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 ROYAL OAK HOMES, LLC’S
limited liability company; ADVANCED REPLY TO PLAINTIFF’S
WRAPPING AND CONCRETE RESPONSE IN OPPOSITION
SOLUTIONS OF CENTRAL FLORIDA, TO ROYAL OAK’S MOTION
INC., a Florida corporation; DON KING’S FOR PARTIAL SUMMARY
CONCRETE, INC., a Florida corporation; JUDGMENT AS TO COUNT I
HUGH MACDONALD CONSTRUCTION, OF PLAINTIFF’S SECOND
INC., a Florida corporation; IMPERIAL AMENDED COMPLAINT
BUILDING CORPORATION, a Florida FOR NEGLIGENCE AND
corporation; PREMIER PLASTERING OF VICARIOUS LIABILITY
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
135225659.1
/
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,
2
135225659.1
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.
/
ROYAL OAK HOMES, LLC’S REPLY TO PLAINTIFF’S RESPONSE IN
OPPOSITION TO ROYAL OAK’S MOTION FOR PARTIAL SUMMARY
JUDGMENT AS TO COUNT I OF PLAINTIFF’S SECOND AMENDED
COMPLAINT FOR NEGLIGENCE AND VICARIOUS LIABILITY
Defendant Royal Oak Homes, LLC (“Royal Oak”) replies to Plaintiff’s
Response in Opposition (“Plaintiff’s Opposition”) to Royal Oak’s Motion for Partial
Summary Judgment as to Count I of Plaintiff’s Second Amended Complaint for
Negligence and Vicarious Liability (“Royal Oak’s Motion”).
Plaintiff’s Opposition repeats the same arguments and same authorities –
some pages word-for-word – as Plaintiff’s Omnibus Motion for Partial Summary
Judgment as to Various Defendants’ Economic Loss Rule Affirmative Defense
3
135225659.1
(“Omnibus Motion”). 1 For this reason, Royal Oak refers the Court to its refutation
of these arguments and alleged authorities in its Response in Opposition to Plaintiff’s
Omnibus Motion (“Royal Oak’s Response”) as well as this Reply. Simply put,
Plaintiff’s Opposition and Plaintiff’s Omnibus Motion repeat arguments that rely on
“labels” for the subject matter of cases for application of the economic loss rule
without reference to the underlying reasoning for application of that rule. Plaintiff
either does not understand the economic loss rule or Plaintiff is mischaracterizing it
to this Court.
As explained in Royal Oak’s Response, the economic loss rule application by
the Florida Supreme Court in Tiara Condo. Assoc., Inc. v. Marsh & McLennan Cos.,
Inc., 110 So. 3de 399 (Fla. 2013), did not turn on simplistic labeling of the subject
matter of actions. The Tiara Court explained “the essence” of the economic loss rule
“is to prohibit a party from suing in tort for purely economic losses to a product or
object provided to another for consideration” because “contract principles [are]
more appropriate than tort principles without an accompanying physical injury or
property damage.” Id. at 405 (cites omitted) (emphasis added).
This principle behind the economic loss rule indisputably applies to this case.
Plaintiff cites no binding authority to the contrary. For all the reasons explained in
1
Compare, e.g., Omnibus Motion, pages 8-11, 12-14 to Plaintiff’s Opposition, pages 9-10 and 11-
15.
4
135225659.1
Royal Oak’s Motion, Royal Oak’s Response, and this Reply, Royal Oak’s Motion
should be granted and Plaintiff’s Omnibus Motion should be denied.
I. PLAINTIFF’S OPPOSITION OMITS THE UNDISPUTED FACTS
SUPPORTING APPLICATION OF THE ECOMOMIC LOSS RULE
TO PLAINTIFF’S NEGLIGENCE AND VICARIOUS LIABILITY
CLAIM IN ITS “BACKGROUND AND INTRODUCTION” AND
LATER FALSELY CLAIMS THEY DO NOT EXIST.
To reiterate, Plaintiff sues Royal Oak for alleged construction defects at the
Villas at Emerald Lake townhome community (“Emerald Lake”), constructed by
Royal Oak’s subcontractors. Plaintiff asserts claims against Royal Oak for
negligence and vicarious liability (Count I) and violation of the Florida Building
Code (Count II).2 Plaintiff asserts no breach of contract claim, even though every
original townhome owner had a written purchase agreement with express warranties
with Royal Oak.3
Plaintiff’s only alleged damages are economic losses. See Second Amd.
Compl., ¶ ¶ 72, 79, 87. Plaintiff’s experts opine on costs to remove and replace the
building envelope.4 Plaintiff has made no claim for personal injury or damage to
property other than these townhomes. Plaintiff’s “Background and Introduction”
2
Plaintiff voluntarily dismissed its claim for breach of implied warranties (Count III).
3
Affidavit of Jeff Fellows in Support of Royal Oak Homes, LLC’s Motion for Partial Summary
Judgment as to Claims for Breach of Implied Warranties and Consequential Damages (“Fellows
Affidavit”), ¶ 7 The Fellows Affidavit was filed separately with this Court on January 18, 2024.
4
See Deposition of Felix Martin, (“Martin Dep.”), 35:21-25, 36:1-15, 37:2-14, Ex. 6, pp. 3-4, 8-
19; Deposition of Sean Heaney, (“Heaney Dep.”), 35:3-10, 36:6-16, 37:4-7, Ex. 27. The deposition
transcripts of Plaintiff’s experts and relevant exhibits were filed with the Court on January 19,
2024.
5
135225659.1
omits any reference to this basis for Plaintiff’s claim for negligence and vicarious
liability, that is, Plaintiff seeks to recover only economic loss damages for
homeowners with contracts with warranties for those townhomes. Plaintiff
Opposition, pp. 2-3. Plaintiff even asserts later that Royal Oak “offers mere
supposition and conjecture as to how the townhomes may have been purchased.”
Plaintiff Opposition, p. 15. Royal Oak’s Motion explains that “Royal Oak sold its
townhomes in Emerald Lake to individual homeowners pursuant to purchase
agreements, which expressly addressed the matter of express and implied
warranties,” citing the Fellows Affidavit, which attached these purchase agreements.
Royal Oak’s Motion, p. 5. 5 Plaintiff may ignore or falsely represent that these facts
do not exist, but they do in fact exist, and they remain undisputed.
Plaintiff indisputably seeks to recover economic loss damages where there
was privity of contract and warranty for such damages. The economic loss rule
applies where contract and warranty principles exist between parties to address
economic losses that should not be circumvented by one party suing in tort to recover
5
Plaintiff knows these contracts and warranties exist because Plaintiff dropped its claim for breach
of implied warranties when faced with Royal Oak’s Motion for Partial Summary Judgment on that
claim because these contracts and their warranties disclaimed any implied warranties See Notice
of Dropping Claims Without Prejudice as to Plaintiff’s Count III – Breach of Implied Warranties
Against Defendant Royal Oak Homes, LLC Only, filed February 21, 2024. See also Defendant
Royal Oak Homes, LLC’s Motion for Partial Summary Judgment as to Court III of Plaintiff’s
Second Amended Complaint for Breach of Implied Warranties and Claims for Incidental and
Consequential Damages and Incorporated Memorandum of Law and Supporting Fellows Affidavit
filed January 19, 2024.
6
135225659.1
such losses. Tiara, at 402. (citations omitted). As the Court further explained, “strict
liability has not replaced warranty law as the remedy for frustrated economic
expectations in the sale of goods.” Id. at 405 (quoting Indemnity Ins. Co. of North
America v. American Aviation, Inc., 891 So. 2d 532, 541 (Fla. 2004)).6 For this
reason, the Court extended the economic loss rule to bar tort claims in cases
involving any goods where contractual arrangements and warranties defined the
economic expectations even absent direct privity between plaintiff and defendant.
Id. at 403-406. That is the case with Casa Clara Condo. Ass’n, Inc. v. Charley
Toppino and Sons, 620 So. 2d 1244 (Fla. 1993).
Casa Clara involved tort claims for construction defects by a homeowner who
had no contract or privity with the defendant contractor. 620 So. 2d at 1245. The
Court affirmed application of the economic loss rule to bar those claims for damages
to the building, including its component parts, because it was the relevant “product.”
Id., at 1246. The Court explained why the building, and its components, was a
“product” subject to the economic loss rule: “[i]f a house causes economic
disappointment by not meeting a purchaser’s expectations, the resulting failure to
receive the benefit of the bargain is a core concern of contract, not tort, law.” Id., at
6
Plaintiff again cites Indemnity Ins. Co. of North America v. American Aviation, Inc., 891 So. 2d
532 (Fla. 2004) in support of Plaintiff’s Opposition despite the fact that it supports Royal Oak’s
position, not Plaintiff’s position. Plaintiff’s Opposition, p. 19.
7
135225659.1
1247. Here, Plaintiff sues on behalf of homeowners in privity of contract with Royal
Oak, but Plaintiff fails to assert any breach of contract claim on their behalf. 7
The Tiara Court favorably cites Casa Clara and quotes it when the Court
explained that “[e]conomic losses” barred by this rule include relevant to this case
“damages for … costs of repair … without any claim of personal injury or damage
to other property.” Tiara, 110 So. 3d at 401 (emphasis added). The Tiara Court
nowhere expressly overrules or departs from Casa Clara.
Plaintiff and the Third District conceded in 2711 Hollywood Beach Condo.
Ass’n, Inc. v. TRG Holiday, Ltd., that Casa Clara was still good law following Tiara.
The Third District applied the economic loss rule, affirming partial summary
judgment for a supplier of fire suppression system components installed in a
condominium building. 307 So. 3d 869, 870-71 (Fla. 3d DCA 2020). The Third
District explained that the supplier’s fittings were an integral part of the building and
thus did not injure “other” property. Id. at 870. It held the economic loss rule barred
plaintiff’s negligence claims for “damages to replace [this system] and repair
damage to the building.” Id. at 871.
7
Plaintiff tries to distinguish the economic loss rule application to dismiss a homeowner’s
negligence claim for economic losses in Gazzara v. Pulte Home Corp., 207 F. Supp. 3d 1306, 1309
(M.D. Fla. 2016) on this false premise that Royal Oak offered no evidence regarding “how” the
townhomes were purchased. Plaintiff Opposition, p. 15. As demonstrated above, in Royal Oak’s
Motion, and in Royal Oak’s Response, Royal Oak presented undisputed evidence of contracts with
warranties between the homeowners and Royal Oak, and further Plaintiff’s own evidence of
economic losses solely in the form of alleged repair costs.
8
135225659.1
The Third District’s decision did not turn on whether the defendant was a
manufacturer rather than the installer of those components in the building. The Third
District followed Tiara and Casa Clara and held the plaintiff “Association bargained
for, purchased and received, a building” and defendant’s parts were just components
of what was purchased. Id. at 870-71. Necessarily, that purchase was the subject of
a contract that defined the parties’ bargain.
The decisions in Tiara, Casa Clara, and 2711 Hollywood Beach are
controlling and bar Plaintiff’s negligence and vicarious liability claim. Plaintiff seeks
costs to repair alleged damages to the townhome buildings due to alleged defects in
the construction of their building envelopes. The only claimed damages in their
experts’ damages reports are repairs to the buildings themselves or their components.
Thus, Florida’s economic loss rule requires entry of partial summary judgment on
Plaintiff’s negligence and vicarious liability claim.
II. PLAINTIFF’S OPPOSITION FALSELY DESCRIBES ROYAL OAK’S
DEFENSES, STATUTES, PLAINTIFF’S CLAIMS, AND
REITERATES SUBJECT MATTER LABELS THAT HAVE NO
BEARING ON APPLICATION OF THE ECONOMIC LOSS RULE.
Plaintiff again argues the economic loss rule is an affirmative defense.
Plaintiff Opposition, pp. 4-6. As Royal Oak’s Response explained, this is not true.
Royal Oak Response, p. 18. Plaintiff’s sole authority, cited for the first time in
Plaintiff’s Opposition, that it is an “affirmative defense” is inapposite. The issue
before that court was waiver because the economic loss rule argument was made for
9
135225659.1
the first time after trial. See Republic National Bank. v. Araujo, 697 So. 2d 164, 166
(Fla. 3d DCA 1997). 8 Plaintiff has contradicted this argument too, by relying on
authority for the proposition the economic loss rule is “not an affirmative defense,
but a restatement of various rules of contract law… .” Omnibus Motion, pp. 7-8.
Again, Florida law is clear the economic loss rule bars claims brought in tort for
purely economic losses absent exceptions inapplicable here. See Tiara, Casa Clara,
and 2711 Hollywood Beach, supra.
Plaintiff asserts for the first time that Royal Oak owed a “statutory duty” under
Section 553.84 to the public to comply with the Florida Building Code. Plaintiff
Response, p. 3. No such “duty” exists under that statute’s express language, which
provides a cause of action only against persons who “committed” the violation.
§553.84, Fla. Stat. There is no evidence Royal Oak “committed” a Florida Building
Code violation, nor could there be since general contractor supervision is excluded
from both the Florida Building Code and Section 553.84. Id; §553.73(2), Fla. Stat.9
Plaintiff rehashes its argument that “labels” of the case subject matter control
application of the economic loss rule. Omnibus Motion, pp. 9-18. Plaintiff cites no
8
All citations by the Third District to support this ruling involved untimely arguments and, thus,
waiver, not application of the economic loss rule. Id. (citations omitted).
9
Plaintiff’s further statement that Emerald Lake “was ultimately constructed with numerous code
violations” is Plaintiff’s unproven allegation, unsupported by any evidence citation, and strongly
disputed by Royal Oak. Plaintiff Response, p. 4.
10
135225659.1
case following Tiara that actually holds that is the reason for applying the economic
loss rule because it is not the reason for the rule.
As noted in Royal Oak’s Response, Plaintiff cites several personal injury cases
that address the application of products liability case law or other doctrines
applicable to personal injury tort claims to the facts of those cases. Plaintiff
Opposition, pp. 10-12; Royal Oak’s Response, pp. 11-13. There was no reason for
those courts to even address the economic loss rule because the damages sought were
not economic damages. 10
Plaintiff cites cases involving actions for damages based on personal services
provided by individuals or entities who may have owed plaintiff duties independent
of their contractual duties, such as claims based on alleged fiduciary duties or
negligent or fraudulent misrepresentations.11 Plaintiff also cites cases addressing the
meaning of “improvement to real property” under statutes determining the
10
See e.g., Easterday v. Masiello, 518 So. 2d 260 (Fla. 1988); Seitz v. Zac Smith & Co., Inc., 500
So. 2d 706 (Fla. 1st DCA 1987); Craft v. Wet N’ Wild, Inc., 489 So. 2d 1221 (Fla. 5th DCA 1986);
Neumann v. Davis Water and Waste, Inc., 433 So. 2d 559 (Fla. 2d DCA 1983), review denied, 441
So. 2d 632 (Fla.1983); Edward M. Chadbourne, Inc. v. Vaughn, 491 So.2d 551 (Fla.1986); Plaza
v. Fisher Dev., Inc., 971 So. 2d 918 (Fla. 3d DCA 2007); Simmons v. Rave Motion Pictures
Pensacola, L.L.C., 197 So. 3d 644 (Fla. 1st DCA 2016); Jackson v. L.A.W. Contracting Corp., 481
So. 2d 1290 (Fla. 5th DCA 1986).
11
Plaintiff Opposition, pp. 10-11; Royal Oak Response, p. 13; Kuehne v. FSM Capital
Management, LLC, 2013 WL 1814903 (S.D. Fla. Apr. 29, 2013); F.D.I.C. v. Floridian Title Grp.
Inc., 2013 WL 5237362 (S.D. Fla. Sept. 17, 2013).
11
135225659.1
applicability of the statute of limitations and its included repose provisions that have
nothing to do with the economic loss rule.12
Plaintiff does cite Mann v. Island Resorts Development, Inc., 2008 WL
5381381 (N.D. Fla. Dec. 19, 2008), where the court dismissed under the economic
loss rule a condominium purchaser’s negligence claim when that owner purchased
the condominium from an owner who plaintiff did not sue. Plaintiff Opposition, p.
14. The court explained this case did not involve parties who enjoyed privity of
contract. Id. at *2. Plaintiff also cites Martinez v. QBE Specialty Ins. Co., 2018 WL
4354831, *5 (M.D. Fla. Sept. 12, 2018), which granted dismissal of plaintiff’s
negligence claims because they “are barred by the economic loss rule.” Plaintiff
Opposition, p. 23. That court reasoned there was no difference between the alleged
failure to perform under the contract and the alleged negligence and, thus, the
economic loss rule barred the negligence claims. Id.
Here, again, Plaintiff is suing on behalf of the townhome owners, all of whom
had contracts with Royal Oak or others for the purchase of their townhomes. This
supports application of the economic loss rule under Tiara and Casa Clara even
under these cases cited by Plaintiff.13
12
Plaintiff Opposition, pp. 9, 21-22; Royal Oak’s Response, pp. 13-14; Harrell v. Ryland Group,
277 So. 3d 292 (Fla. 1st DCA 2019); Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S.
Elastomerics, Corp., 102 F.3d 1173 (11th Cir. 1997).
13
Plaintiff cites several trial court orders that Plaintiff claims support its position that the economic
loss rule does not preclude Plaintiff’s negligence and vicarious liability claim against Royal Oak.
Plaintiff Response, pp. 13-14. Royal Oak can and did provide this Court with favorable trial court
12
135225659.1
Lastly, Plaintiff again makes the meritless argument that the economic loss
rule does not apply to licensed professionals. Plaintiff Response, pp. 22-25; Royal
Oak’s Response, pp. 19-21. First, Plaintiff did not sue the “licensed professional” for
any reason, or Royal Oak for this reason. Second, certified general contractors are
not “licensed professionals” subject to liability for professional negligence, and
plaintiff cites no cases to the contrary. See Broward County v. CH2M Hill, Inc., 302
So. 2d 895, 902 (Fla. 4th DCA 2020); Garden v. Frier, 602 So. 2d 1273, 1275 (Fla.
1992). 14
III. CONCLUSION.
For all the reasons explained in Royal Oak’s Motion, Royal Oak’s Response,
and this Reply, Royal Oak’s Motion should be granted and Plaintiff’s Omnibus
Motion should be denied.
Respectfully submitted,
/s/ James Michael Walls
James Michael Walls
Florida Bar No. 706272
Luis Prats
Florida Bar No. 329096
orders, too. Royal Oak’s Motion, pp.10-11; Royal Oak’s Response, pp. 16-17. These are, of
course, non-binding authority.
14
For this reason, as explained in Royal Oak’s Response, Plaintiff’s authorities are all inapposite.
Royal Oak Response, pp. 19-20. See Grace and Naeem Uddin, Inc. v. Singer Architects, Inc., 278
So. 3d 89 (Fla. 4th DCA 2019) (supervising architect); Jerue v. Drummond Co., 2017 WL
10876737 (Fla. M.D. Aug.17, 2017) (dicta citation because case involved alleged property
contamination by mining company and no professional liability claim); Sunset Beach Investments,
LLC v. Kimley-Horn and Associates, Inc., 207 So. 3d 1012, 1017-18 (Fla. 4th DCA 2017)
(affirming summary judgment for “engineer intern” on claim for professional negligence).
13
135225659.1
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
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
14
135225659.1
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 ROYAL OAK HOMES, LLC’S limited liability company; ADVANCED REPLY TO PLAINTIFF’S WRAPPING AND CONCRETE RESPONSE IN OPPOSITION SOLUTIONS OF CENTRAL FLORIDA, TO ROYAL OAK’S MOTION INC., a Florida corporation; DON KING’S FOR PARTIAL SUMMARY CONCRETE, INC., a Florida corporation; JUDGMENT AS TO COUNT I HUGH MACDONALD CONSTRUCTION, OF PLAINTIFF’S SECOND INC., a Florida corporation; IMPERIAL AMENDED COMPLAINT BUILDING CORPORATION, a Florida FOR NEGLIGENCE AND corporation; PREMIER PLASTERING OF VICARIOUS LIABILITY 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 135225659.1 / 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, 2 135225659.1 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. / ROYAL OAK HOMES, LLC’S REPLY TO PLAINTIFF’S RESPONSE IN OPPOSITION TO ROYAL OAK’S MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT I OF PLAINTIFF’S SECOND AMENDED COMPLAINT FOR NEGLIGENCE AND VICARIOUS LIABILITY Defendant Royal Oak Homes, LLC (“Royal Oak”) replies to Plaintiff’s Response in Opposition (“Plaintiff’s Opposition”) to Royal Oak’s Motion for Partial Summary Judgment as to Count I of Plaintiff’s Second Amended Complaint for Negligence and Vicarious Liability (“Royal Oak’s Motion”). Plaintiff’s Opposition repeats the same arguments and same authorities – some pages word-for-word – as Plaintiff’s Omnibus Motion for Partial Summary Judgment as to Various Defendants’ Economic Loss Rule Affirmative Defense 3 135225659.1 (“Omnibus Motion”). 1 For this reason, Royal Oak refers the Court to its refutation of these arguments and alleged authorities in its Response in Opposition to Plaintiff’s Omnibus Motion (“Royal Oak’s Response”) as well as this Reply. Simply put, Plaintiff’s Opposition and Plaintiff’s Omnibus Motion repeat arguments that rely on “labels” for the subject matter of cases for application of the economic loss rule without reference to the underlying reasoning for application of that rule. Plaintiff either does not understand the economic loss rule or Plaintiff is mischaracterizing it to this Court. As explained in Royal Oak’s Response, the economic loss rule application by the Florida Supreme Court in Tiara Condo. Assoc., Inc. v. Marsh & McLennan Cos., Inc., 110 So. 3de 399 (Fla. 2013), did not turn on simplistic labeling of the subject matter of actions. The Tiara Court explained “the essence” of the economic loss rule “is to prohibit a party from suing in tort for purely economic losses to a product or object provided to another for consideration” because “contract principles [are] more appropriate than tort principles without an accompanying physical injury or property damage.” Id. at 405 (cites omitted) (emphasis added). This principle behind the economic loss rule indisputably applies to this case. Plaintiff cites no binding authority to the contrary. For all the reasons explained in 1 Compare, e.g., Omnibus Motion, pages 8-11, 12-14 to Plaintiff’s Opposition, pages 9-10 and 11- 15. 4 135225659.1 Royal Oak’s Motion, Royal Oak’s Response, and this Reply, Royal Oak’s Motion should be granted and Plaintiff’s Omnibus Motion should be denied. I. PLAINTIFF’S OPPOSITION OMITS THE UNDISPUTED FACTS SUPPORTING APPLICATION OF THE ECOMOMIC LOSS RULE TO PLAINTIFF’S NEGLIGENCE AND VICARIOUS LIABILITY CLAIM IN ITS “BACKGROUND AND INTRODUCTION” AND LATER FALSELY CLAIMS THEY DO NOT EXIST. To reiterate, Plaintiff sues Royal Oak for alleged construction defects at the Villas at Emerald Lake townhome community (“Emerald Lake”), constructed by Royal Oak’s subcontractors. Plaintiff asserts claims against Royal Oak for negligence and vicarious liability (Count I) and violation of the Florida Building Code (Count II).2 Plaintiff asserts no breach of contract claim, even though every original townhome owner had a written purchase agreement with express warranties with Royal Oak.3 Plaintiff’s only alleged damages are economic losses. See Second Amd. Compl., ¶ ¶ 72, 79, 87. Plaintiff’s experts opine on costs to remove and replace the building envelope.4 Plaintiff has made no claim for personal injury or damage to property other than these townhomes. Plaintiff’s “Background and Introduction” 2 Plaintiff voluntarily dismissed its claim for breach of implied warranties (Count III). 3 Affidavit of Jeff Fellows in Support of Royal Oak Homes, LLC’s Motion for Partial Summary Judgment as to Claims for Breach of Implied Warranties and Consequential Damages (“Fellows Affidavit”), ¶ 7 The Fellows Affidavit was filed separately with this Court on January 18, 2024. 4 See Deposition of Felix Martin, (“Martin Dep.”), 35:21-25, 36:1-15, 37:2-14, Ex. 6, pp. 3-4, 8- 19; Deposition of Sean Heaney, (“Heaney Dep.”), 35:3-10, 36:6-16, 37:4-7, Ex. 27. The deposition transcripts of Plaintiff’s experts and relevant exhibits were filed with the Court on January 19, 2024. 5 135225659.1 omits any reference to this basis for Plaintiff’s claim for negligence and vicarious liability, that is, Plaintiff seeks to recover only economic loss damages for homeowners with contracts with warranties for those townhomes. Plaintiff Opposition, pp. 2-3. Plaintiff even asserts later that Royal Oak “offers mere supposition and conjecture as to how the townhomes may have been purchased.” Plaintiff Opposition, p. 15. Royal Oak’s Motion explains that “Royal Oak sold its townhomes in Emerald Lake to individual homeowners pursuant to purchase agreements, which expressly addressed the matter of express and implied warranties,” citing the Fellows Affidavit, which attached these purchase agreements. Royal Oak’s Motion, p. 5. 5 Plaintiff may ignore or falsely represent that these facts do not exist, but they do in fact exist, and they remain undisputed. Plaintiff indisputably seeks to recover economic loss damages where there was privity of contract and warranty for such damages. The economic loss rule applies where contract and warranty principles exist between parties to address economic losses that should not be circumvented by one party suing in tort to recover 5 Plaintiff knows these contracts and warranties exist because Plaintiff dropped its claim for breach of implied warranties when faced with Royal Oak’s Motion for Partial Summary Judgment on that claim because these contracts and their warranties disclaimed any implied warranties See Notice of Dropping Claims Without Prejudice as to Plaintiff’s Count III – Breach of Implied Warranties Against Defendant Royal Oak Homes, LLC Only, filed February 21, 2024. See also Defendant Royal Oak Homes, LLC’s Motion for Partial Summary Judgment as to Court III of Plaintiff’s Second Amended Complaint for Breach of Implied Warranties and Claims for Incidental and Consequential Damages and Incorporated Memorandum of Law and Supporting Fellows Affidavit filed January 19, 2024. 6 135225659.1 such losses. Tiara, at 402. (citations omitted). As the Court further explained, “strict liability has not replaced warranty law as the remedy for frustrated economic expectations in the sale of goods.” Id. at 405 (quoting Indemnity Ins. Co. of North America v. American Aviation, Inc., 891 So. 2d 532, 541 (Fla. 2004)).6 For this reason, the Court extended the economic loss rule to bar tort claims in cases involving any goods where contractual arrangements and warranties defined the economic expectations even absent direct privity between plaintiff and defendant. Id. at 403-406. That is the case with Casa Clara Condo. Ass’n, Inc. v. Charley Toppino and Sons, 620 So. 2d 1244 (Fla. 1993). Casa Clara involved tort claims for construction defects by a homeowner who had no contract or privity with the defendant contractor. 620 So. 2d at 1245. The Court affirmed application of the economic loss rule to bar those claims for damages to the building, including its component parts, because it was the relevant “product.” Id., at 1246. The Court explained why the building, and its components, was a “product” subject to the economic loss rule: “[i]f a house causes economic disappointment by not meeting a purchaser’s expectations, the resulting failure to receive the benefit of the bargain is a core concern of contract, not tort, law.” Id., at 6 Plaintiff again cites Indemnity Ins. Co. of North America v. American Aviation, Inc., 891 So. 2d 532 (Fla. 2004) in support of Plaintiff’s Opposition despite the fact that it supports Royal Oak’s position, not Plaintiff’s position. Plaintiff’s Opposition, p. 19. 7 135225659.1 1247. Here, Plaintiff sues on behalf of homeowners in privity of contract with Royal Oak, but Plaintiff fails to assert any breach of contract claim on their behalf. 7 The Tiara Court favorably cites Casa Clara and quotes it when the Court explained that “[e]conomic losses” barred by this rule include relevant to this case “damages for … costs of repair … without any claim of personal injury or damage to other property.” Tiara, 110 So. 3d at 401 (emphasis added). The Tiara Court nowhere expressly overrules or departs from Casa Clara. Plaintiff and the Third District conceded in 2711 Hollywood Beach Condo. Ass’n, Inc. v. TRG Holiday, Ltd., that Casa Clara was still good law following Tiara. The Third District applied the economic loss rule, affirming partial summary judgment for a supplier of fire suppression system components installed in a condominium building. 307 So. 3d 869, 870-71 (Fla. 3d DCA 2020). The Third District explained that the supplier’s fittings were an integral part of the building and thus did not injure “other” property. Id. at 870. It held the economic loss rule barred plaintiff’s negligence claims for “damages to replace [this system] and repair damage to the building.” Id. at 871. 7 Plaintiff tries to distinguish the economic loss rule application to dismiss a homeowner’s negligence claim for economic losses in Gazzara v. Pulte Home Corp., 207 F. Supp. 3d 1306, 1309 (M.D. Fla. 2016) on this false premise that Royal Oak offered no evidence regarding “how” the townhomes were purchased. Plaintiff Opposition, p. 15. As demonstrated above, in Royal Oak’s Motion, and in Royal Oak’s Response, Royal Oak presented undisputed evidence of contracts with warranties between the homeowners and Royal Oak, and further Plaintiff’s own evidence of economic losses solely in the form of alleged repair costs. 8 135225659.1 The Third District’s decision did not turn on whether the defendant was a manufacturer rather than the installer of those components in the building. The Third District followed Tiara and Casa Clara and held the plaintiff “Association bargained for, purchased and received, a building” and defendant’s parts were just components of what was purchased. Id. at 870-71. Necessarily, that purchase was the subject of a contract that defined the parties’ bargain. The decisions in Tiara, Casa Clara, and 2711 Hollywood Beach are controlling and bar Plaintiff’s negligence and vicarious liability claim. Plaintiff seeks costs to repair alleged damages to the townhome buildings due to alleged defects in the construction of their building envelopes. The only claimed damages in their experts’ damages reports are repairs to the buildings themselves or their components. Thus, Florida’s economic loss rule requires entry of partial summary judgment on Plaintiff’s negligence and vicarious liability claim. II. PLAINTIFF’S OPPOSITION FALSELY DESCRIBES ROYAL OAK’S DEFENSES, STATUTES, PLAINTIFF’S CLAIMS, AND REITERATES SUBJECT MATTER LABELS THAT HAVE NO BEARING ON APPLICATION OF THE ECONOMIC LOSS RULE. Plaintiff again argues the economic loss rule is an affirmative defense. Plaintiff Opposition, pp. 4-6. As Royal Oak’s Response explained, this is not true. Royal Oak Response, p. 18. Plaintiff’s sole authority, cited for the first time in Plaintiff’s Opposition, that it is an “affirmative defense” is inapposite. The issue before that court was waiver because the economic loss rule argument was made for 9 135225659.1 the first time after trial. See Republic National Bank. v. Araujo, 697 So. 2d 164, 166 (Fla. 3d DCA 1997). 8 Plaintiff has contradicted this argument too, by relying on authority for the proposition the economic loss rule is “not an affirmative defense, but a restatement of various rules of contract law… .” Omnibus Motion, pp. 7-8. Again, Florida law is clear the economic loss rule bars claims brought in tort for purely economic losses absent exceptions inapplicable here. See Tiara, Casa Clara, and 2711 Hollywood Beach, supra. Plaintiff asserts for the first time that Royal Oak owed a “statutory duty” under Section 553.84 to the public to comply with the Florida Building Code. Plaintiff Response, p. 3. No such “duty” exists under that statute’s express language, which provides a cause of action only against persons who “committed” the violation. §553.84, Fla. Stat. There is no evidence Royal Oak “committed” a Florida Building Code violation, nor could there be since general contractor supervision is excluded from both the Florida Building Code and Section 553.84. Id; §553.73(2), Fla. Stat.9 Plaintiff rehashes its argument that “labels” of the case subject matter control application of the economic loss rule. Omnibus Motion, pp. 9-18. Plaintiff cites no 8 All citations by the Third District to support this ruling involved untimely arguments and, thus, waiver, not application of the economic loss rule. Id. (citations omitted). 9 Plaintiff’s further statement that Emerald Lake “was ultimately constructed with numerous code violations” is Plaintiff’s unproven allegation, unsupported by any evidence citation, and strongly disputed by Royal Oak. Plaintiff Response, p. 4. 10 135225659.1 case following Tiara that actually holds that is the reason for applying the economic loss rule because it is not the reason for the rule. As noted in Royal Oak’s Response, Plaintiff cites several personal injury cases that address the application of products liability case law or other doctrines applicable to personal injury tort claims to the facts of those cases. Plaintiff Opposition, pp. 10-12; Royal Oak’s Response, pp. 11-13. There was no reason for those courts to even address the economic loss rule because the damages sought were not economic damages. 10 Plaintiff cites cases involving actions for damages based on personal services provided by individuals or entities who may have owed plaintiff duties independent of their contractual duties, such as claims based on alleged fiduciary duties or negligent or fraudulent misrepresentations.11 Plaintiff also cites cases addressing the meaning of “improvement to real property” under statutes determining the 10 See e.g., Easterday v. Masiello, 518 So. 2d 260 (Fla. 1988); Seitz v. Zac Smith & Co., Inc., 500 So. 2d 706 (Fla. 1st DCA 1987); Craft v. Wet N’ Wild, Inc., 489 So. 2d 1221 (Fla. 5th DCA 1986); Neumann v. Davis Water and Waste, Inc., 433 So. 2d 559 (Fla. 2d DCA 1983), review denied, 441 So. 2d 632 (Fla.1983); Edward M. Chadbourne, Inc. v. Vaughn, 491 So.2d 551 (Fla.1986); Plaza v. Fisher Dev., Inc., 971 So. 2d 918 (Fla. 3d DCA 2007); Simmons v. Rave Motion Pictures Pensacola, L.L.C., 197 So. 3d 644 (Fla. 1st DCA 2016); Jackson v. L.A.W. Contracting Corp., 481 So. 2d 1290 (Fla. 5th DCA 1986). 11 Plaintiff Opposition, pp. 10-11; Royal Oak Response, p. 13; Kuehne v. FSM Capital Management, LLC, 2013 WL 1814903 (S.D. Fla. Apr. 29, 2013); F.D.I.C. v. Floridian Title Grp. Inc., 2013 WL 5237362 (S.D. Fla. Sept. 17, 2013). 11 135225659.1 applicability of the statute of limitations and its included repose provisions that have nothing to do with the economic loss rule.12 Plaintiff does cite Mann v. Island Resorts Development, Inc., 2008 WL 5381381 (N.D. Fla. Dec. 19, 2008), where the court dismissed under the economic loss rule a condominium purchaser’s negligence claim when that owner purchased the condominium from an owner who plaintiff did not sue. Plaintiff Opposition, p. 14. The court explained this case did not involve parties who enjoyed privity of contract. Id. at *2. Plaintiff also cites Martinez v. QBE Specialty Ins. Co., 2018 WL 4354831, *5 (M.D. Fla. Sept. 12, 2018), which granted dismissal of plaintiff’s negligence claims because they “are barred by the economic loss rule.” Plaintiff Opposition, p. 23. That court reasoned there was no difference between the alleged failure to perform under the contract and the alleged negligence and, thus, the economic loss rule barred the negligence claims. Id. Here, again, Plaintiff is suing on behalf of the townhome owners, all of whom had contracts with Royal Oak or others for the purchase of their townhomes. This supports application of the economic loss rule under Tiara and Casa Clara even under these cases cited by Plaintiff.13 12 Plaintiff Opposition, pp. 9, 21-22; Royal Oak’s Response, pp. 13-14; Harrell v. Ryland Group, 277 So. 3d 292 (Fla. 1st DCA 2019); Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173 (11th Cir. 1997). 13 Plaintiff cites several trial court orders that Plaintiff claims support its position that the economic loss rule does not preclude Plaintiff’s negligence and vicarious liability claim against Royal Oak. Plaintiff Response, pp. 13-14. Royal Oak can and did provide this Court with favorable trial court 12 135225659.1 Lastly, Plaintiff again makes the meritless argument that the economic loss rule does not apply to licensed professionals. Plaintiff Response, pp. 22-25; Royal Oak’s Response, pp. 19-21. First, Plaintiff did not sue the “licensed professional” for any reason, or Royal Oak for this reason. Second, certified general contractors are not “licensed professionals” subject to liability for professional negligence, and plaintiff cites no cases to the contrary. See Broward County v. CH2M Hill, Inc., 302 So. 2d 895, 902 (Fla. 4th DCA 2020); Garden v. Frier, 602 So. 2d 1273, 1275 (Fla. 1992). 14 III. CONCLUSION. For all the reasons explained in Royal Oak’s Motion, Royal Oak’s Response, and this Reply, Royal Oak’s Motion should be granted and Plaintiff’s Omnibus Motion should be denied. Respectfully submitted, /s/ James Michael Walls James Michael Walls Florida Bar No. 706272 Luis Prats Florida Bar No. 329096 orders, too. Royal Oak’s Motion, pp.10-11; Royal Oak’s Response, pp. 16-17. These are, of course, non-binding authority. 14 For this reason, as explained in Royal Oak’s Response, Plaintiff’s authorities are all inapposite. Royal Oak Response, pp. 19-20. See Grace and Naeem Uddin, Inc. v. Singer Architects, Inc., 278 So. 3d 89 (Fla. 4th DCA 2019) (supervising architect); Jerue v. Drummond Co., 2017 WL 10876737 (Fla. M.D. Aug.17, 2017) (dicta citation because case involved alleged property contamination by mining company and no professional liability claim); Sunset Beach Investments, LLC v. Kimley-Horn and Associates, Inc., 207 So. 3d 1012, 1017-18 (Fla. 4th DCA 2017) (affirming summary judgment for “engineer intern” on claim for professional negligence). 13 135225659.1 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 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 14 135225659.1