated joint and several liability in the first place.
In short, comparative fault (not joint and several liability) applies to the
Association’s negligence claim and its statutory building code claim.
2. D.R. Horton cannot be held vicariously liable for the negligent acts or
omissions of subcontractors.
The next proposition important to the resolution of the Association’s motion is
a basic principle of the law of agency. That is, a party cannot be held vicariously liable
for the acts of an independent subcontractor. See, e.g., Paul N. Howard Co. v.
Affholder, Inc., 701 So. 3d 402, 404 (Fla. 5th DCA 1997) (general contractor “cannot
be held vicariously, constructively, derivatively, or technically liable for
[subcontractor’s] alleged negligence.”). Of course, if the alleged liability of the general
Page 4 of 8
contractor is contractually based, the general contractor would be responsible for a
breach regardless of who it contracted with to perform its contractual obligations.
See, e.g., Diplomat Properties Ltd. P’ship v. Tecnoglass, LLC, 114 So. 3d 357, 362 (Fla.
4th DCA 2013) (distinguishing Paul N. Howard where the claim against the
contractor sounded in contract instead of tort). That is not vicarious tort liability.
The well-settled principle that a party is not liable for the acts of independent
contractors applies to the Association’s negligence claim. The principle likewise
applies to the building code claim. Again, the statute imposes liability on “the person
or party who committed the violation.” § 553.84, Fla. Stat. And liability under the
statute is “in accordance with common-law principles” such as those of basic agency
law. Sierra, 538 So.2d at 944. D.R. Horton cannot be held vicariously liable for the
acts of its subcontractors.
3. D.R. Horton does not owe a nondelegable tort duty.
Understanding that section 768.81 applies and that a general contractor is not
vicariously liable for the acts of subcontractors does not necessarily resolve the
Association’s motion. That’s so because “under a system where a party is subject to a
nondelegable duty, the party subject to the nondelegable duty is directly liable for the
breach of that duty, and the assignment of liability based on the tortious acts of
another is not a consideration.” Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d
864, 875 (Fla. 2d DCA 2010). The Association claims D.R. Horton owes a nondelegable
tort duty that would prohibit the apportionment of fault to the subcontractors. In
contrast to vicarious liability, which is indirect, the liability imposed by a
nondelegable duty is direct.
The cases concerning nondelegable duties have not provided a very helpful
standard for assessing whether one exists. It is essentially a policy judgment.
“Unfortunately, there are no specific criteria for determining whether or not a duty
is nondelegable except for the rather ambiguous defining characteristic that the
responsibility is so important to the community that the employer should not be
allowed to transfer it to a third party.” Dixon v. Whitfield, 654 So. 2d 1230, 1232 (Fla.
1st DCA 1995). The focus, as far as the Court can tell, is the importance to the broader
Page 5 of 8
public. For example, a nondelegable duty arises when a contractor is performing work
involving safety risks posed by inherently dangerous or ultrahazardous activities. See
Daniel v. Morris, 181 So. 3d 1195, 1198 n. 4 (Fla. 5th DCA 2015) (“Generally,
[nondelegable duties] arise from the common law in the performance of
ultrahazardous activities or activities that are of such importance to the community
that responsibility cannot be transferred to a third party agent or independent
contractor.”).
There is no doubt that the general contractor’s obligation to perform with the
appropriate level of workmanship is important. It is important to the parties to the
contract. But it is not something that has a broader concern to the general public
sufficient to recognize a nondelegable tort duty. Again, the fundamental distinction
between contractual obligations and tort obligations is critical.
“Contracts, by their nature, do not ordinarily permit the apportionment of fault
to non-parties in the event of a breach” because “the duties undertaken in contracts
are personal to those parties and therefore cannot be delegated.” Bre/Cocoa Beach
Owner, LLC, 2012 WL 12905849 at *3. Contractual duties, of course, can be enforced
by bringing a claim sounding in contract. Thus, in the colloquial sense, contractual
duties are nondelegable. See Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959)
(holding that a contractual duty of a general contractor to a hotel owner with whom
it contracted was nondelegable and could not be committed to an independent
subcontractor); Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d 862, 863 (Fla.
3d DCA 1993) (“Mills does not stand for the proposition that liability for breach of
contractual duties automatically forms the basis of recovery in tort by parties not
related to the contract . . . .”).
But the Association has not sued D.R. Horton for breach of contract. This is a
negligence action. The Association conflates a contractual duty (which, by its nature,
is nondelegable) with a free flowing common law tort duty. A recent case – Garcia v.
Southern Cleaning Service, Inc., 360 So. 3d 1209 (Fla. 1st DCA 2023) – is illustrative.
There, Winn-Dixie contracted with a cleaning company to perform floor-cleaning
services. The contractor, in turn, subcontracted the work to an independent
Page 6 of 8
contractor. Id. at 1210. The plaintiff tripped and fell in a Winn Dixie store and
brought an action against the contractor. Id. The contractor sought summary
judgment arguing that it was not liable for the negligence of its subcontractor. Id.
The trial court’s summary judgment in favor of the contractor was affirmed on appeal.
The First DCA rejected the plaintiff’s contention that the contractor’s contract
with Winn Dixie created a nondelegable duty. Id. at 1211-12. Garcia is in the context
of the duty to maintain – an area where it has long been recognized that a property
owner’s duty is nondelegable. Even in that context, a contractor hired to clean
property does not owe a nondelegable tort duty. Garcia confirms the significant
distinction between nondelegable duties to contracting parties and nondelegable tort
duties that are limited to the rare circumstances where “the responsibility is so
important to the community that the employer should not be allowed to transfer it to
a third party.”” Dixon, 654 So. 2d at 1232.
The cases cited by the Association do not support the existence of a
nondelegable tort duty in this context. Nor is the Court persuaded by the Association’s
related arguments that a nondelegable duty can be imposed based on Chapter 489 or
D.R. Horton’s permit application. Chapter 489 is a regulatory statute that confers
powers on the Department of Business and Professional Regulation or local licensing
boards to enforce its provisions. Chapter 489 does not create a private cause of action.
Murthy v. N. Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994). To remove any doubt,
section 489.131(12) provides that “the provisions of this part shall not be construed
to create a civil cause of action.” The Court declines the Association’s invitation to
defy this command by finding a new nondelegable tort duty.
4. Conclusion
Florida law does not support imposition of joint and several liability for
negligence claims or building code violation claims. A general contractor cannot be
held vicariously liable for the acts of independent subcontractors. And there is no
support for the imposition of a general nondelegable tort duty owed by a general
contractor in this context. These propositions preclude summary judgment on D.R.
Horton’s Fifth, Sixth, and Twelfth Affirmative Defenses. Plaintiff’s Motion for Partial
Page 7 of 8
Filing # 167236902 E-Filed 02/21/2023 03:06:06 PM
IN THE CIRCUIT COURT OF THE
FIFTH JUDICIAL CIRCUIT, IN AND FOR
LAKE COUNTY, FLORIDA
WATERSIDE POINTE HOMEOWNERS
ASSOCIATION, INC.,
Plaintiff, CASE NO.: 2018-CA-002328,
Consolidated with
v. CASE NO. 2017-CA-002210
CALATLANTIC GROUP, INC., successor
by merger to the former CALATLANTIC
GROUP, INC., which was successor by
merger to THE RYLAND GROUP, INC.,
Defendant.
_____________________________________/
ORDER
DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS
TO CALATLANTIC’S RESPONSIBILITY FOR ITS SUBCONTRACTORS AND
THOSE IT HIRED TO DESIGN, CONSTRUCT, INSPECT, AND DEVELOP THE
WATERSIDE POINTE COMMUNITY
THIS CAUSE came before the Court on February 8, 2023 on Plaintiff,
Waterside Pointe Homeowner’s Association, Inc.’s (“Plaintiff” or “Association”)
Motion for Partial Summary Judgment as to Defendant, CalAtlantic Group, Inc.’s
(“CalAtlantic”) Responsibility for its Subcontractors and Those It Hired to Design,
Construct, Inspect, and Develop the Waterside Pointe Community Related to
CalAtlantic’s Affirmative Defenses 23, 24, 25, and 27 filed on November 1, 2022.
The Court, having considered Plaintiff’s Motion, CalAtlantic’s Response,
Plaintiff’s Reply, the parties’ arguments, and relevant authorities, rules as
follows:
132068423.1
I. Relevant Background
1. The Association is a homeowners association organized pursuant to
Chapter 720, Florida Statutes and is responsible for operating the Waterside
Pointe residential community located in Groveland, Florida (“Waterside Pointe,”
“Community,” “Project,” or “Property”).
2. The Project was developed by The Ryland Group, Inc. (“Ryland”),
which later merged with CalAtlantic. Ryland and CalAtlantic are collectively
referred to herein as “CalAtlantic.”
3. It is undisputed that CalAtlantic was the general contractor for the
original construction of the 104 townhomes in Waterside Pointe (“Townhomes”).
4. It is undisputed that CalAtlantic subcontracted with various
independent contractors to construct the Townhomes.
5. It is undisputed that CalAtlantic contracted with various trades to
design and construct the Waterside Pointe common area infrastructure and
improvements. As further outlined below, however, there is a genuine dispute of
material fact as to CalAtlantic’s role in entering into those common area
contracts.
6. The operative complaint in this case is the Fourth Amended
Complaint, as modified by the Court’s September 27, 2022 Order on
CalAtlantic’s Motion to Strike Allegations in Plaintiff’s Fourth Amended
Complaint. The causes of action asserted against CalAtlantic in the Fourth
Amended Complaint are: (i) Count II – Breach of Implied Warranties as to
common areas (horizontal construction components only) (4th Am. Compl. ¶¶
2
132068423.1
93–101); (ii) Count III – Violation of Section 553.84, Florida Statutes (4th Am.
Compl. ¶¶ 102–111); (iii) Count VIII – Negligence (4th Am. Compl. ¶¶ 147–155);
and (iv) Count X – Violation of Section 720.307, Florida Statutes (4th Am. Compl.
¶¶ 162–166). Plaintiff is seeking to recover the cost to repair alleged construction
defects in the counts seeking monetary damages against CalAtlantic in the
Fourth Amended Complaint (i.e., Counts II, III, and VIII).
7. CalAtlantic filed an Answer and Affirmative Defenses to the Fourth
Amended Complaint on October 4, 2022.
8. The Motion at issue relates to CalAtlantic’s Affirmative Defenses
seeking to apportion liability to implicated trades and non-parties.
II. The Court’s Ruling
9. The resolution of this Motion is guided by two fundamental
principles of Florida law. First, subject to limited exceptions outlined in section
768.81(4), Florida Statutes, the Florida Legislature has abolished joint and
several liability in “civil action[s] for damages based upon a theory of negligence,
strict liability, products liability, professional malpractice whether couched in
terms of contract or tort, or breach of warranty and like theories” and has made
clear that apportionment of liability is the rule in Florida. See § 768.81, Fla. Stat.
Second, the general rule in Florida is that one who hires an independent
contractor cannot be liable for injuries caused by an independent contractor’s
negligence. Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d 862, 863 (Fla.
3d DCA 1993); E.J. Strickland Constr., Inc. v. Dep’t of Agriculture, 515 So. 2d
1331, 1335 (Fla. 5th DCA 1987).
3
132068423.1
10. In the face of this well-recognized authority, Plaintiff argues the
theories of non-delegable duty and derivative liability preclude apportionment of
damages for Plaintiff’s claims based in tort. These two theories run contrary to
the general principles set forth above and, therefore, have been narrowly
circumscribed in the law to certain specific contexts that are not at issue here.
In fact, despite the frequency of lawsuits seeking damages for repairs in planned
developments in Florida, Plaintiff has not presented the Court with any reported
appellate decision that denies apportionment in a lawsuit similar to this one.
Rather, Plaintiff presented the Court with inapposite authorities that arose in
significantly different and narrow contexts where non-delegable duties and
derivative liability have been traditionally recognized, as will be explained below.
11. Initially, Plaintiff argues that CalAtlantic assumed a non-delegable
duty in tort pursuant to the undertaker’s doctrine explained in Clay Electric
Coop. v. Johnson, 873 So. 2d 1182 (Fla. 2003). The Clay Electric case, however,
addresses only the existence of duties in the first instance, not the concept of
non-delegable duties. Id. at 1185. This is underscored by the fact that
apportionment was actually anticipated to occur at trial in the Clay Electric case.
See id. at 1195 (Pariente, Anstead, and Lewis, JJ., specially concurring)
(explaining that the Court’s ruling as to the existence of an assumed duty in that
case did not preclude apportionment to the motorist and pedestrian at trial).
12. Plaintiff next asserts that CalAtlantic assumed a non-delegable duty
through contract. Namely, the sales contracts between CalAtlantic and the
original purchasers. Plaintiff did not file a breach-of-contract claim in this case,
4
132068423.1
however, and Plaintiff (the Association) is not a party to the sales contracts
between CalAtlantic and the original purchasers on which Plaintiff relies in any
event. Accordingly, all of the contract-based cases cited by Plaintiff are
distinguishable from this tort case. Although apportionment is precluded in
certain breach-of-contract lawsuits, such reasoning does not extend to tort
lawsuits where no breach of contract is alleged, which is the scenario here.
Plaintiff’s Motion cites multiple breach-of-contract cases without acknowledging
this critical distinction. The reasoning of those breach-of-contract cases do not
apply in this tort lawsuit.
13. Plaintiff additionally relies on a building permit for one out of 104
Townhomes to argue that a building permit creates a non-delegable duty in tort.
The Court would expect this broad proposition to arise repeatedly in Florida courts
if it existed. Plaintiff cited only a single authority from over fifty years ago in a
much different case, which does not support application of Plaintiff’s broad
proposition to this case. See Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So. 2d
767 (Fla. 3d DCA 1968). The Bialkowicz case arose in a quite different context
where an inherently dangerous activity caused damage to another property, not
the property for which the building permit was issued. Id. at 771–73. Plaintiff
has presented the Court with no reported appellate decision that holds that a
building permit creates a non-delegable duty in tort for alleged repair damages
to the actual property for which the building permit was issued. Bialkowicz is
not applicable to the circumstances in this case.
5
132068423.1
14. Plaintiff also relies on the City of Groveland Ordinance 2003-03-14,
designating the property as a planned unit development (“PUD”) (“Ordinance”),
to support its argument that “in developing the community as a whole, and by
virtue of the PUD it obtained, CAG assumed the duty to comply with the
applicable building codes in this case.” (Motion at 12–13). Plaintiff did not,
however, cite any supporting legal authority and did not offer any explanation
for how the Ordinance may create a non-delegable duty in tort owed by
CalAtlantic under Florida law. The Court declines to hold that the Ordinance
establishes the existence of a non-delegable duty owed by CalAtlantic, given the
absence of legal or factual support for Plaintiff’s position in this regard.
15. Plaintiff further asserts that Chapter 489, Florida Statutes imposes
a non-delegable duty on CalAtlantic because it was a business organization,
whose licensed qualifying agent pulled the permits for the original construction
of the Townhomes. The Court finds it noteworthy that Plaintiff has only named
CalAtlantic as a Defendant in this case, and not any licensed individuals that
pulled the permit for the original construction of the Townhomes or any common
area infrastructure or improvements at issue in this case. Further, the only
authorities that Plaintiff cites for this contention are non-binding trial court
orders, which do not establish any non-delegable or statutory tort duty on a
business organization that associates with a licensed individual such as
CalAtlantic.
16. It is settled law in Florida that Chapter 489 does not create a private,
civil right of action for the license-holder’s violation of supervisory
6
132068423.1
responsibilities (or any other responsibility under Chapter 489). Murthy v. N.
Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994); Scherer v. Villas Del Verde
Homeowners Ass’n, Inc., 55 So. 3d 602, 604 (Fla. 2d DCA 2011). Following
Murthy, the Florida Legislature enacted section 489.131(12), Florida Statutes,
which declared that no civil causes of action were to be construed from Chapter
489 unless specifically provided. § 489.131(12), Fla. Stat. This section empowers
governing authorities to punish for licensing infractions, such as a breach of a
license-holder’s duty to supervise, through regulatory means. See § 489.131(3)–
(7), Fla. Stat. Plaintiff has not provided the Court with any reported appellate
decisions holding that Chapter 489 supersedes or eliminates the Florida
Legislature’s expressed intent to (i) prohibit a private cause of action for licensing
infractions; (ii) abolish joint and several liability in most tort cases; and (iii)
establish apportionment in tort cases as the general rule in Florida. This Court
declines to expand existing law by recognizing a non-delegable duty in tort
inferred from the licensing statutes under the circumstances of this case.
17. Plaintiff alternatively suggests that CalAtlantic should be
derivatively liable in tort. Plaintiff cites Grobman v. Posey, 863 So. 2d 1230 (Fla.
4th DCA 2003), which is a case involving med
Preview
Filing # 192455528 E-Filed 02/21/2024 04:27:53 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR OSCEOLA COUNTY, FLORIDA VILLAS AT EMERALD LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not for profit corporation, Plaintiff, v. CASE NO.: 2020-CA-002942-ON ROYAL OAK HOMES, LLC, a Florida ROYAL OAK HOMES, LLC’S limited liability company; ADVANCED SECOND REQUEST FOR WRAPPING AND CONCRETE JUDICIAL NOTICE 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; 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, Defendants. 1 135194735.1 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, v. ALL GLASS INSTALLATION COPRP., a Florida corporation; CASEY HAWKINS 2 135194735.1 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. / ROYAL OAK HOMES, LLC’S SECOND REQUEST FOR JUDICIAL NOTICE Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC (“Royal Oak”), pursuant to Sections 90.202(9), 90.202(12), and 90.203 of the Florida Statutes, hereby requests this Court take judicial notice of the documents attached hereto as Composite Exhibit A. Florida Statutes Section 90.202(6) provides that a court may take judicial notice of “[r]ecords of any court of this state or of any court of record of the United States or of any state, territory, or jurisdiction of the United States.” Fla. Stat. § 90.202(6). Further, Section 90.202(12), Florida Statutes, provides that a court may take judicial notice of “[f]acts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.” Fla. Stat. § 90.202(12). 3 135194735.1 Finally, Section 90.203, Florida Statutes, states: A court shall take judicial notice of any matter in Section 90.202 when a party requests it and: (1) Gives each adverse party timely written notice of the request, proof of which is filed with the court, to enable the adverse party to prepare to meet the request. (2) Furnishes the court with sufficient information to enable it to take judicial notice of the matter. Fla. Stat. § 90.203. Accordingly, Royal Oak requests this Court take judicial notice of the following documents attached hereto as Composite Exhibit A: • Order Granting Motion to Dismiss, Siena at Celebration Master Ass’n, Inc. v. Winter Park Constr. Co., No. 2009-CA-6474 (Fla. Cir. Ct. Sept. 4, 2013); • Order Granting Motion for Summary Judgment, Cent. Park LV Condo. Ass’n, Inc. v. Summit Contractors, Inc., et al., No. 2010-CA-015748-O (Fla. Cir. Ct. May 24, 2013); • Order on Motion to Dismiss, Promenades at Bella Trae Condo. Ass’n, Inc. v. Pulte Home Corp., et al., No. 2013-CA-3556 (Fla. Cir. Ct. Jan. 28, 2014); • Order on Motion for Leave to Amend, Artisan Club Condo. Ass’n, Inc. v. The St. Joe Co., et al., No. 2009-CA-10804 (Fla. Cir. Ct. July 15, 2015); • Order on Plaintiff’s Motion (and Incorporated Memorandum of Law) For Partial Summary Judgment on KB Home’s Non-Delegable Duty, The Preserve at Eagle Lake Homeowners’ Ass’n, Inc. vs. KB Home Orlando, LLC, et al., No. 2016-CA-002674 (Fla. Cir. Ct. Dec. 11, 2019); • Order Denying Plaintiff’s Amended Motion for Summary Judgment on Pulte’s Twelfth Affirmative Defense, Lakeview Pointe at Horizon West 4 135194735.1 Homeowners Ass’n, Inc. v. Pulte Home Corp., et al., No. 2020-CA- 8018-O (Fla. Cir. Ct. Aug. 3, 2023); • Order on Plaintiff Lake Washington Homeowners Ass’n, Inc.’s Motion for Summary Judgment on D.R. Horton’s Liability for Construction Defects and Damages, Lake Washington Homeowners Ass’n, Inc. v. D.R. Horton, Inc. – Jacksonville, No. 2016-CA-20344 (Fla. Cir. Ct. April 10, 2018); • Order Denying Plaintiff’s Motion for Partial Summary Judgment on Defendant, D.R. Horton, Inc.’s Non-Delegable Duty, and its Fifth, Sixth, and Twelfth Affirmative Defenses, Ravina at East Park Homeowners’ Ass’n, Inc. v. D.R. Horton, Inc., et al., No. 2021-CA- 008243 (Fla. Cir. Ct. Sept. 8, 2023); and • Order Denying Plaintiff’s Motion for Partial Summary Judgment as to CalAtlantic’s Responsibility for its Subcontractors and Those it Hired to Design, Construct, Inspect, and Develop the Waterside Pointe Community, Waterside Pointe Homeowners Ass’n, Inc. v. CalAtlantic Group, Inc., No. 2018-CA-002328 (Fla. Cir. Ct. Feb. 21, 2023). The above-referenced orders issued by Florida circuit courts are Public Records that can easily be verified for accuracy. Simply stated, the above-referenced composite exhibit contains information that is codified and not subject to dispute. Additionally, Royal Oak has complied with the requirements of Section 90.203, Florida Statutes. As such, Royal Oak’s request for judicial notice should be granted. WHEREFORE, Royal Oak hereby requests this Court take judicial notice of the Florida trial court orders that are attached as Composite Exhibit A DATED: February 21, 2024 Respectfully submitted, /s/ James Michael Walls 5 135194735.1 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 rleavengood@carltonfields.com anordman@carltonfields.com slambe@carltonfields.com ffoley@carltonfields.com nbonilla@carltonfields.com fgonzalez@carltonfields.com Attorneys for Defendant/Crossclaim Plaintiff, Royal Oak Homes, LLC CERTIFICATE OF SERVICE I HEREBY CERTIFY that on February 21, 2024, the foregoing was electronically filed with the Clerk of the Court by using the E-filing Portal, which will electronically serve this document to all registered counsel of record. /s/ James Michael Walls 6 135194735.1 COMPOSITE EXHIBIT A Filing # 100159462 E-Filed 12/11/2019 02:48:50 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT, ~N AND FOR SEMINOLE COUNTY, FLORIDA THE PRESERVE AT EAGLE LAKE HOMEOWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, on behalf of itself and as a representative of its members, Case No.: 2016-CA-002674 Judge: Melissa D. Souto Plaintiff, CLASS REPRESENTATION vs. KB HOME ORLANDO, LLC, a Delaware limited liability company, Defendants. J AND ALL OTHER RELATED ACTIONS ORDER ON PLAINTIFF'S MOTION (AND INCORPORATED MEMORANDUM OF LAVA FOR PARTIAL SUMMARY JUDGMENT ON KB HOME'S NON-DELEGABLE DUTY THIS MATTER having come before the Court on Plaintiff's Motion (and Incorporated Memorandum of Law) for Partial Summary Judgment on KB Home's Non-Delegable Duty, the Court having reviewed the Parties' filings and heard argument, and otherwise being fully advised in the premises, IT IS HEREBY, ORDERED and ADJUDGED as follows: 1. The Plaintiff's Motion is DENIED WITHOUT PREJUDICE DONE AND ORDERED, in Seminole County, Florida, this 1 lth day of December, 2019. ~(Vl.~a~~.~ THE HONORABLE MELISSA D. SOUTO Circuit Judge Conformed Copies: To all parties via service from the E-Portal *** E-FILED: GRANT MALOY, CLERK OF CIRCUIT COURT SEMINOLE COUNTY, FL 12/11/2019 02:48:50 PM.**** Filing # 178870357 E-Filed 08/03/2023 01:59:49 PM IN THE CIRCUIT COURT FOR THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COT,rNTY, FLORIDA LAKEVIEW POINTE AT HOzuZON WEST HOMEOWNERS ASSOCIATION, INC., a Florida non-for-profit corporation, Case No. 2020-CA-8018-O Plaintiff, Division 43 PULTE HOME CORPORATION, A foreign corporation, r/k/a PULTE HOME COMPANY, LLC,a foreign limited liability company, Defendant. PULTE HOME CORPORATION, a foreign corporation, n&/a PIILTE HOME COMPANY, LLC, a foreign limited liability company, Third-Party Plaintiff, A & B STUCCO, INC, a Florida corporation, et al. Third-Party Defendants ORDER DENYING PLAINTIFF'S AMENDED MOTION FOR SUMMARY JUDGMENT ONP LTE'S TWELFTH AFFIRMATIVE DEFENSE THIS CAUSE came before the Court for hearing on June 21, 2023, on "Plaintifls Amended Motion for Summary Judgment on Pulte's Twelfth Affirmative Defense," filed April 24, 2023 (the "Motion"). The Court, having Page I of5 2020-cA-008018-o reviewed the file, the Motion, the Response in Opposition to the Motion filed by Defendant Pulte Home Corporation (hereinafter the "Defendant"), the Reply, having heard arguments of counsel and being fully advised in the premises, hereby finds as follows: Standard Effective May 1, 2021, Florida adopted the federal summary judgment standard. In re Amendments to Fla. R. Civ. P. 1.5 10,317 So. 3d 72, 73 (Fla.202l); see also Fla. R. Civ. P. 1 .5 10 ("[T]his rule shall be construed and applied in accordance with the federal summary judgment standard."). Accordingly, "the court shail grant summary judgment 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); see also Celotex Corp. v. Catrett, 477 U.5.317,322 (1986) ("[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law"'). A dispute is genuine "ifthe evidence is such that a reasonablejury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, [nc.,477 U.5.242, 248 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Id. Page 2ofS 2020-cA-008018-o Findinss of Fact. Analvsis and Ruline Plaintiff initiated this action alleging construction defects. See Second Amended Complaint dated November 23, 2022 and deemed filed by Order of this Court dated December 14, 2022 (the "Complaint"). The Complaint contains five counts against Defendant under theories of (I) failure to fund reserves, (II) negligence, (III) violation of $553.83, Fla. Stat., (IV) breach of warranties, (V) Deceptive and Unfair Trade Practices, and (VI) vicarious liabtlity. See Id. Defendant f,rled an Answer and Affirmative Defenses, containing the Twelfth Affrrmative Defense, which is the subj ect of the Motion. See Answer and Affirmative Defenses dated January 5, 2022. The Twelfth Affirmative Defense asserts that Defendant is entitled to an apportionment ofdamages "based upon the degree of fault ofother persons or entities, whether parties to this litigation or not," under Fla. Stat. $$ 768.31 and 768.81(3), and Fabre v. Marin,623 So. 2d,1182 (Fla. 1993). See Ia. Plaintiff s Motion asserts that Defendant's Twelfth Affirmative Defense fails as a matter of law and is negated based on theories of non-delegable duty and derivative liability. See Motion. In response, Defendant asserts that regardless of a parly's potential ultimate liability in a case, such party is nevertheless entitled to an apportionment of fault. See Response in Opposition to Motion. Defendant also asserts that it "seeks apportionment of fault against other parties who may have Page 3 of5 2020-cA-00801 8-o caused or contributed to the alleged damages and with whom Defendant's potential liability is not joint and several, including Plaintiff itself." See Id. Fla. Stat. $ 768.81 does not contain any exclusion or provision addressing non- delegable duties. Additionally, there are no legal authorities before this Court supporting the proposition that apportionment of fault is not available under the circumstances presented here . ln Cont'l Fla. Materials, Inc. v. Kusherman,the Court outlined the distinction between apportionment of fault and ultimate liability, explaining that together, these concepts insure "responsibility for one's own negligence, and ultimately who will pay - and to what extent of - the total loss." 91 So. 3d 159, 165 (Fla. 4th DCA 2012). Here, the Court finds that granting Plaintifls Motion would deprive the Defendant of its right under Florida law to have a trier of fact apportion fault. See Id. Accordingly, it is ORDERED and ADJUDGED: l. Plaintifls Amended Motion for Summary Judgment on Pulte's Twelfth Affirmative Defense is hereby DENIED. DONE AND ORDERED in Chambers at Orlando, Orange County,, Florida,, tr'i.3 day of 2023. Jorda n C t Court Judge Page 4 of5 2020-cA-008018-o CERTIFICATE OF SERVICE I IIEREB CER that the foregoing was filed with the Clerk of the Court this day 2023by using the Florida Courts E-Filing Portal System. Accordingl y, a copy o f the foregoing is being served on this day to all attomey(s)/interested parties identified on the ePortal Electronic Service List, via transmission of Notices of Electronic Filing generated by the ePortal System. Cathy Stephens, Judicial Assistant to Judge John E. Jordan Page 5 of 5 2020-cA-0080r 8-o Filing # 70485812 E-Filed 04/10/2018 12:06:47 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA CIVIL DIVISION LAKE WASHINGTON HOMEOWNERS Case No. 2016-CA-20344 ASSOCIATION, INC., a Florida non-profit corporation, Plaintiff, v. D.R. HORTON, INC. -JACKSONVILLE, a Florida corporation, Defendant. D.R. HORTON, INC. -JACKSONVILLE, a Florida corporation, Third-Party Plaintiff, v. 3'S A COMPANY OF CENTRAL FLORIDA, INC., et al., Third-Party Defendants. 84 LUMBAR COMPANY, Fourth Party Plaintiff, v. COZZI CONSTRUCTION CORPORATION, et al., Fourth Party Defendants. ORDER ON PLAINTIFF LAI{E WASHINGTON HOMEOWNERS ASSOCIATION, INC.'S MOTION FOR SUMMARY JUDGMENT ON I .R. HORTON'S LIABILITY FOR CONSTRUCTION DEFECTS AND DAMAGES THIS CAUSE carne before the Cout•t on the 28th day of Mai•ch, 2018 and the 3rd day of April, 2018, for heating on Plaintiff, Lake Washington Homeowners Association, Inc.'s Motion for Summary Judgment as to D.R. Horton's Liability for Construction Defects and Damages, (the "Motion") and having reviewed the Motion and the Count's file, heard the arguments of counsel, and being otherwise fully advised in the premises, the Court makes the following findings: The Court finds that Defendant D,R. Horton-Jacksonville, Inc. does not have a non- delegable duty in relation to the claims brought by the Association under Florida Statute §553.84. It is, therefore: ORD~I2ED AND ADJUDGED; 1. The Motion is DENIED. `~ ~^ SO ORDERED, in Open Court, at Viera, Brevard County, Florida, this ~ day of April, 2018. CHARL S J. ROBERTS CIRCUIT J DGE Copies to all counsel of record Filing # 181422893 E-Filed 09/08/2023 02:56:35 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA CASE NO. 2021-CA-008243 RAVINA AT EAST PARK HOMEOWNERS’ ASSOCIATION, INC. Plaintiff, v. D.R. HORTON, INC.; A.B. DESIGN GROUP, INC.; ADVANCED WRAPPING AND CONCRETE SOLUTIONS OF CENTRAL FLORIDA, INC.; BRAVEN PAINTING INC.; C & M CONCRETE CONSTRUCTION, INC.; COLLIS ROOFING, INC.; CR CONSTRUCTION, INC.; ODC CONSTRUCTION, LLC; RICHARD AND RICE CONSTRUCTION COMPANY, INC.; SOLAR-TITE, INC. Defendants. _______________________________________/ And the related Crossclaims and Third Party Claims _______________________________________/ Order Denying Plaintiff’s Motion for Partial Summary Judgment on Defendant, D.R. Horton, Inc.’s Non-Delegable Duty, and its Fifth, Sixth, and Twelfth Affirmative Defenses This action comes before the Court on Plaintiff’s Motion for Partial Summary Judgment on Defendant, D.R. Horton, Inc.’s Non-Delegable Duty, and its Fifth, Sixth, and Twelfth Affirmative Defenses (filed 4/4/2023). A hearing on the motion was held Page 1 of 8 on July 17, 2023. The Court has reviewed the motion, response, and supporting materials. For the reasons that follow, the Court denies the motion. This is a construction defect action arising from the construction of 15 buildings known as the Ravina Townhomes. Ravina at East Park Homeowners’ Association, Inc. filed suit against the general contractor D.R. Horton, Inc. and nine of its subcontractors based on alleged construction defects. Importantly, the Association does not assert contractual claims. The Association asserts two claims against D.R. Horton – negligence and violation of the Florida Building Code under section 553.84. DR. Horton raised a number of affirmative defenses, three of which are at issue. The Fifth Affirmative Defense asserts that the alleged damages were caused by the actions of the nine co-defendant subcontractors. The Sixth Affirmative Defense, directed to the building code claim, asserts that D.R. Horton cannot be held vicariously liable for alleged violations of the Florida Building Code. Similar to the Fifth Affirmative Defense, the Twelfth Affirmative Defense seeks to apportion liability under section 768.81 based on the alleged fault of the nine co-defendant subcontractors, unit owners, maintenance personnel, and others. Three related propositions resolve the Association’s motion: 1) D.R. Horton cannot be held jointly and severally liable in tort or under section 553.84; 2) D.R. Horton, as a general matter, cannot be held vicariously liable for the acts of subcontractors; and 3) D.R. Horton does not owe a nondelegable tort duty. These propositions are addressed in turn. 1. D.R. Horton cannot be held jointly and severally liable in tort or under section 553.84. The Court starts with the statutory text. Section 768.81(3), Florida Statutes provides that in “a negligence action, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” The statute eliminated joint and several liability. Page 2 of 8 “Negligence action” is broadly defined. It means “a civil action for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories.” § 768.81(1)(c), Fla. Stat. The Association’s negligence claim is plainly a “negligence action” under section 768.81(1)(c). Thus, by operation of section 768.81, joint and several liability cannot be had with respect to the Association’s negligence claim. The more novel question is whether the building code claim under section 553.84 permits joint and several liability. The Court concludes that it does not. First, it’s unclear whether joint and several liability could have ever applied under section 553.84 even without section 768.81’s abolition of joint and several liability. The building code cause of action imposes liability on “the person or party who committed the violation.” § 553.84, Fla. Stat. (emphasis added). The focus on the person that committed the violation does not lend itself to imposition of joint and several liability. See Sierra v. Allied Stores Corp., 538 So. 2d 943, 944 (Fla. 3d DCA 1989) (concluding that a store owner could not be liable for building code violation committed by independent contractor). The use of the definitive article “the” before “person or party” “limits that to which it refers to only one, to the exclusion of all others.” Golf Scoring Sys. Unlimted, Inc. v. Remedio, 877 So. 2d 827, 829 (Fla. 4th DCA 2004). Nothing about the language of section 553.84 suggests incorporation of the doctrine of joint and several liability. Second, even assuming the statutory cause of action imposed joint and several liability, section 768.81 would operate to abolish it because the statutory claim is “a civil action for damages based on a theory of negligence.” § 768.81(1)(c), Fla. Stat. Statutory causes of action can come within the orbit of a “negligence action” under section 768.81. See Peoples Gas Sys. v. Posen Constr., Inc., 322 So. 3d 604, 613 (Fla. 2021) (“Because [Florida’s Underground Facility Damage Prevention and Safety] Act authorizes a negligence-based cause of action, we conclude that the comparative fault statute governs claims brought under the Act.”). And it has been recognized that a building code claim “has its basis in a negligent act.” Stallings v. Kennedy Elect., Inc., 710 So. 2d 195, 196 (Fla. 5th DCA 1998). That understanding is confirmed by the text Page 3 of 8 of section 553.84 which permits plaintiffs to overcome a particular defense to a building code claim when “the person or party knew or should have known that the material violation existed” – the classic articulation of a negligence standard. In making this determination, the Court is guided by the analysis in Bre/Cocoa Beach Owner, L.L.C. v. Rolyn Companies, Inc., 2012 WL 12905849 (M.D. Fla. Nov. 30, 2012). There, after analyzing the nature of the statutory cause of action, the court declined to strike a Fabre defense because a building code claim is akin to a “negligence action.” Id. at * 7-8. Even if section 553.84 contemplated joint and several liability, the comparative fault statute applies to the Association’s statutory building code claim. This conclusion is bolstered by the fact that section 768.81 specifically identifies certain statutory claims that are excluded from the scope of the statute. Namely, the elimination of joint and several liability does not apply “to any cause of action as to which application of the doctrine of joint and several liability is specifically provided by chapter 403, chapter 498, chapter 517, chapter 542, or chapter 895.” § 768.81(4) Fla. Stat. Chapter 553 is not included despite the fact that the statutory building code claim had existed for decades preceding the abolition of joint and several liability. This shows two things. First, statutory causes of action are not outside the scope of the statute. Second, it supports the view that section 553.84 never contemplated joint and several liability in the first place. In short, comparative fault (not joint and several liability) applies to the Association’s negligence claim and its statutory building code claim. 2. D.R. Horton cannot be held vicariously liable for the negligent acts or omissions of subcontractors. The next proposition important to the resolution of the Association’s motion is a basic principle of the law of agency. That is, a party cannot be held vicariously liable for the acts of an independent subcontractor. See, e.g., Paul N. Howard Co. v. Affholder, Inc., 701 So. 3d 402, 404 (Fla. 5th DCA 1997) (general contractor “cannot be held vicariously, constructively, derivatively, or technically liable for [subcontractor’s] alleged negligence.”). Of course, if the alleged liability of the general Page 4 of 8 contractor is contractually based, the general contractor would be responsible for a breach regardless of who it contracted with to perform its contractual obligations. See, e.g., Diplomat Properties Ltd. P’ship v. Tecnoglass, LLC, 114 So. 3d 357, 362 (Fla. 4th DCA 2013) (distinguishing Paul N. Howard where the claim against the contractor sounded in contract instead of tort). That is not vicarious tort liability. The well-settled principle that a party is not liable for the acts of independent contractors applies to the Association’s negligence claim. The principle likewise applies to the building code claim. Again, the statute imposes liability on “the person or party who committed the violation.” § 553.84, Fla. Stat. And liability under the statute is “in accordance with common-law principles” such as those of basic agency law. Sierra, 538 So.2d at 944. D.R. Horton cannot be held vicariously liable for the acts of its subcontractors. 3. D.R. Horton does not owe a nondelegable tort duty. Understanding that section 768.81 applies and that a general contractor is not vicariously liable for the acts of subcontractors does not necessarily resolve the Association’s motion. That’s so because “under a system where a party is subject to a nondelegable duty, the party subject to the nondelegable duty is directly liable for the breach of that duty, and the assignment of liability based on the tortious acts of another is not a consideration.” Armiger v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 875 (Fla. 2d DCA 2010). The Association claims D.R. Horton owes a nondelegable tort duty that would prohibit the apportionment of fault to the subcontractors. In contrast to vicarious liability, which is indirect, the liability imposed by a nondelegable duty is direct. The cases concerning nondelegable duties have not provided a very helpful standard for assessing whether one exists. It is essentially a policy judgment. “Unfortunately, there are no specific criteria for determining whether or not a duty is nondelegable except for the rather ambiguous defining characteristic that the responsibility is so important to the community that the employer should not be allowed to transfer it to a third party.” Dixon v. Whitfield, 654 So. 2d 1230, 1232 (Fla. 1st DCA 1995). The focus, as far as the Court can tell, is the importance to the broader Page 5 of 8 public. For example, a nondelegable duty arises when a contractor is performing work involving safety risks posed by inherently dangerous or ultrahazardous activities. See Daniel v. Morris, 181 So. 3d 1195, 1198 n. 4 (Fla. 5th DCA 2015) (“Generally, [nondelegable duties] arise from the common law in the performance of ultrahazardous activities or activities that are of such importance to the community that responsibility cannot be transferred to a third party agent or independent contractor.”). There is no doubt that the general contractor’s obligation to perform with the appropriate level of workmanship is important. It is important to the parties to the contract. But it is not something that has a broader concern to the general public sufficient to recognize a nondelegable tort duty. Again, the fundamental distinction between contractual obligations and tort obligations is critical. “Contracts, by their nature, do not ordinarily permit the apportionment of fault to non-parties in the event of a breach” because “the duties undertaken in contracts are personal to those parties and therefore cannot be delegated.” Bre/Cocoa Beach Owner, LLC, 2012 WL 12905849 at *3. Contractual duties, of course, can be enforced by bringing a claim sounding in contract. Thus, in the colloquial sense, contractual duties are nondelegable. See Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959) (holding that a contractual duty of a general contractor to a hotel owner with whom it contracted was nondelegable and could not be committed to an independent subcontractor); Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d 862, 863 (Fla. 3d DCA 1993) (“Mills does not stand for the proposition that liability for breach of contractual duties automatically forms the basis of recovery in tort by parties not related to the contract . . . .”). But the Association has not sued D.R. Horton for breach of contract. This is a negligence action. The Association conflates a contractual duty (which, by its nature, is nondelegable) with a free flowing common law tort duty. A recent case – Garcia v. Southern Cleaning Service, Inc., 360 So. 3d 1209 (Fla. 1st DCA 2023) – is illustrative. There, Winn-Dixie contracted with a cleaning company to perform floor-cleaning services. The contractor, in turn, subcontracted the work to an independent Page 6 of 8 contractor. Id. at 1210. The plaintiff tripped and fell in a Winn Dixie store and brought an action against the contractor. Id. The contractor sought summary judgment arguing that it was not liable for the negligence of its subcontractor. Id. The trial court’s summary judgment in favor of the contractor was affirmed on appeal. The First DCA rejected the plaintiff’s contention that the contractor’s contract with Winn Dixie created a nondelegable duty. Id. at 1211-12. Garcia is in the context of the duty to maintain – an area where it has long been recognized that a property owner’s duty is nondelegable. Even in that context, a contractor hired to clean property does not owe a nondelegable tort duty. Garcia confirms the significant distinction between nondelegable duties to contracting parties and nondelegable tort duties that are limited to the rare circumstances where “the responsibility is so important to the community that the employer should not be allowed to transfer it to a third party.”” Dixon, 654 So. 2d at 1232. The cases cited by the Association do not support the existence of a nondelegable tort duty in this context. Nor is the Court persuaded by the Association’s related arguments that a nondelegable duty can be imposed based on Chapter 489 or D.R. Horton’s permit application. Chapter 489 is a regulatory statute that confers powers on the Department of Business and Professional Regulation or local licensing boards to enforce its provisions. Chapter 489 does not create a private cause of action. Murthy v. N. Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994). To remove any doubt, section 489.131(12) provides that “the provisions of this part shall not be construed to create a civil cause of action.” The Court declines the Association’s invitation to defy this command by finding a new nondelegable tort duty. 4. Conclusion Florida law does not support imposition of joint and several liability for negligence claims or building code violation claims. A general contractor cannot be held vicariously liable for the acts of independent subcontractors. And there is no support for the imposition of a general nondelegable tort duty owed by a general contractor in this context. These propositions preclude summary judgment on D.R. Horton’s Fifth, Sixth, and Twelfth Affirmative Defenses. Plaintiff’s Motion for Partial Page 7 of 8 Filing # 167236902 E-Filed 02/21/2023 03:06:06 PM IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT, IN AND FOR LAKE COUNTY, FLORIDA WATERSIDE POINTE HOMEOWNERS ASSOCIATION, INC., Plaintiff, CASE NO.: 2018-CA-002328, Consolidated with v. CASE NO. 2017-CA-002210 CALATLANTIC GROUP, INC., successor by merger to the former CALATLANTIC GROUP, INC., which was successor by merger to THE RYLAND GROUP, INC., Defendant. _____________________________________/ ORDER DENYING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO CALATLANTIC’S RESPONSIBILITY FOR ITS SUBCONTRACTORS AND THOSE IT HIRED TO DESIGN, CONSTRUCT, INSPECT, AND DEVELOP THE WATERSIDE POINTE COMMUNITY THIS CAUSE came before the Court on February 8, 2023 on Plaintiff, Waterside Pointe Homeowner’s Association, Inc.’s (“Plaintiff” or “Association”) Motion for Partial Summary Judgment as to Defendant, CalAtlantic Group, Inc.’s (“CalAtlantic”) Responsibility for its Subcontractors and Those It Hired to Design, Construct, Inspect, and Develop the Waterside Pointe Community Related to CalAtlantic’s Affirmative Defenses 23, 24, 25, and 27 filed on November 1, 2022. The Court, having considered Plaintiff’s Motion, CalAtlantic’s Response, Plaintiff’s Reply, the parties’ arguments, and relevant authorities, rules as follows: 132068423.1 I. Relevant Background 1. The Association is a homeowners association organized pursuant to Chapter 720, Florida Statutes and is responsible for operating the Waterside Pointe residential community located in Groveland, Florida (“Waterside Pointe,” “Community,” “Project,” or “Property”). 2. The Project was developed by The Ryland Group, Inc. (“Ryland”), which later merged with CalAtlantic. Ryland and CalAtlantic are collectively referred to herein as “CalAtlantic.” 3. It is undisputed that CalAtlantic was the general contractor for the original construction of the 104 townhomes in Waterside Pointe (“Townhomes”). 4. It is undisputed that CalAtlantic subcontracted with various independent contractors to construct the Townhomes. 5. It is undisputed that CalAtlantic contracted with various trades to design and construct the Waterside Pointe common area infrastructure and improvements. As further outlined below, however, there is a genuine dispute of material fact as to CalAtlantic’s role in entering into those common area contracts. 6. The operative complaint in this case is the Fourth Amended Complaint, as modified by the Court’s September 27, 2022 Order on CalAtlantic’s Motion to Strike Allegations in Plaintiff’s Fourth Amended Complaint. The causes of action asserted against CalAtlantic in the Fourth Amended Complaint are: (i) Count II – Breach of Implied Warranties as to common areas (horizontal construction components only) (4th Am. Compl. ¶¶ 2 132068423.1 93–101); (ii) Count III – Violation of Section 553.84, Florida Statutes (4th Am. Compl. ¶¶ 102–111); (iii) Count VIII – Negligence (4th Am. Compl. ¶¶ 147–155); and (iv) Count X – Violation of Section 720.307, Florida Statutes (4th Am. Compl. ¶¶ 162–166). Plaintiff is seeking to recover the cost to repair alleged construction defects in the counts seeking monetary damages against CalAtlantic in the Fourth Amended Complaint (i.e., Counts II, III, and VIII). 7. CalAtlantic filed an Answer and Affirmative Defenses to the Fourth Amended Complaint on October 4, 2022. 8. The Motion at issue relates to CalAtlantic’s Affirmative Defenses seeking to apportion liability to implicated trades and non-parties. II. The Court’s Ruling 9. The resolution of this Motion is guided by two fundamental principles of Florida law. First, subject to limited exceptions outlined in section 768.81(4), Florida Statutes, the Florida Legislature has abolished joint and several liability in “civil action[s] for damages based upon a theory of negligence, strict liability, products liability, professional malpractice whether couched in terms of contract or tort, or breach of warranty and like theories” and has made clear that apportionment of liability is the rule in Florida. See § 768.81, Fla. Stat. Second, the general rule in Florida is that one who hires an independent contractor cannot be liable for injuries caused by an independent contractor’s negligence. Carrasquillo v. Holiday Carpet Service, Inc., 615 So. 2d 862, 863 (Fla. 3d DCA 1993); E.J. Strickland Constr., Inc. v. Dep’t of Agriculture, 515 So. 2d 1331, 1335 (Fla. 5th DCA 1987). 3 132068423.1 10. In the face of this well-recognized authority, Plaintiff argues the theories of non-delegable duty and derivative liability preclude apportionment of damages for Plaintiff’s claims based in tort. These two theories run contrary to the general principles set forth above and, therefore, have been narrowly circumscribed in the law to certain specific contexts that are not at issue here. In fact, despite the frequency of lawsuits seeking damages for repairs in planned developments in Florida, Plaintiff has not presented the Court with any reported appellate decision that denies apportionment in a lawsuit similar to this one. Rather, Plaintiff presented the Court with inapposite authorities that arose in significantly different and narrow contexts where non-delegable duties and derivative liability have been traditionally recognized, as will be explained below. 11. Initially, Plaintiff argues that CalAtlantic assumed a non-delegable duty in tort pursuant to the undertaker’s doctrine explained in Clay Electric Coop. v. Johnson, 873 So. 2d 1182 (Fla. 2003). The Clay Electric case, however, addresses only the existence of duties in the first instance, not the concept of non-delegable duties. Id. at 1185. This is underscored by the fact that apportionment was actually anticipated to occur at trial in the Clay Electric case. See id. at 1195 (Pariente, Anstead, and Lewis, JJ., specially concurring) (explaining that the Court’s ruling as to the existence of an assumed duty in that case did not preclude apportionment to the motorist and pedestrian at trial). 12. Plaintiff next asserts that CalAtlantic assumed a non-delegable duty through contract. Namely, the sales contracts between CalAtlantic and the original purchasers. Plaintiff did not file a breach-of-contract claim in this case, 4 132068423.1 however, and Plaintiff (the Association) is not a party to the sales contracts between CalAtlantic and the original purchasers on which Plaintiff relies in any event. Accordingly, all of the contract-based cases cited by Plaintiff are distinguishable from this tort case. Although apportionment is precluded in certain breach-of-contract lawsuits, such reasoning does not extend to tort lawsuits where no breach of contract is alleged, which is the scenario here. Plaintiff’s Motion cites multiple breach-of-contract cases without acknowledging this critical distinction. The reasoning of those breach-of-contract cases do not apply in this tort lawsuit. 13. Plaintiff additionally relies on a building permit for one out of 104 Townhomes to argue that a building permit creates a non-delegable duty in tort. The Court would expect this broad proposition to arise repeatedly in Florida courts if it existed. Plaintiff cited only a single authority from over fifty years ago in a much different case, which does not support application of Plaintiff’s broad proposition to this case. See Bialkowicz v. Pan Am. Condo. No. 3, Inc., 215 So. 2d 767 (Fla. 3d DCA 1968). The Bialkowicz case arose in a quite different context where an inherently dangerous activity caused damage to another property, not the property for which the building permit was issued. Id. at 771–73. Plaintiff has presented the Court with no reported appellate decision that holds that a building permit creates a non-delegable duty in tort for alleged repair damages to the actual property for which the building permit was issued. Bialkowicz is not applicable to the circumstances in this case. 5 132068423.1 14. Plaintiff also relies on the City of Groveland Ordinance 2003-03-14, designating the property as a planned unit development (“PUD”) (“Ordinance”), to support its argument that “in developing the community as a whole, and by virtue of the PUD it obtained, CAG assumed the duty to comply with the applicable building codes in this case.” (Motion at 12–13). Plaintiff did not, however, cite any supporting legal authority and did not offer any explanation for how the Ordinance may create a non-delegable duty in tort owed by CalAtlantic under Florida law. The Court declines to hold that the Ordinance establishes the existence of a non-delegable duty owed by CalAtlantic, given the absence of legal or factual support for Plaintiff’s position in this regard. 15. Plaintiff further asserts that Chapter 489, Florida Statutes imposes a non-delegable duty on CalAtlantic because it was a business organization, whose licensed qualifying agent pulled the permits for the original construction of the Townhomes. The Court finds it noteworthy that Plaintiff has only named CalAtlantic as a Defendant in this case, and not any licensed individuals that pulled the permit for the original construction of the Townhomes or any common area infrastructure or improvements at issue in this case. Further, the only authorities that Plaintiff cites for this contention are non-binding trial court orders, which do not establish any non-delegable or statutory tort duty on a business organization that associates with a licensed individual such as CalAtlantic. 16. It is settled law in Florida that Chapter 489 does not create a private, civil right of action for the license-holder’s violation of supervisory 6 132068423.1 responsibilities (or any other responsibility under Chapter 489). Murthy v. N. Sinha Corp., 644 So. 2d 983, 985 (Fla. 1994); Scherer v. Villas Del Verde Homeowners Ass’n, Inc., 55 So. 3d 602, 604 (Fla. 2d DCA 2011). Following Murthy, the Florida Legislature enacted section 489.131(12), Florida Statutes, which declared that no civil causes of action were to be construed from Chapter 489 unless specifically provided. § 489.131(12), Fla. Stat. This section empowers governing authorities to punish for licensing infractions, such as a breach of a license-holder’s duty to supervise, through regulatory means. See § 489.131(3)– (7), Fla. Stat. Plaintiff has not provided the Court with any reported appellate decisions holding that Chapter 489 supersedes or eliminates the Florida Legislature’s expressed intent to (i) prohibit a private cause of action for licensing infractions; (ii) abolish joint and several liability in most tort cases; and (iii) establish apportionment in tort cases as the general rule in Florida. This Court declines to expand existing law by recognizing a non-delegable duty in tort inferred from the licensing statutes under the circumstances of this case. 17. Plaintiff alternatively suggests that CalAtlantic should be derivatively liable in tort. Plaintiff cites Grobman v. Posey, 863 So. 2d 1230 (Fla. 4th DCA 2003), which is a case involving med